Can the bank ‘UNCLEAR’ cleared funds?

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well Sharon, I tinks we will continue to disagree on this one.:tinysmile_kiss_t4:
If a bank tell me a cheque is cleared I would assume that any attempt to cancel it would fail.
The bank haven't said the funds are available (which means the transaction can still be reversed).
If a cheque is cleared the funds are certain.

However I still think a win by Nicki is unlikely

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Yes I know, I would just stay out of it but I am concerned about the costs risks on Nicola. Lets see what the defence says.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi, sorry that took a while as the file was in PDF and I had to buy a converter. I hope that I have readacted this fully, here goes....


DEFENCE

1. The Particulars of Claim dated 16 March 2015 ("Initial Particulars") lack particularity and disclose no reasonable grounds for bringing the Claim. Paragraphs referred to below are references to the unnumbered paragraphs in the Initial Particulars.
2. The Claimant stated, at paragraph 4 of the Initial Particulars, that she would provide the Defendant with detailed particulars of claim within 14 days of service of the claim form. No further particulars were received and the Defendant received a letter from the Claimant dated 7 April 2015, stating "/ am writing to notify you that I am not serving extra particulars relating to this claim'.
3. The Defence was filed at Court and served on the Defendant on 15 April 2015. After filing and serving the Defence, on 19 April 2015 the Claimant sent to the Defendant, and filed at Court, an unsigned document entitled "Further particulars" ("Further Particulars"). The Defendant then received the Directions Order dated 20 May 2015 requesting that it file and serve a Defence by 8 June 2015. Although the Claimant was out of time for serving the Further Particulars, in order to assist the Court, on a voluntary basis the Defendant has added a section to the Defence below (paragraphs 1O to 45) in response to the Further Particulars.
4. Paragraph 1 of the Initial Particulars is denied and the Claimant is put to strict proof, including of precisely when the sum of £9,052 was allegedly removed by the Defendant and from which account.
5. Paragraph 2 of the Initial Particulars is denied and the Claimant is put to strict proof, including details of the "mispredictiori' made by the Defendant and of the "commercial loss' which the Claimant alleges was suffered.
6. The Defendant avers that:
a. On 5 December 2012, the Claimant deposited a cheque in the sum of
£35,000 to the Post Office, to be paid into the joint account she shared with her partner, Mr Bell (account number xxxxxxxxxxx) ("Joint Account") ("First Cheque"). The First Cheque was drawn on the Claimant's mother's account;
b. On 13 December 2012, the Claimant's mother cancelled the First Cheque and wrote a second cheque for £35,000 paid out to the Claimant ("Second Cheque");
c. The First Cheque credited the Joint Account on 14 December 2012;
d. The Second Cheque was deposited at the Defendant's branch in Southampton on 13 December 2012, and credited the Joint Account on 14 December 2012;
e. The First Cheque was returned unpaid from the Joint Account on 17 December 2012;
f. On 17 December 2012 the sum of £35,000 was transferred by the Claimant from the Joint Account to another joint account held by the Claimant and Mr Bell with the Defendant. Following the transfer of this sum, the balance on the Joint Account was £9,027;
g. The Second Cheque was returned unpaid from the Joint Account on 19 December 2012, resulting in a negative (overdrawn) balance on the Joint Account as at 19 December 2012 of £25,973;
h. As a result of the negative (overdrawn) balance on the Joint Account, interest of £209.47 and charges of £55 were applied to the Joint Account;
i. On 4 February 2013 funds were received by the Defendant to clear the negative (overdrawn) balance on the Joint Account; and
j. The interest and charges incurred as a result of the negative (overdrawn) balance on the Joint Account (referred to at paragraph 6(h) above) were refunded by the Defendant on 6 February 2013. The Claimant has therefore suffered no loss.
7. Paragraph 3 of the Initial Particulars is denied and the Claimant is put to strict proof as to when the sum of £9,052 was "removed' from the Claimant's account as alleged.
8. Paragraph 4 of the Initial Particulars is denied. The Claimant is put to strict proof as to precisely when and how the Defendant has been "harassing' the Claimant "with telephone'.
9. Paragraph 5 of the Initial Particulars is denied and the Claimant is put to strict proof of the basis on which she is claiming interest of a rate of £500 per day.

