Can the bank ‘UNCLEAR’ cleared funds?

[leclerc]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think on the original thread I explained the 2-4-6 process and that it was my understanding that the bank could only debit the account post that process on the assumption that the OP had colluded with the person writing the cheque to defraud the bank. However, this is slightly unusual in that the cheque was lost then found but because the cheque was from the OP's mother then the idea of collusion is still on the table. Had it been from a complete stranger then I would have a slightly different viewpoint.
Without knowing the bank's defence to your attempt to sue them then I am not sure whether they would have any other defence to this action. When we know what their defence to your claim is then I'll come back to the thread.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

thanks for posts.

Des, I'm pleased that you might agree with me but why do you then think that I would not win? Once the cheque is cleared, the bank cannot simply take it back, can they?

So, does it hang on how a court would decide if the cheque was cleared? A look at the evidence of this would surely say that
I would simply not have been able to take the money out of the account on day 1 of the clearing cycle if the cheque was not cleared. It was also not just me who reached the view that the cheque had cleared, remember the call centre adviser, his manager, the cheque clearing team and the money management team etc all confirmed that the funds were cleared. They did not just say this without reflection, they checked and came back to confirm it. If that is not 'cleared', then what is? The bank has also, in my view, refused to supply the most important and telling tape recording.

I think everyone agrees with the certainty of fate rule but it just seems that no-one applies it when it works against the bank. However, in this scanario, the issue is not the certainty of fate but whether the bank can take back funds once cleared.

As an aside, the bank didn't actually credit me with £500, that was the Ombudsman and neither the bank nor I agreed with that so it was never taken.

On the issue of collusion, I don't know how to persuade you leclerc that there was no collusion, Apart from the fact that I (and my 85 year-old mother) just would not do that, the situation arose completely out of our control. I simply would not have been able to engineer all that happened. I spent a week trying to get the bank to find the cheque and remember the bank refused to make even the most basic search for it. Also, I assume that anyone deliberately colluding to arrange these events would presumably have removed the funds and closed the account immediately they were cleared rather than checking the internet and writing to the bank and following up with the Ombudsman etc.

I do agree with you leclerc though that it will be interesting to see what the bank will do in defence. To date they have not given an explanation. The bank has never said what happened to it, they have never said when they received it, they refuse to tell me when it arrived at the clearing centre etc. Why would they do that unless the cheque was never actually 'lost'? Obfuscation seems to be the main tactic. The claim was issued on the 16th March and their deadline is the 4th April I think.

Thanks again

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think you have a case, but I'm not the one you have to convince.
The small claims track is a bit of a lottery. No matter how strong a case you can never be sure of the outcome.
You must have noticed that even on this forum (which tends to be biased towards the poster) some members did not appreciate your position.
When it comes to court the judge may well concentrate on the generality that one should not make a profit from another's mistake. and unjust enrichment.
Your points about T&Cs could be swept aside
I hope I'm wrong.

[stevemLS]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Exactly Des, there is always the principle of unjust enrichment.

I engaged fully with the previous thread, but am not going to waste my time and effort to do so with this one.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

thanks for the responses.

I accept Des that the court may well not find in my favour, I doubt if I would get a specialist in banking law and this is a bit complicated for a judge simply waiting patiently to quietly retire in a year or two.

I don't think anyone is now suggesting that the cheque had not cleared. In any event I can see no legal argument to say that the cheque was not cleared. I do understand the moral issue here stevemls but you seem to have strayed from the essence of the thread, so I cannot engage with you either as you do not actually put forward any arguments for debate that I can see.

The ombudsman is there to do what seems 'reasonable in all the circumstances' to him personaly and subjectively and that is what he did. However, we have a banking system that clearly does not take either a moral or a legal view if it does not suit them - even the ethical bank - they are always unchallenged and it is no surprising as the banks control everything. I have learnt that the payments council is composed only of the big banks, the cheque and clearing company is composed only of the big banks, all of the historic organisations that have been found wanting and replaced by other organisation such as these are always replaced by different organsiations but who are always still under the control of the big banks. Even Ben Bernanke (apols for spelling if wrong and paraphrasing) said that he did not appreciate that executives of big businesses were prepared to let their companies sink if it was to their own personal benefit. This is the law of no consequences and look where that got us.

I do not claim to be any better or different from the bankers but I cannot see a moral difference here, so the test must be the legal one surely.

I have read Peter Birk's book on unjust enrichment and as I understand it, unjust enrichment is the 'mistaken payment of a debt not owed'. Where there is a contract with conditions that governs the situation, there can be no unjust enrichment. In fact it could be argued that is me who has unjustly enriched the bank.

