Can the bank ‘UNCLEAR’ cleared funds?

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

err no.
Other logical explanation is that bank made a mistake, but they are not prepared to stand by it

Certainly from the information presented to you in your account statement, and the conversation you had with the bank on day 7, you were reassured that the money was yours.
The bank however had "got it wrong": your account was incorrectly marked as "cleared funds" and you were given incorrect information.
Many years ago, in the time prehistory, banks and insurance companies etc tended to honour what they had said, even to their immediate detriment, but no longer I regret.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello Des8,

ok, so, following the mistake line, what was the actual mistake?

The bank says that they made a mistake, however they do not actually say what the mistake was. The bank suggests that the mistake was made in telling me the funds were cleared when they were not. However, they also suggest that they did not get the cheque until the Friday, in which case how could I withdraw the funds the following day on what was apparently day 2 of the clearing cycle?

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Telling you funds were cleared when they were not was certainly an error.
The Coop only allow account holders to draw against cheques on the fourth day after deposit with them, so allowing you to draw on day 2 is also a mistake.

http://www.co-operativebank.co.uk/cu...clearing-cycle

T = Transaction day	The day a cheque deposit will appear as a credit on your account.
T + 2 = Transaction day plus 2 clearing days	The day you will start to earn interest on a cheque deposit. Or, the day the value of the cheque deposit will start to reduce the interest charged on your overdraft.
T + 4 = Transaction day plus 4 clearing days	The day you can withdraw against the cheque deposit in your current account. Until ‘certainty of fate' is reached a cheque can still be returned unpaid and the deposit removed from your account.
T + 6 = Transaction day plus 6 clearing days	The day you can withdraw against the cheque deposit in your savings/ deposit account.
T + 6 = Transaction day plus 6 clearing days	The day the cheque deposit receives ‘certainty of fate' and can no longer be debited from your account without your permission.
Cheques deposited after 4:30 or via the Post Office will be subject to one day's delay. For postal deposits, T is the day the cheque is received by the financial institution and credited to the account.

I think the bank made errors and tried to cover them by stretching the facts.

Your bank account shows you withdrawing £35000 on 17 Dec, which of course is pass the certainty of fate date for the first cheque using the chart above which allows 1 day delay for deposits via Post Office.
There is no way it can be said to be drawing against the second cheque which is shown on the account as a deposit on 14 DEC ie one working day prior to the drawing made on 17 Dec

At the end of the day however I think you will be lucky if you win
I admire your persistence, and think you have been misled by the bank, but finally the courts will probably/possibly say you cannot profit from a mistake and find against you.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello Des8,

thanks again, I think I agree with most of what you say and in the end it will come down to the opinion of the judge, assuming a hearing is granted, obviously I think that the case is good but I also appreciate that this doesn't mean that it is likely to win.

I will come back for a bit of advice about the process if that is ok with you, but it will be tomorrow,

thanks for your persistence too :tinysmile_twink_t2:

best wishes,

Nicola

- - - Updated - - -

p.s. I don't know where that picture came from!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

I wanted to just check a couple of things on the procedure if poss.

Firstly, you suggested I write to court to ask for POC to be amended. I had previously written to the court (MCOL) with dates that I couldn't go to a hearing - just in case there was one - and they said

"The case has not currently been listed for a hearing and the Defendant has until 8/6/15 to file a defence. If the Defendant does file a defence you will be notified in writing with a copy of the defence and instructions on replying”,

Notwithstanding that the bank has already filed a defence, in light of that should I still apply for the POC to be amended given that I have sent in the more detailed POCs already? Also, how does that fit with my ‘reply to defence’ that you spoke of? Could the information not be included in that? I see that to apply for the POC to be amended will be £75 and I wondered if it is necessary. I will do it if you think it is necessary of course.

Secondly, with the directions questionnaire, it says it is used to determine which track to allocate the case to, but it also says that the DQs are different depending on which track is used, this seems a bit chicken and egg to me, do you know which comes first?

Best wishes,

Nicola B

p.s. am out for the rest of the day so sadly will be later tonight before I can respond

[leclerc]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I prefer this interactive explanation of the process Des8

http://www.chequeandcredit.co.uk/fil...6._updated.swf

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

IMO (and others might well disagree) if you filed in court & served on the defence your amended POC, and it hasn't been queried I would be inclined to leave it at that, especially if the alterations were minor.
If questions arise later plead that you were acting in accordance with CPR1.1 &1.3 and were trying to assist the court, and if this was an error as an LIP you apologize unreservedly.