Response to the Further Particulars

10. Paragraphs referred to below are references to numbered paragraphs in the unsigned document entitled "Further particulars" sent to the Defendant under cover of an emailfrom the Claimant on 19 April 2015.
11. Paragraph 1 is admitted to the extent that the Claimant has held the Joint Account for over 30 years.
12. Paragraph 2 is admitted to the extent that the Claimant deposited a cheque for £35,000 at the Post Office.
13. Paragraph 3 is not admitted and the Claimant is put to strict proof of the
"differing and incorrect explanations' allegedly given.
14. As to paragraph 4, it is admitted that the Defendant wrote to the Claimant on 13 December 2012 stating that "the cheque sent for £35,000 to the Co* operative Bank on 5 December 2012 [the First Cheque] has not been received as of the 13 December 9:54arrl'. The balance on the Joint Account as at 13 December 2012 was £8,915.47.
15. As to paragraph 5, it is admitted that the Claimant's mother cancelled the First Cheque. It is denied that this was done at the Claimant's suggestion. It is admitted, as set out at paragraphs 6(b) and 6(c) above, that the Second Cheque was drawn on the account of the Claimant's mother and was paid into the Southampton branch on 13 December 2012 and credited the Joint Account on 14 December 2012.
16. As to paragraph 6, it is admitted that on 14 December 2012 two credits of
£35,000 appeared on the Joint Account. Following its cancellation, the First Cheque was not returned unpaid until 17 December 2012.
17. Paragraph 7 is admitted.
18. As to paragraph 8, it is admitted that the Bank was aware that the First Cheque had been stopped (it had been told so by the Claimant). It is also admitted that the Bank mistakenly told the Claimant that the First Cheque had cleared. The Bank acknowledged this error to the Claimant in a letter dated
23 January 2013. Save for this, the remainder of paragraph 8 is not admitted and the Claimant is put to strict proof.
19. Paragraph 9 is not admitted and the Claimant is put to strict proof.
20. As to paragraph 10, it is admitted that the Defendant has been unable to obtain a recording of the second call from Mr Call Centre Adviser to the Claimant on 14 December 2012. However, it is denied that the Defendant is deliberately withholding or has destroyed that recording as alleged. The Defendant has attempted to obtain a recording of the call but has been unable to do so.
21. Paragraph 11 is not admitted and the Claimant is put to strict proof.
22. As to paragraphs 12 and 13, it is not admitted what investigations the Claimant undertook and the Claimant is put to strict proof as to the outcome of those investigations. It is admitted that there is a principle known as "Certainty of Fate". However, for the following reasons it is denied that the funds deposited by the First Cheque were the Claimant's to keep under the Joint Account terms and conditions or because of the Certainty of Fate principle. Whilst the First Cheque was deposited at the Post Office on 5 December 2012, it did not arrive at the cheque clearing centre until Thursday 13 December 2012. The Defendant has been unable to establish the reasons for this delay. The First Cheque then credited the Joint Account on Friday 14 December 2012 (being "T+2" the second day of the clearing cycle). The First Cheque would therefore not have been fully clear until "T + 6", four business days later, being after close of business on Thursday 20 December 2012. These timescales are consistent with those published on the Cheque and Credit Clearing Company website. As pleaded at paragraphs 6(b) and 6(e) above, the First Cheque was cancelled by the Claimant's mother on 13 December 2012 and returned unpaid from the Joint Account on 17 December 2012. The terms and conditions for the Joint Account provide that at the end of six business days (being after close of business on 20 December 2012), the cheque is cleared (clause 2.2).
23. As to paragraph 14, it is admitted that the Defendant is obliged to give customers details about their accounts in clear and understandable language. As stated at paragraph 18 above, it is admitted that the Bank mistakenly told the Claimant that the First Cheque had cleared. The Bank acknowledged this error to the Claimant in a letter dated 23 January 2013.
24. Paragraph 15 is denied. For the reasons explained at paragraph 22 above, the First Cheque did not clear the Joint Account.
25. As to paragraph 16, it is noted that the Claimant decided to "test' whether the "funds were cleared and hers to keep'. It is admitted that the Claimant transferred £35,000 out of the Joint Account on 17 December 2012. As pleaded at paragraphs 6(c) and 6(e) above, the First Cheque was cancelled by the Claimant's mother (at the Claimant's request) on 13 December 2012 and was returned unpaid from the Joint Account on 17 December 2012. The balance on the Joint Account on 17 December 2012 following the return of the First Cheque was £9,027.
26. As to paragraphs 17 and 18, it is denied that on 17 December 2012 there was a large overdrawn balance on the Joint Account. On 17 December 2012 the balance on the Joint Account was £9,027. As pleaded at paragraph 6(g) above, the Second Cheque was returned unpaid from the Joint Account on 19 December 2012, resulting in a negative (overdrawn) balance on the Joint Account as at 19 December 2012 of £25,973. The Defendant did not "remove' the sum of £9,027 from the Joint Account. The balance of £9,027 was the balance remaining on the Joint Account on 17 December 2012, before the Second Cheque had been returned unpaid.
27. As to paragraph 19, as a result of the negative (overdrawn) balance on the Joint Account, it is admitted that items were returned unpaid. This was in accordance with the standard terms and conditions for the Joint Account which provide that "if [the Claimant] withdraws some or all of the amount of a cheque which is later returned unpaid and this withdrawal or the unpaid cheque causes [the Claimant's] account to go overdrawn, this will be considered an informal request to access [the Defendant's] overdraft services' (clause 2.2). As pleaded at paragraphs 6 (h) to 0) above, as a result of the negative (overdrawn) balance on the Joint Account, interest of £209.47 and charges of £55 were applied to the Joint Account. These were subsequently refunded by the Defendant and the Claimant has therefore suffered no loss.
28. As to paragraph 20, it is admitted that the Defendant wrote to the Claimant on 17 December 2012 to confirm that the First Cheque had been returned unpaid and that the Claimant wrote to the Defendant on 19 December 2012 asking for confirmation that she could use her account as normal.
29. Paragraph 21 is denied. The Defendant did investigate the Claimant's complaint and advised that the Defendant had up to 8 weeks to respond in accordance with rules governing dispute resolution of complaints set out in the Financial Services Authority Handbook (now the Financial Conduct Authority Handbook). It is denied that the Claimant was forced to "effectively close' the Joint Account whilst this investigation was on-going.
30. As to paragraphs 22 and 23 it is admitted that, due to the overdrawn balance on the Joint Account, standard money management calls were made by the Defendant to the Claimant. To the best of the Defendant's knowledge, two calls were made at a weekend.
31. As to paragraphs 24 and 25, as pleaded at paragraphs 6 (h) to U) above, as a result of the negative (overdrawn) balance on the Joint Account, interest of
£209.47 and charges of £55 were applied to the Joint Account and were subsequently refunded by the Defendant, once the Claimant had repaid the overdraft on the Joint Account. The Claimant has therefore suffered no loss. To the extent that it is alleged, the Defendant denies any "duress'.
32. The Defendant is unable to plead to paragraph 26 as it is unclear what "result of investigatiori' the Claimant is referring to. The progress of the First Cheque through the clearing cycle is explained at paragraph 22 above.
33. The Defendant is unable to plead to paragraph 27 as it is unclear what "report' the Claimant is referring to. The Claimant was aware that both the First Cheque and the Second Cheque had been stopped by her mother and the Defendant was authorised to return the First Cheque and the Second Cheque unpaid.
34. Paragraph 28 is denied. Whilst the Defendant initially told the Claimant, mistakenly, that the First Cheque had cleared, the clearing timescales were subsequently explained to the Claimant. In addition, the Claimant was aware that both the First Cheque and the Second Cheque had been stopped by her mother and therefore could not have cleared.
35. Paragraph 29 is denied. In its letter to the Claimant of 23 January 2012, the Defendant referred the Claimant to the Joint Account terms and conditions and to the publicised cheque clearing timescales on the Defendant's website.
36. The Defendant is unable to plead to paragraph 30 as it is not clear what the Claimant is alleging. The £35,000 was transferred from the Joint Account by the Claimant on 17 December 2012.
37. As to paragraph 31, it is admitted that the Joint Account did not have, and had never had, an overdraft facility. Paragraph 27 above is repeated. It is unclear what allegation the Claimant is making in the final sentence of paragraph 31. The overdrawn balance on the Joint Account of £25,973 was caused by the cancellation of the Second Cheque (and it being returned unpaid) following the transfer of £35,000 by the Claimant from the Joint Account.