I will let you know what happens but I think that this may have reached an end for the time being, thanks for your thoughts for now

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Succinctly put methinks

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

An update on events. The bank had not replied to the court by the required time so on Tuesday 7th April I asked for judgement to be entered.

This was unfortunately complicated by the fact that I had accidentally checked the box that said I would 'serve particulars separately'. I rang the court on the 7th to explain this error and they told me that if I sent a letter to the bank, with proof of posting, saying that I did not intend to send 'extra particulars' this would be ok. they also said that after I had sent the letter that I could immediately request judgement as the court had not received any papers from the bank by that time. The court said that my error would not affect the timescale as the bank had not written to the court saying that they had not received any particulars. Apparently the bank should have done that before the 7th if they were waiting for 'particulars'.

I sent the required letter to the bank by overnight delivery. I requested judgement from the court on Tuesday 7th and this was given on Wednesday 8th.

However, yesterday (Thursday 9th - i.e. the day after judgement was entered and the day after they would have received my letter about the particulars), I received a letter from the bank which they have dated the 7th April. This letter enclosed a copy of an acknowledgement of service form, which they have dated 23rd of March in which the bank said that it would defend the entire sum. However, to date the details on my small claim record on the moneyclaimonline site does not show that the bank has entered either an acknowledgement of service or a defence, so I still have no idea what their defence might be. I also don't know how the court would deal with this - given that the bank did not respond in time - now that judgement has been entered.

When I requested judgement I asked for the sum to be paid in full in 7 days, which would be the 15th presumably?

it's all very interesting to me anyway but I would welcome any comments you might have,

best regards,

Nicola

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well the Bank can apply to have the judgement set aside, and the case reheard.
If the bank had sent the acknowledgement of service or put in a defence within the time limit, the court must set the judgement aside.
If the time limits were not complied with it is up to the court to decide.

I shouldn't go on a spending spree yet, but I bet someone in the bank is in the dog house for missing the deadlines.

[basa48]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well the Bank can apply to have the judgement set aside, and the case reheard.
If the bank had sent the acknowledgement of service or put in a defence within the time limit, the court must set the judgement aside.
If the time limits were not complied with it is up to the court to decide.

I shouldn't go on a spending spree yet, but I bet someone in the bank is in the dog house for missing the deadlines.

I concur.

I was involved with a creditor who persistently missed deadlines for submitting documents and even missing hearings. Each and every time the judge adjourned and allowed the case to proceed !! :tinysmile_cry_t:

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

thanks for responses, much appreciated, and don't worry I didn't go on a spree last time even when the money WAS in the bank (or was it........ ha ha)

and..... ah, I suspected that might be the case. I was very disappointed when I found out about checking the box accidentally and then very surprised when the court said I could still request judgement be entered because that seemed to be my error and my logic would say that it is only right that they should have a reasonable time to respond. However, not much that has happened makes that much sense to me, my logic is entirely out of sync with the rules I think.

It did occur to me though that if the bank didn't want to make it look as if they accepted my case but didn't want the issue raised publicly either (in case they lost the principle), this could perhaps be a way to do it? The acknowledgement has been signed by a solicitor.

Do you know how long it would take for the court to update the on-line entry? Entering the judgement was done surprisingly quickly on line. So far, the bank has not asked for the judgement to be set aside either.

Would the bank definitely know that judgement had been entered? I only know because I looked it up, I haven't heard from the court by post or anything.

best wishes,

Nicola

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

" The acknowledgement has been signed by a solicitor."
They'll sign anything for a fee, even when they know their client doesn't have a case.

Judgement entered on 8th, posted on 9th, delivered on 10th. Questions now being asked in house!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

yes, I'm sure that's true, I assumed they have their own solicitor,

anyway at last someone at the bank having to think about it. It will be interesting to see what happens,

thanks for responses Des8

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello again,

well, it is now past the deadline for their payment and the bank has done nothing! No defence entered, no communication, nada in fact! Not exactly co-operative (or ethical) behaviour I think, but this is what has happened throughout.

regards,

Chris

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

So judgement for £9000 and they haven't paid?
Enforcement next step....... will we be seeing them on "the sheriffs are coming"?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

ha ha, maybe Des*, however, in another twist, the bank has now told the court that it DID file an acknowledgment of service! So the court is now looking into that. If the court has made a mistake the judgement will be overturned automatically, if not the bank will have to apply for that.

The bank has also sent me a letter with a copy of the defence. They have firstly asked for the case to be struck out as there is not enough detail. I did lodge the permitted maximum of characters though. Also, they then give the dates of the various transactions of deposits, bounces etc but the main case is that they say the sum in dispute is £9026 not £9052, so I need to look at the papers again and prepare my case in more detail. That's the weekend taken care of again!