Yes. Normally such a person is trained to negotiate settlements without the involvement of the customer.
I would certainly not meet them alone. I would bring someone along and pick a neutral venue. Have the witness take notes.
Bank Error??
- Thread starter butterfield
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Normally, legally you cannot take advantage of a banking error, as previous posters have alluded to, you owe them the money, end of story on that
However, no reason why you should be out of pocket for their incompetence. I would insist on an interest free loan and would also ask them to cough up any legal costs you've encountered if you have taken legal advice.
Be prepared for the meeting and I suggest you commit to nothing there and then. I suggest you ask them to explain in writing
why the error occurred
why it is only coming to light now
what efforts they have taken to ensure this does not happen again
Can they guarantee that no further instances of this have occured in relation to your accounts (how do you know this is the only instance?).
Request a written apology from the Regional Manager for the inconvenience this has caused you
As for why this has happened? Most banks have internal reconciliation from time to time, be curious as to why this has happened
However, no reason why you should be out of pocket for their incompetence. I would insist on an interest free loan and would also ask them to cough up any legal costs you've encountered if you have taken legal advice.
Be prepared for the meeting and I suggest you commit to nothing there and then. I suggest you ask them to explain in writing
why the error occurred
why it is only coming to light now
what efforts they have taken to ensure this does not happen again
Can they guarantee that no further instances of this have occured in relation to your accounts (how do you know this is the only instance?).
Request a written apology from the Regional Manager for the inconvenience this has caused you
As for why this has happened? Most banks have internal reconciliation from time to time, be curious as to why this has happened
With due regard, the statement was offered as an opinion based on my experience of dealing with the banks over a substantial number of years.
The argument that I evinced was:
1. In essence, no evidence has been provided to prove conclusively that the OP did not pay the monies that were requested at the time. You will need conclusive evidence to prove this point and to move any further in negotiations.
2. Should there be conclusive evidence then an ethical obligation exists to pay for that which was rendered but this is a matter for the individual's own conscience.
3. Discussions with the bank should at this point be at a mutually agreed venue, preferably not in the bank and should not at this time result in any undertaking being given by the OP other than to consider the matter further.
4. If the OP wishes to dispute the matter than professional advice would be worthwhile if the OP doesn't have the background in similar matters. Nevertheless, pursuing the matter is relatively straightforward.
5. The OP purchased a bearer instrument and paid a price for this instrument. My reading is that the price was set by the vendor (bank) and that the money was taken by the bank from the OP's account. At no time did the OP seek to deceive, defraud or act in any manner that might be construed as wishing to not fulfill the debt arising from the purchase. The bank accepted payment and there the matter rested for 3 years. The transaction is now complete and no further responsibility rests with the OP. There is no legal responsibility on the OP to point out to the bank that it made a mistake. It is the bank's responsibility to ensure that for those products that it sells (and this is the unique point to this case-a draft is a product) that it sells them at the correct price.
6. In this context, I offered an opinion based on substantial experience of successful negotiation with banks.
"5. The OP purchased a bearer instrument and paid a price for this instrument. My reading is that the price was set by the vendor (bank) and that the money was taken by the bank from the OP's account. At no time did the OP seek to deceive, defraud or act in any manner that might be construed as wishing to not fulfill the debt arising from the purchase. The bank accepted payment and there the matter rested for 3 years. The transaction is now complete and no further responsibility rests with the OP. There is no legal responsibility on the OP to point out to the bank that it made a mistake. It is the bank's responsibility to ensure that for those products that it sells (and this is the unique point to this case-a draft is a product) that it sells them at the correct price. "
Try that in front of a judge.
mf
Try that in front of a judge.
mf
I think its called the difference between right and wrong?
Clever talk is all very well but I believe that the OP
1. Admits the error - albeit by the bank and not themselves
2. Admits having had the use of the money
3. Would love to find a way of not paying it back immediately or, having been goaded on on this board, at all.
4. Is falling back on the old "oh, they are so big, and I'm so ickle........" line of reasoning.
The money is due. OP may be able to negotiate settlement terms but if OP ends up playing silly buggers, he does not stand a rats ass chance in hell in a court situation.
mf
I view your comments as sarcastic in nature in this post and in previous posts on this thread, perhaps a mod might consider the matter: I have never suggested anything less than an ethical obligation to repay the money but I have always made it clear that this is a personal matter, conscience being a personal thing.
In providing advice I have done so in an impartial manner, outlining the options as I see them and based on the information that was provided. At no time I have suggested playing games nor have I resorted to any argument about the bank being "bigger" than the OP. I have simply provided reasoned, impartial advice.
You have disagreed with this advice and being open to re-considering in light of new evidence I wondered if I had missed some point of law or some precedent and asked that you point to either. I await a response on those points and without that I remain to be convinced that the OP would be anything other than successful in a court of law.
They are greedy feckers and I would have no problem stiffing them - That's my slide. However, I would speak to a solicitor and find out exactly where you stand legally and then decide. I would not meet them before that. It may cost you a few quid but well worth it.. then at least you are meeting them (maybe with a negiotator) and you are well informed.