38.The Defendant is unable to plead to paragraph 32 because it is unclear what the Claimant is alleging. For the reasons explained at paragraph 22 above, it is denied that the First Cheque or the Second Cheque cleared the Joint Account.
39. Paragraph 33 is denied. The sum of £9,027 was not "removed' from the Joint Account as alleged. As explained at paragraph 26 above, the sum of £9,027 was the balance on the Joint Account, before the Second Cheque had been returned unpaid.
40. As to paragraph 34, it is unclear what the Claimant is alleging but it is denied that the Claimant was not authorised to return the First Cheque and Second Cheque unpaid. It is repeated that the Claimant was aware that the First Cheque and the Second Cheque had been stopped by her mother and the Defendant was authorised to return the First Cheque and Second Cheque unpaid. Regarding the "informal overdraft' , paragraph 36 above is repeated.
41. .The Defendant is unable to plead to paragraph 35 because it is unclear what the Claimant is alleging or of the relevance of the case referred to.
42. The Defendant is unable to plead to paragraph 36 because it is unclear what the Claimant is alleging. For the reasons explained above, neither the First Cheque nor the Second Cheque cleared the Joint Account.
43. The Defendant is unable to plead to paragraph 37. Paragraph 25 above is repeated as to the transfer of the £35,000 by the Defendant and the resulting balance of £9,027.
44. Paragraph 38 is denied. For the reasons explained above, it is denied that the First Cheque or the Second Cheque cleared the Joint Account.
45. As to paragraph 39, it is noted that the Claimant believes the interest rate of
£22 per day is correct but it is denied that any interest is due to the Clamant.