As a defence has been filed the court will send send you a directions questionnaire. When you return it you can also send your reply to the defence (copy to defendant)
The court will then allocate the case to the relevant court. You will get a notice of allocation plus "directions".
You will also get the opportunity to use the court's mediation service. In view of the costs to the bank of instructing solicitors or attending court themselves they may be prepared to negotiate a settlement with you at this stage, which you might find acceptable.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

I'm so sorry for not replying, I didn't seem to get the usual notice that the last two posts had been added. I would not have left them unreplied to. In fact, I thought I'd been abandoned! I’m glad I haven’t been.

I just came back on the site to check what Des8 had said earlier. Des8 is right I'm sure, I was really considering if, given his anticipation of not winning, whether it was worth spending £75, I'd rather spend it in so many other ways.

Firstly, thank you for your contribution Leclerc, but I'm not sure what your point is, can you be less subtle, I'm not too sophisticated myself and I genuinely don't understand what you mean. I do value your thoughts because I have actually tried to look at this from all sides, I also think that a sceptical analysis might be helpful because I'm sure that's how a judge might start off. I'd be really interested in your candid thoughts on this, don't worry about my feelings, (though somehow I don't think I need to say that). Also, what do you think you would do it you were in my position and why?

Secondly an update. I decided not to spend the £75 on making the application for the POC as above. However, the bank, filed a defence, (7 pages) and replied to everything that was in my further particulars, so I imagine that they would be accepted by the court now? They don't seem to be pursuing the strike out option anyway. I rang the court and they said that I had 17 days to file the reply to the defence, so it has to be in by next Thursday.

In the defence, the bank has asked for 'strict proof' of some things. I looked this up on google and it seems that this is an attempt to get you to show your entire hand, which I don’t think is a problem for me, other than the risk of omitting something important. Also that after that and the reply to the defence, you cannot introduce anything new, so I am preparing a reply to the defence with all my info. Also, it says that if I send in a reply to the defence I have to also submit a directions questionnaire at the same time, but when I looked at the directions questionnaire options you really need to know before you start which one you want, so another chicken and egg.

Whilst looking through the papers, I have found some interesting things, some by omission; for example, the bank does not say that which of the two cheques it applied to the account first, it could easily have done this, but I have a copy of one screen that I took at the time that suggests that the cheque paid in at the bank was applied first. Also, it does not say that the cheque was not cleared, it says I was 'mistakenly told that the cheque had cleared'. Mmmm, some ambiguity, I'm sure the bank thinks it was a mistake to tell me!

The bank has at last put some timetables on and some details in. Interestingly it states that the cheque paid in at the post office, that showed on the account on the 14^th, was at T+2 on the 14^th, even though the other guidelines on the website (that they claim apply), say that the timescale only starts when the item shows on the account. Surely then it would only be day T+1? There is no way you could withdraw £35,000 on T+1 if the funds were not cleared? Even Leclerc must agree that one surely?

Thanks again, I’m pleased you’re still with me,

xx

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

The bank seem to be obfuscating the issue.
Transaction day is the day that the account holder makes a deposit in the bank, not the day that the bank decide to credit the account. If we stayed with their version the certainty of fate could never be applied. That rule was to remove uncertainty caused by a bank's error.
In your case you made a deposit via the PO on 5/12/2012. Depending on which version of their rules are followed that cheque is considered deposited in your account on 6/12 or 7/12.
The timetable of what actually happened is not IMO that important. It is the timetable that should have been followed that is important.
Your account showed a credit on 14/12, and you would be entitled to assume it was the first cheque, in the absence of information to the contrary.

They have a 7 page defence.... hmm, trying to muddy the issues methinks.

[leclerc]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Des8 the cheque was paid through the post office so Transaction day 1 might be two working days later or three depending on the cut off point.
http://personal.natwest.com/personal...-services.html

If the customer is told that the cheque is cleared and then uses the funds then clearly the customer has done all they can to ensure that funds are available, ie if the bank makes an error then clearly it is misinformation that they gave.