It helps if OP has a case. Which OP does not.
"He is entitled to negotiate settlement with the bank for less than what they think is due."
I would rephrase that.
"He is entitled to attempt to negotiate settlement with the bank for less than what they think is due."
Lots of people posting seem to have lost sight of the fact that OP has happily enjoyed an interest free loan of 20K for 3 years. Quite a nice position to be in, me thinks but Fairy Money invariably has to be paid back.
mf
Polite Mayoman now!!
Get yourself to a solicitor and get legal advice. I could say one thing, someone else could say another thing! By getting legal advice you know exactly where you stand. While everyone here is giving comments, independant legal advice is the way to go!! End of story
My slide is: if I could get away with it, I would. I have no morals.........
Get yourself to a solicitor and get legal advice. I could say one thing, someone else could say another thing! By getting legal advice you know exactly where you stand. While everyone here is giving comments, independant legal advice is the way to go!! End of story
My slide is: if I could get away with it, I would. I have no morals.........
Bank Manager
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Very interesting thread ....
Saddened a little by the second last posting - what would we all say if the Bank took this approach (if they had overcharged the Op three years ago) ...?
Bear in mind there may be some bank offiical currently losing sleep over this issue if they were the one to make the original mistake, not a nice place to be I can assure you ...
My advice to original poster (I'm assuming the bank did make an error three years ago and somehow undercharged the OP by c. E20k) - find it amazing that it took this length of time to discover - can't come up with a logical explanation for that ... I believe whatever bank it is will be very happy to recover their loss, and should be more than willing to negotiate either a lump sum settlement (even with some element of discount) or may as suggested by another poster be willing to provide an interest free loan over a period of time to facilitate the OP...
As for the morality of the situation (I'm obviously biased, so I'll leave others to discuss that issue ...).
Best of luck whatever you decide to do.
Regards,
BM
Saddened a little by the second last posting - what would we all say if the Bank took this approach (if they had overcharged the Op three years ago) ...?
Bear in mind there may be some bank offiical currently losing sleep over this issue if they were the one to make the original mistake, not a nice place to be I can assure you ...
My advice to original poster (I'm assuming the bank did make an error three years ago and somehow undercharged the OP by c. E20k) - find it amazing that it took this length of time to discover - can't come up with a logical explanation for that ... I believe whatever bank it is will be very happy to recover their loss, and should be more than willing to negotiate either a lump sum settlement (even with some element of discount) or may as suggested by another poster be willing to provide an interest free loan over a period of time to facilitate the OP...
As for the morality of the situation (I'm obviously biased, so I'll leave others to discuss that issue ...).
Best of luck whatever you decide to do.
Regards,
BM
Do you remember all the over-charging issues the last few years by some of the main banks in ireland, never mind their greed when it came to horsing out mortgages to people who can't afford them - look at the whole sub-prime market mess in US and the impact it has had.
I feel for the Bank official but not for Banks ..
In relation to mf1, well if thats the case far enough and it is a good heads up, but I would go find out for myself and pay the few quid. I wouldn't feel comfortable going on the info that I read on the web from a user, especially stuff like this. No disrespect to anyone but I just wouldn't do that.
Bank Manager
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You've hit the nail right on the head - yes - the banks did overcharge, and they had to refund those they had overcharged (and rightly so) with interest - my point is that it is unreasonable to expect this type of rule for one party and yet suggest when the shoe is on the other foot that the person should try and get away with it. Just my opinion ...
In relation to sub-prime issue - I agree with you, absolutely daft practice (for both parties to be involved in i.e. financial institutions and consumers) - however I can only speak for my own organisation in that we have no exposure to the sub-prime market, and as far as I'm aware neither do the other main financial institutions in Ireland, so I don't really believe it has any bearing on the OP's posting.
Regards,
BM
I refer mf1 variously to:
Moneylenders Act 1933 S13(3) & S19(1) In particular "...
19.—(1) No proceedings shall lie for the recovery by a moneylender of any money lent by him after the commencement of this Act or of any interest in respect thereof, or for the enforcement of any agreement made or security taken after the commencement of this Act in respect of any loan made by him, unless the proceedings are commenced before the expiration of three years from the date on which the cause of action accrued:"
I'll be pointing the judge in that direction as a start.
If we take the "narrow" view that this was in fact a credit facility then I point you to the Consumer Credit Act 1995 S43: extract quoted for brevity but it envisages a credit agreement being in place and there is NO evidence here that such was the case, but am just covering the bases.
(3) If the default described in subsection (2) continues for a further period of 14 days, then while the default so continues, the creditor or the owner, as the case may be, shall not be entitled to enforce the agreement, or any right to recover goods, and any person shall not be entitled to enforce a security given under the agreement."
And in relation to looking for payment:
" Towhit S49 "
49.—(1) A person shall not make a demand for payment or assert a present or prospective right to payment in respect of an agreement which is unenforceable under this Act.
(2) A person shall not, with a view to obtaining payment in respect of an agreement which is unenforceable under this Act—
( a ) threaten to bring any legal proceedings,
( b ) place or cause to be placed the name of any person on a list of defaulters or debtors or threaten to do so, or
( c ) invoke or cause to be invoked any other collection procedure or threaten to do so."