Statement of Truth

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

9. Paragraph 5 of the Initial Particulars is denied and the Claimant is put to strict proof of the basis on which she is claiming interest of a rate of £500 per day.

so umm yes what basis are you claiming that on ? statutory s.69 interest @ 8% per annum ? on £10k would be approx £2.20 a day

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

As the defence refers a lot to your particulars and further particulars it would be useful to see those too to cross reference.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

I didn't claim £500 a day interest, I just ticked the box that said 'do you wish to claim interest?' I don't know where the bank got that from, they don't say. I hope I've redacted the following POCs ok

In the County Court Business Centre Claim Number XXX

Between:
Nicola Bell – Claimant

and

The Defendant Bank plc. – Defendant

In relation to the request for the case to be struck out.

1. This case was issued on 16^th March 2015.
2. I received no response from the defendant.
3. On 8^th April 2015, judgment was entered against the defendant in default. I have received a sealed copy of the judgment.
4. After judgment was entered the Defendant notified me by email that it sent an acknowledgement of service to the court and intended to defend the claim. It did not send me a copy of this acknowledgment earlier, which it should have served at the same time as it served the court.
5. On April 15^th I received an email from the defendant attaching a copy of the defence and a covering letter.
6. I understand that the defendant is now seeking to have the claim struck out on the basis of lack of particularity.
7. The defendant is very familiar with the case. It has been the subject of an investigation by the bank (that took 8 weeks) and the ombudsman. The bank is fully aware of the details.
8. Notwithstanding drafting errors on both sides and whether or not there are sufficient particulars, the fundamental issue is that the defendant is simply too late.
9. The defendant is a large clearing bank that is being professionally represented; it should be aware of and able to comply with the timescales.
10. In my view the defendant has provided no defence. It merely states facts that are uncontested. It gives no legal grounds for its case.
11. The defendant does not address the central issue that the funds were cleared or explain why it thinks it had a right to the funds, which in my view, were cleared funds on my account.
12. In my view, this is part of a continuing pattern of behaviour of incompetence and delay by the defendant that is the same pattern that has led to this case arising in the first instance and the judgment should stand.

With regard to further particulars

1. I completed the on-line form using the maximum of characters allowable. As this was the maximum number of characters allowed I assumed that this would be the correct level of explanation necessary at that stage.
2. However, as the defendant is now seeking for the case to be struck out as it ‘lacks particularity and discloses no reasonable grounds for bringing the claim” and that ‘the claim is an abuse of process’. I submit more detailed information below to demonstrate that this is a reasonable claim.

Further particulars.