It is getting quite confused.


BTW, nicola re the interactive clearing cycle, it's just a bit of minor banter

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Des8 the cheque was paid through the post office so Transaction day 1 might be two working days later or three depending on the cut off point.
http://personal.natwest.com/personal...-services.html

The coop bank says in T&Cs Plus 2 days, but elsewhere they say plus 1 day (and I ain't going back thru the thread to find exactly where that info came from!!)
It is getting quite confused.
Agreed


BTW, nicola re the interactive clearing cycle, it's just a bit of minor banter

a little levity helps keep us sane (I think)

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

thanks both. I'm def not getting notifications of your posts now, I will have to check more frequently.

I will cut and paste your points into my reply to defence Des8, I know that is the case but it is succinctly put. Other banks do specify in the T&Cs that the clearing cycle will start only from when it shows on the account and they have a right to make their own rules about cheques paid in at the PO, but once they have made them, within legitimate bounds, they have to be clear and they should stick to them.

There is no cut-off point for times of deposit at the post office interestingly, so T must be the date on the slip. That reminds me I must put a copy of the receipt in my documents list.

Leclerc, what do you think is the misinformation, a) that the bank told me the funds were cleared when they weren't or b) that the funds were cleared and the bank later said that they weren't? (or any other option)?

thanks again,

Nicola

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Regarding the delay due to depositing via PO, I have checked Coop wording and it says the delay can be "up to two business days".
This means that paying in on Wednesday 5/12/2012 certainty of fate could allow the depositor to assume the cash was hers if she hadn't heard to the contrary by close of business on 14/12/2012, especially as the bank advised the depositor on 14/12/2012 the deposit had cleared .
The clearing rules are clear: ". For customers it means that for the first time after paying in such cheques they can be sure at the end of six working days that the money is theirs. After this point, the customer is protected from loss if the cheque subsequently bounces, and the money cannot be reclaimed without their consent"
Withdrawal was made after 14/12/2012 and shows on account as on 17/12/2012.

The problem area IMO is because of the delay in depositing via PO. Was the delay in this instance 1 or 2 days?
From the bank's original advice it would seem to have been 1 day, so certainty of fate makes 14/12/2012 the final date.
However in effect they are saying they made a mistake and it was a 2 day delay making 17/12/2012 the final date.

So does the bank error affect the final date? the depositor has no way of knowing and acts accordingly, but the bank then starts acting as if this was an unauthorised overdraft when they reverse the withdrawal made by the depositor.

I think morally the bank should give way, but legally I can see the courts finding in favour of the bank.
Unless an acceptable compromise can be arranged at mediation stage ..........

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Thanks Des8,

In my reply to the defence I am arguing on the basis of two reasons, firstly the certainty of fate principle, but also the fact that, as a matter of fact, the funds were actually cleared. Once cleared, the bank cannot simply take them back, they become the 'guardian' of my funds apparently. The bank is allowed to clear funds whenever it wishes to and I have several recordings and both my and the bank's contemporaneous recordings (and will do an affidavit for the content of the missing recording), involving at least 5 people at the bank, that the funds were cleared. so the certainty of fate is maybe the less important.

I have prepared a long 'reply to defence' now it needs checking, editing and references added but it could go in now at a push but I have a few days to finesse it. I hope that the detail will a) ensure a hearing is agreed and b) make the bank think twice and maybe settle. I'm not inclined to go for mediation though. This has never really been about the money.

I'm away at the moment but will be back on Tuesday. I will keep an eye on the site though,

best wishes,

Nicola



Interestingly, The defence does not take that line in the defence, it talks of 6 working days as in the second paragraph and as you said before the guidelines on the site refer to 1 extra day.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I would agree with you that once funds are cleared the bank may not remove them without your express permission.
The problem is proving the funds were cleared, and it is there that the certainty of fate becomes important, especially if the bank claim they had marked their records incorrectly and so all five members made statements under a misapprehension and it was all a big mistake.

In small claims cases you should be aware the courts encourage Alternative Dispute Resolution, which includes mediation.
Whilst not mandatory it is considered an effective way sometimes to settle the dispute out of court.
If you unreasonably refuse to try mediation, or are unreasonable in the course of the case, the result. at the discretion of the judge, could be costs penalties against you.