And finally...for now...I refer to the Bills of Exchange Act 1882..various sections
" 46 Excuses for delay or non-presentment for payment
(1)Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate presentment must be made with reasonable diligence."
In this case delay for presentment cannot be excused as it is due to the negligence of the holder.
"
45 Rules as to presentment for payment
Subject to the provisions of this Act a bill must be duly presented for payment. If it be not so presented the drawer and indorsers shall be discharged.
A bill is duly presented for payment which is presented in accordance with the following rules:—
(1)Where the bill is not payable on demand, presentment must be made on the day it falls due.
(2)Where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable.
In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case."
And finally, in this case, this bill is in fact payable on demand as this is the normal practice with bank drafts and given the manner in which the system operates 3 years is not a reasonable time in any view. Therefore the bill is discharged.
While I accept your opinions as being considered, perhaps mf1 you can point to some contrasting examples????
Moneylenders Act 1933 S13(3) & S19(1) In particular "...
19.—(1) No proceedings shall lie for the recovery by a moneylender of any money lent by him after the commencement of this Act or of any interest in respect thereof, or for the enforcement of any agreement made or security taken after the commencement of this Act in respect of any loan made by him, unless the proceedings are commenced before the expiration of three years from the date on which the cause of action accrued:"
I'll be pointing the judge in that direction as a start.
If we take the "narrow" view that this was in fact a credit facility then I point you to the Consumer Credit Act 1995 S43: extract quoted for brevity but it envisages a credit agreement being in place and there is NO evidence here that such was the case, but am just covering the bases.
(3) If the default described in subsection (2) continues for a further period of 14 days, then while the default so continues, the creditor or the owner, as the case may be, shall not be entitled to enforce the agreement, or any right to recover goods, and any person shall not be entitled to enforce a security given under the agreement."
And in relation to looking for payment:
" Towhit S49 "
49.—(1) A person shall not make a demand for payment or assert a present or prospective right to payment in respect of an agreement which is unenforceable under this Act.
(2) A person shall not, with a view to obtaining payment in respect of an agreement which is unenforceable under this Act—
( a ) threaten to bring any legal proceedings,
( b ) place or cause to be placed the name of any person on a list of defaulters or debtors or threaten to do so, or
( c ) invoke or cause to be invoked any other collection procedure or threaten to do so."
And finally...for now...I refer to the Bills of Exchange Act 1882..various sections
" 46 Excuses for delay or non-presentment for payment
(1)Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate presentment must be made with reasonable diligence."
In this case delay for presentment cannot be excused as it is due to the negligence of the holder.
"
45 Rules as to presentment for payment
Subject to the provisions of this Act a bill must be duly presented for payment. If it be not so presented the drawer and indorsers shall be discharged.
A bill is duly presented for payment which is presented in accordance with the following rules:—
(1)Where the bill is not payable on demand, presentment must be made on the day it falls due.
(2)Where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable.
In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case."
And finally, in this case, this bill is in fact payable on demand as this is the normal practice with bank drafts and given the manner in which the system operates 3 years is not a reasonable time in any view. Therefore the bill is discharged.
While I accept your opinions as being considered, perhaps mf1 you can point to some contrasting examples????
In relation to BM
Fair enough they refunded and I would say the pain was felt mainly in PR side of things, but I would say there was some discussions whether they decided to pay or not.
I don't think the same process should be applied as the banks are providing products and services, while the customer is availing of them. They should have processes and procedures to catch these errors and if you don't tough. Three years is a long time.... they didn't even spot 20k until when... and the whole mortgage side is sliding and now they have time.
Also 20k to the banks is nothing, 20k to the OP is huge cash and the same pain is not felt. I don't think banks have any morals towards their customers and what is best for the customer, just what is best for them and how they can make the most profit. I have the same attitude for the banks as they have to me.
The banks analyse their customers and target certain individuals for loans etc. I know as I created some of the OLAP reports for them.
If OP has to pay, I would make them pay as well for the mess by making them wait many years for complete payment or get some serious discount. I think also this is bad PR for a bank(if details got out in court) and they will be more than willing to see this matter sorter in a private manner.
Fair enough they refunded and I would say the pain was felt mainly in PR side of things, but I would say there was some discussions whether they decided to pay or not.
I don't think the same process should be applied as the banks are providing products and services, while the customer is availing of them. They should have processes and procedures to catch these errors and if you don't tough. Three years is a long time.... they didn't even spot 20k until when... and the whole mortgage side is sliding and now they have time.
Also 20k to the banks is nothing, 20k to the OP is huge cash and the same pain is not felt. I don't think banks have any morals towards their customers and what is best for the customer, just what is best for them and how they can make the most profit. I have the same attitude for the banks as they have to me.
The banks analyse their customers and target certain individuals for loans etc. I know as I created some of the OLAP reports for them.
If OP has to pay, I would make them pay as well for the mess by making them wait many years for complete payment or get some serious discount. I think also this is bad PR for a bank(if details got out in court) and they will be more than willing to see this matter sorter in a private manner.
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