1. I have held account no 14172490 with the Defendant Bank for over 30 years. All the details in these particulars relate to that account.
2. On Wednesday 5^th of December 2012 I deposited a cheque for £35,000 from my mother via the Post Office following the correct procedure. I attach?? a copy of the receipt for that deposit.
3. The cheque did not appear on my account. Between 10^th and 12^th of December, the bank repeatedly refused to look for the cheque and gave me differing and incorrect explanations about the relevant processes.
4. After 8 days, on 13^th December, even though they had not looked for it, the bank told me that the cheque was definitely not at the bank, they confirmed this in writing. At the time I had over £9,000 of cleared funds in my account.
5. Later that day, notwithstanding the defendant’s refusal to check its own records and at the request of the defendant, my mother contacted her bank and, as suggested by the defendant she placed a stop on the cheque. My mother wrote a replacement cheque that I deposited directly into a branch.
6. On Friday 14^th of December 2 credits of £35,000 were shown on my account.
7. I immediately rang the bank. The bank was unable to explain how the 2 cheques had appeared simultaneously and the first cheque, which was ‘definitely not at the bank’ the day before, had now appeared on the account.
8. The bank was aware that the first cheque had been stopped. However, I was told most emphatically that the first cheque had cleared, that the funds were now guaranteed on the account, that it was my money and that I could do what I wanted with it. I did not believe this and the adviser checked with both his line manager and with the cheque clearing department.
9. The adviser rang me back to confirm that this is indeed the case and confirmed that, even if the cheque had been for a million pounds, once cleared, they are mine to keep. He said this was normal practice when the funds took so long to appear on the account.
10. Despite my best efforts involving the Information Commissioner’s Office, the Defendant Bank fails to provide a copy of Call Centre Adviser’s second call to me. In my view, they are deliberately withholding or have destroyed that recording.
11. Call Centre Adviser told me that both cheques would be presented to my mother’s account. When I told my mother this, she was very concerned that this would cause her own account to go overdrawn. She therefore decided to cancel the second cheque and did so the same day.
12. The next day I investigated whether it could be true that the funds from the first cheque could be cleared and mine to keep. I used Google, Wikipedia, OFT, Which? and CAB websites. Then I checked the Terms and Conditions on my account, I looked at the Cheque and Clearing Company Limited’s website and I found that however irrational it appears, there is a principal called ‘Certainty of Fate’, introduced in December 2007. This principle meant that the funds from the £35,000 cheque were mine to keep. There are three main reasons for this.
13. The first reason is that to comply with its privileged position as a clearing bank, any bank that accepts payments through the Post Office has an obligation to make clear to its customers the maximum number of days after deposit that can elapse before ‘Certainty of Fate’ is reached, at that stage the funds are irretrievably cleared. Under the Defendant Bank’s terms and conditions the relevant time is 6 days unless fraud was involved. In my case, more than 6 days had elapsed. The funds therefore become mine to keep under the terms of the contract.
14. The second reason is that under the banking regulations, clearing banks are obliged to give customers accurate accounts of their funds in clear and understandable language. The bank made it clear to me that the funds were cleared and mine to keep. This was not a bank error by an unprepared call centre adviser, the issue had been carefully checked and also confirmed by both a manager and by the Money Management Team later.
15. The third reason is that the bank has the power to clear funds at any time. However, when the bank clears funds without first receiving the money from the paying bank, it takes a commercial risk. I believe that due to its delay in handling the first cheque and in expectation of the second cheque clearing, the bank took the decision to clear the first cheque.
16. When I realised that it could be true that the funds were cleared and mine to keep, I decided to test this. I found that I was indeed able to transfer £35,000 out of the account, leaving my existing cleared funds of over £9,000 in the account as well as the £35,000 shown from the second cheque awaiting clearance. I accept the defendant’s figure of £9027 in this regard as the applicable sum.
17. On 17^th December there was a large overdrawn balance on the account. I immediately rang the bank to ask them what had happened. I was also contacted by the Money Management Team. The Money Management team confirmed that their record showed one amount of £35,000 was cleared funds and the other cheque was waiting to clear.
18. On 19^th December, when the second cheque was returned to the bank unpaid, the bank removed £35,000 from my account. This was made up of removing the separate £9027 that was already in my account in cleared funds and by applying a debit of £25,973.
19. The bank then began bouncing our direct debits without notifying us in advance as required. The direct debits declined by the defendant included my life insurance policy and my credit card. I was shocked by this.
20. When the bank wrote to tell me they had bounced our cheque I immediately rang the bank and then sent a fax asking again for details of what was happening and requesting that the account be operated as normal until the matter had been looked into.
21. The bank opened an investigation but we were told this could take 8 weeks. We were forced to effectively close the account pending the investigation.
22. From 18.1.13 we began receiving letters and phone calls from the money management team saying we had not responded to previous letters and to call them. This was completely untrue.
23. The team continued to ring me at different times of the day and late evenings, weekdays and weekends. Each time I explained the position to the advisers. I explained that we were not happy that we were being contacted in this manner and I asked that the calls stopped whilst the issue was being investigated. I was initially told that it was not possible to stop the letters as they were generated automatically. Eventually it was agreed that the calls be stopped.
24. The bank began applying high fees and charges to the account, approx £250 initially.
25. It was clear that we would not be able to afford the high charges that the defendant began applying to the account, so under duress, I paid funds into the account to bring it into a credit balance.
26. When we received the result of the investigation it made no reference to what had happened to the first cheque. Specifically it did not claim that it did not have the cheque all the time or that the cheque was lost in any way. I believe that the cheque was in the bank’s normal processes at all times.
27. The report gave no explanation of the bank’s actions or powers that it used. It gave no authority for its actions. The bank admits that it made an error but fails to clarify the nature of the error. The investigation quotes no authority to remove any funds from our account.
28. At no time does the bank claim that the funds were not cleared. There is no evidence that the funds were not cleared. There is much evidence that the funds were cleared.
29. Despite repeated requests, the bank has failed to identify the stages of the process of clearing applying to this cheque.
30. The bank suggests that day 1 of the clearing process was the 14^th of December, but this cannot be true as it would not then allow me to withdraw £35,000 on day 2. Funds cannot be withdrawn until day 4 at the earliest.
31. This account has never had an overdraft facility. I would estimate that it had an average balance of perhaps £500. It is not credible that the bank would have allowed such a large sum to be removed as an overdraft with no security unless the funds were cleared.
32. In my view the bank had cleared the funds on the first cheque, in the ultimately mistaken expectation that the 2nd cheque for the same amount would clear, in doing this the bank made a misprediction leading to it taking a commercial risk to clear the funds, followed by a loss when the second cheque did not clear.
33. In my view the bank attempted to mitigate its loss of £35,000 by removing the entirely unrelated sum of £9027 from my account.
34. In addition, in my view, it further attempted to mitigate its loss by applying a large debit to my account with no power to do so. It later claimed that this had been done at my request. The bank had no power to apply an overdraft and did not follow the appropriate procedure for applying an ‘informal overdraft’ and has never stated the nature of its power to remove either of these sums from my account. In my view it abused its position of access to our funds to cover its commercial loss.
35. My case is supported by the ruling in Case; Dextra Bank and Trust Company Ltd v Bank of Jamaica UKPC 50 (26 November 2001) where

