Bank Error??

[Bank Manager]

I think if you re-read my original post - you'll see I suggested what you've suggested in your last paragraph.

As for your previous paragraphs we'll probably just have to agree to disagree.

Regards,

BM

 

[mf1]

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????

Well thats all very interesting but its helpful if quoted law actually applies to a given scenario.


Moneylenders Act
Does not apply to Banks. But I'm sure the Judge would be interested in whatever point is being made. If it has any relevance. Oh and the Bank has six years to institute proceedings.


Consumer Credit Act 1995.
There is no credit agreement – it’s a mistake. Sections 43 and 49 have no application.


Bills of Exchange Act 1882
The problem does not lie with the Draft – it lies with the fact that, in error and by mistake, the Bank debited a lesser amount to OP for the Draft than was due. And, in any event, from what I can see from the post, the Draft has been honoured


OP has enjoyed the benefit of 20K for three years and must make good, and will, if it comes to it, be made to make good ,by a Court. When seeking to negotiate, it is helpful, for both parties, to look at their own (a) best case scenario on the one hand and (b) worst case scenario on the other. Bank may be embarrassed and, on that basis only, probably will be willing to reach some compromise but OP has only mistake on their side. And I suspect a Court will have an issue with the idea that you could have 20K to spend and not notice it until Bank brought it to your attention.

Law in every day practice is c.50% law and 50% common sense

Relevant case law for this scenario is as follows:

National Bank Limited V O’Connor and Bowmaker ( Ireland) Limited 1969 103 ILTR 73
Kelly V Solari 1841 9 M & W 54
Re Jones Ltd V Waring and Gillow Limited 1926 AC670

mf

 

[bond-007]

OP should employ a mediator to negotiate a settlement for less than the €20k they say he owes.

 

[ClubMan]

Since the original poster has received a range of different advice there seems little point in discussing this matter further. Thread closed.