“The bank made a misprediction of what would happen, a prediction is an exercise of judgment and to act on the basis of prediction is to accept risk of disappointment. If you then complain of having been mistaken you are merely asking to be relieved of a risk knowingly run. The safe course for one who does not want to bear the risk of disappointment is to communicate with the recipient of the benefit in advance of fully committing.”

Birks – Introduction to the law of restitution p 147

1. Once the cheque is cleared the bank is only allowed to remove the funds in certain very restricted circumstances that do not apply in this case.
2. The defendant’s own investigation shows that the £35,000 removed from the cleared funds of the first cheque was clearly transferred and is quite separate from the £9027.
3. The loss arises because once the funds were cleared they became legally mine and the bank had no authority to take them back. Once the funds are cleared the bank’s role changes to become the guardian of my funds. If it believed it had an entitlement to any cleared funds it should itself have followed due process to make a claim, not just removed them from my account.
4. With regard to the interest payment claimed, I am not sure how the figure of interest of £500 per day arose, it was my intention to use what I understand is the normal rate of 8% above bank base rate. The on-line MCOL claim shows an interest figure of approximately £22 to date. I believe this to be correct.

I believe that the facts stated above are true.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Did the bank locate the recording of the first call you made to them ( para 8 of your further particulars and para 18 of their defence)

18. As to paragraph 8, it is admitted that the Bank was aware that the First Cheque had been stopped (it had been told so by the Claimant). It is also admitted that the Bank mistakenly told the Claimant that the First Cheque had cleared. The Bank acknowledged this error to the Claimant in a letter dated

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

With regards the £9027 being separate - I'm afraid once there is a balance in your account the bank does not differentiate where it originated. When it took back the £35k when the cheque bounced it just took £35k from your account leaving you £26k overdrawn ( because you had been £9k in credit).

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello Amethyst,

I have a copy of two recordings but there were three in total. The third is the most telling.

I would agree about the overall sum except that the bank's investigation showed quite clearly where the £35k went. I read (a whole!) book on unjust enrichment (as I thought my claim might fall on that) and it says that you have to follow the money and I think that is what they did. The bank's investigation (in Jan 13) showed exactly where it went and that is what you have to do apparently if you claim unjust enrichment. They said
"With the knowledge that the funds had only been paid into your account on
14 December 2012, you chose to transfer £35,000 to your other joint
Current Account by online banking at 10.44am on Saturday 15 December
2012. £10,000 of these funds were then transferred out at 10.46am to an
account at the Claimant Building Society in the name of Nicola Bell.
A further £10,000 was transferred on 16 December 2012 at 10.38am, and the
remaining £15,000 on 17 December 2012 at 10.11am, both to the same
beneficiary."

Nicola

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Can you just put the dates the cheques were cancelled pls.

Cheque 1 - cancelled 13th Dec

Cheque 2 - cancelled 14th Dec

Money withdrawn to other a/c - 15th Dec

this bit of your claim

11. Call Centre Adviser told me that both cheques would be presented to my mother’s account. When I told my mother this, she was very concerned that this would cause her own account to go overdrawn. She therefore decided to cancel the second cheque and did so the same day.


12.The next day I investigated whether it could be true that the funds from the first cheque could be cleared and mine to keep.

16. When I realised that it could be true that the funds were cleared and mine to keep, I decided to test this. I found that I was indeed able to transfer £35,000 out of the account, leaving my existing cleared funds of over £9,000 in the account as well as the £35,000 shown from the second cheque awaiting clearance. I accept the defendant’s figure of £9027 in this regard as the applicable sum.

says that you knew both cheques had been cancelled at the time you withdrew the money.

That is why I have concerns.

Bottom page 7/top page 8 - Raymond Cox QC

[Tools]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Without wishing to pass moral judgement I feel I must draw your attention to the possible risks you (and the beneficiaries) face under the Fraud Act 2006. Read here - http://www.legislation.gov.uk/ukpga/2006/35/contents

1Fraud

(1)

A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2)

The sections are—

(a)

section 2 (fraud by false representation),

(b)

section 3 (fraud by failing to disclose information), and

(c)

section 4 (fraud by abuse of position).

(3)

A person who is guilty of fraud is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(4)

Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

2Fraud by false representation

(1)

A person is in breach of this section if he—

(a)

dishonestly makes a false representation, and

(b)

intends, by making the representation—

(i)

to make a gain for himself or another, or

(ii)

to cause loss to another or to expose another to a risk of loss.

(2)

A representation is false if—

(a)

it is untrue or misleading, and

(b)

the person making it knows that it is, or might be, untrue or misleading.

(3)

“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)

the person making the representation, or

(b)

any other person.

(4)

A representation may be express or implied.

(5)

For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

3Fraud by failing to disclose information

A person is in breach of this section if he—

(a)

dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b)

intends, by failing to disclose the information—

(i)

to make a gain for himself or another, or

(ii)

to cause loss to another or to expose another to a risk of loss.

5“Gain” and “loss”

(1)

The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2)

“Gain” and “loss”—

(a)

extend only to gain or loss in money or other property;

(b)

include any such gain or loss whether temporary or permanent;
and “property” means any property whether real or personal (including things in action and other intangible property).

(3)

“Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have.

(4)

“Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.

11Obtaining services dishonestly

(1)

A person is guilty of an offence under this section if he obtains services for himself or another—

(a)

by a dishonest act, and

(b)

in breach of subsection (2).

(2)

A person obtains services in breach of this subsection if—

(a)

they are made available on the basis that payment has been, is being or will be made for or in respect of them,

(b)

he obtains them without any payment having been made for or in respect of them or without payment having been made in full, and

(c)

when he obtains them, he knows—

(i)

that they are being made available on the basis described in paragraph (a), or

(ii)

that they might be,
but intends that payment will not be made, or will not be made in full.

(3)

A person guilty of an offence under this section is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both).

(4)

Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

The Gain / Loss bit - it was a very temporary gain and you have been reimbursed already for any loss ( ie charges and extra interest etc refunded ) and you hadn't actually lost £9k at any point.

It isn't clear from your Particulars of Claim what you are claiming for. If the claim was for £35k that would make sense more as that is the amount the bank took after the cheque bounced - when they should have informed you first under the 2-4-6 rules.

The £9k is a bit random and doesn't seem to have any basis other than it happened to be the amount you had in your account before all the cheque palava started.

You know Nicola, if you hadn't been fully aware that the cheques had been cancelled at the time you withdrew the money, I would be behind you on this.







.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi Amethyst,

thanks for reply.

Yes, cheque 1 was cancelled on the 13th and cheque 2 paid in to the bank on the 13th after cheque 1 was stopped. Both cheques showed on the on-line account on the 14th. Yes, money withdrawn to the other account on the 15th and from the other account on the 15th (17th in banking terms as that was the Monday).

Yes both cheques were cancelled when I withdrew the money and I knew that both cheques were cancelled when I withdrew the money but by then I thought it was possible that the certainty of fate applied and that, by what I understand is called a 'windfall' due to the banking terms, that they could genuinely be mine. I had checked about 5 or 6 web sites and they all said the same as the call centre advisor told me. I have seen nothing since then that suggests otherwise.

I have looked at the reference you gave and it is a very helpful document, I knew the stuff relating to clearing already but not the fraud bit. Can you tell me why it is a concern that I knew that the chqs had already been cancelled when I withdrew the money. It seems to me that the logic of the certainty of fate is that unless the bank meets the standards (that it sets) then it must stand to lose the money on those occasions when it doesn't meet the standard. It is an odd scenario but it does seem to be the case.

I'm grateful for your concern but I am not worried about the idea of fraud, I know there was no fraud, and who in their right mind could possibly have set up a scenario like this anyway? I admit to opportunism of course but if I was a fraudster then I would presumably have asked more questions about the clearing or gone to the bank on the 14th when I was told funds were cleared, emptied it and closed the account. I believe the funds were cleared and I still believe were, by the inappropriate action and inaction of my bank, mine to keep under the rules, I have seen nothing yet to persuade me otherwise anyway. I'm open to suggestions of course, I'm no expert, I'd rather find out now if I'm wrong rather than in court,

best wishes,

Nicola

- - - Updated - - -

I also know that the reference to the £9000 was a bit random and when I finish redacting the reply to defence I hope you think I've made a better job of it

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Because you were aware neither cheque could possibly clear as they had both been cancelled, (regardless of what the employee at the bank told you, YOU already knew both cheques were cancelled) AND you admit you took the money out to test if you could, then rather speedily moved it into (I think) three separate bank accounts. It wasn't a simply error - and you were not disadvantaged ( had you not removed the money on the 15th and the cheques had bounced you would have been in no worse position).

Had the cheque been from a company - eg payment for a car or some such - and you were unaware the cheque had been cancelled then you would have been entitled to rely on the 2-4-6 - and yes I would be behind you completely - but as you were aware then in my view it does constitute attempted fraud. You took the money knowing it wasn't going to be there and hoped you would be able to keep it by playing the system. opportunistic in part yes. But I don't think that makes it any better.

The bank have recognised their cock up (after hassle I know) and refunded all charges and interest incurred because of their mistake so you have zero loss.( plus some comp for the trouble I think?)

I get you are trying to test the system - but I do worry about your potential costs liability if it doesn't come off. Des agrees with you far more than I do, but he still doesn't believe you can win. I'm sorry I have tried to find a way that you are in the right here but I just can't see it. I believe the certainty of fate is overruled by issues of fraud. The bank haven't accused you of such, but they have pointed out a number of times in the defence that you knew the cheques had been cancelled.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I told you in the PM that you would receive alternative views, but it would be to your advantage.
I'm afraid that Ame's view is the one that will be taken in court.

I still think there was an argument to be made, but the way in which you have worded your case is to your detriment.

You could have argued that altho' you knew your mother had given instructions to stop payment you did not know if this instruction was in time to be effective
Presumably it wasn't as the Coop subsequently confirmed the cheque had cleared.
If a cheque has cleared it cannot be stopped so the mother's instructions would have been to no avail.
Because of the uncertainty the second cheque was stopped.

In para 22 of their defence the bank blithely admit they don't know where the cheque was for 8 days. Then claim the day they found it is Transaction day and that is the day that Cheque and Credit Clearing Time scales begin. I would suggest that at the very least they are being elastic with the rules and this is not in accordance with their own terms and conditions.

I personally would not be concerned about fraud: you took the money because you had been assured it was there and was yours. Para 23 of the defence the bank admit they had said the funds had cleared. Cleared cheques cannot be stopped. You acted following advice from the bank. IMO they'd never get past first base if they tried a charge of fraud.

Re your query about keeping their costs down: there is no reason why you shouldn't agree to Manchester if it's not too inconvenient for you. Make sure the court knows (covering letter) that you're agreeing to this in a spirit of co operation (don't mention costs!).
Perhaps they are bringing a witness.

I'd still look to negotiate a settlement at mediation ............ if nothing else it's less stressful