Cheque from HMRC to 3rd party mistakenly paid into my account - help needed

[PositivePenury]

An innocent mistake by me, and repeated by HSBC, has led to a disastrous series of events. Any advice would be very much appreciated. Here is a brief history:

 

Oct 2012 - I pay a cheque from HMRC into my account. I mistakenly opened my neighbour's post and failed to see it was not a cheque for me (I have a previous history of HMRC tax refunds so wasn't surprised to receive the payment). I paid it in over the counter. Until a few weeks ago (see below), I was totally ignorant of fact that cheque was not for me.

 

Jan 2012 - the bank write to me asking me to call them re the cheque (but without explaining what the issue is). I attempt to call the bank but am not successful in getting through. I was curious why they wanted to speak to me, but had no reason to think it was anything particularly important.

 

HSBC do not write to me again and I forget about it for some time. Then a few weeks ago, I recall that I have not got to the bottom of this. So I call the bank, and (when i finally get through) am then horrified at what I am told: the bank tells me that I am being investigated for fraud as I have paid a cheque from HMRC in favour of my neighbour into my account. I tell the bank that that is absurd, that I have made a completely innocent mistake and that I am to say the least shocked that they didn't make more effort to get in contact with me. The bank then change tack and say that they accept there was no fraud. I ask for a copy of the cheque and confirm that immediately I have seen it my account should be debited. I pointed out that this would give me financial crisis as money I thought I had would no longer be there. I asked that my overdraft be raised to allow for this and for it then to be reduced over a few months.

 

The copy cheque arrived and my account was duly debited and I thought was the end of the matter, save for overdraft arrangements.

 

I had a long call with the bank and two visits to my branch. Despite banking with them for over 2 decades they refused point blank to assist, despite the fact that this would never have happened had the bank checked the cheque when I paid it in, the bank said someone would call me to discuss this further but nobody did. I was then plunged into financial crisis and couldn't pay my mortgage and various direct debits were not met.

 

This was bad enough, but it gets much much worse. Last week, the police arrived at my house, arrested me and searched my house! The whole thing is like Alice in Wonderland and I am massively stressed. I have VERY serious health issues and the stress is putting me in the edge. I am to interviewed by the police at a later date and I hope they will accept that this is a totally innocent mistake.

 

I am incandescent with the bank. I accept of course that I made the first mistake. But their mistake was in my view far more serious.

 

My health permitting, I intend to write a formal letter of complain to the bank this week. Doubtless, this will elicit a meaningless response and I will then wish to complain to the ombudsman.

 

I guess my question is: do you think the ombudsman will be sympathetic. The mistake by the bank has caused me massive trauma at a time when I am very seriously ill. I should mention that the facts (not detailed here) are such that there isn't the remotest possibility of me being found to have done anything other then make an innocent mistake.

 

Thank you for taking the time to read this.

 

 

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[marmaris30]

What are you actually seeking from the bank? The Ombudsman only has power to require the bank to put the situation right, which it has already done by debiting the amount of the cheque. There wouldn't be any question of compensation, and they could probably have threatened to close your account, so it's lucky they haven't.

 

Unless you are arguing that your health issues contributed in some way to you opening your neighbour's post, tearing off the cheque in his/her name and then paying it in (albeit that the bank accepted it), it is probably not reasonable to expect the bank to be any more helpful.

 

Since you have no previous record of mistakes like this, the situation has been rectified with the bank and they have accepted their part in the mistake, and you have a credible explanation, I very much doubt that the police would see any interest in taking further action.

[renegadeimp]

im curious on the first part. How did you pay a cheque that wasnt in your name, into an account that was?

 

While the bank is obviously at fault for cashing the cheque, you still shoulder 50% of the blame for taking it in to be cashed anyway. The police/CPS/courts wont take your word that "i didnt check the name on the cheque". As it would have bee blatantly obvious to anyone who saw the cheque.

 

As i said, you n ee to be ready to shoulder some of the blame here. You wont get as much punishment ( IF it goes to court ), as if you forged it or changed the name, but you wont be able to get around it using the excuse that you never saw the name. A name that stands out prominently on ALL cheques.

[PositivePenury]

Thanks for taking the time to reply.

 

The mistake that I made was one that anyone could have made. There was no dishonesty on my part and my circumstances (that I won't go into here) are such that I would be lunatic to have been dishonest and paid the cheque in dishonestly. Whilst my mistake is one that anyone could have made, it is indeed very likely that my very serious health issues were the causative factor in me not noticing the cheque payee.

 

It appears that you guys differ from me in that I see the bank as culpable morally and professionally for not checking the cheque. It's a pretty important task for a bank teller to check a cheque, and here there was a total failure. My own innocent mistake does not in my view negate from that failure by the bank.

 

Renegedimp you question my credibility saying that the name of the payee would have been blatantly obvious. It obviously wasn't blatantly obvious or I wouldn't have missed it and neither would the bank!!!!

 

I have seen that the ombudsman has the ability to award compensation for distress in appropriate circumstances. I believe that these are such circumstances.

 

It is clear that, at least in my case, HSBC, did not carry out adequate checks on the cheque. I am not a banker. I am very sick.. I make mistakes. HSBC should not have made the same mistake that I did.

[BazzaS]

How come HSBC gets held to a higher standard of behaviour by you than you hold yourself to?

 

If you believe them to have been negligent, what damage / loss are you claiming for, what quantum do you feel will compensate you for this, and what will you say when they point out that you are responsible for paying in a cheque that wasn't payable to you.

Edited April 21, 2013 by BazzaS

[renegadeimp]

The bank could easily have been seen to make an error. Im curious. How do you thi k your health problems affected your ability to see the name on the cheque but not the rest of it PLUS the accompanying letter?

If the police decide to prosecute for obtaining money by deception then these are questions they and a court would ask you.

[postggj]

what is the position with the police at the moment

 

To obtain a conviction the prosecution has to prove Mens Rea (or guilty mind) when the offence was committed, along with Actus Reus (the criminal act)

[PositivePenury]

Thanks for the further responses everyone.

 

I do not seek to prove my honesty here. I am honest and that's the end of that aspect as far as I am concerned. For obvious reasons, I am reluctant to write here all the surrounding circumstances which make it clear that I would quite literally have had to have been insane had I had (which I did not) any contemporaneous knowledge that the cheque was not mine.

 

My question here was about a possible finding in my favour from the ombudsman. Given the ombudsman's ability to compensate for distress, I would have thought this was worth pursuing. I sense that those who replied here feel that my innocent mistake negates the effect of the mistake by the bank. We will just have to agree to disagree on this. Personally, I find it rather alarming that a cheque payable to a third party was paid in without being noticed at the time of payment in or until months later. My point is this: if I as an individual make an occasional mistake, it is unlikely to have much consequence (except in this particular case!!!). On the other , a systemic failures by the bank in relation to cheque checking raises much more serious issues.

 

I had no mens rea and there is not and cannot be any evidence of such. There cannot be any possibility of me being convicted of an offence. But all this is nevertheless very traumatic for me.

[postggj]

The ombudsman will not get involved if their are outstanding criminal or civil litigation going on

 

The bank will not even look at a cheque being paid in, the bottom of the cheque is run through a reader and allocated to your account.

 

The bank are negligent by the way as you cannot pay a third party cheque into your account made out to another individual

 

The act of you putting the cheque into your account that you were not entitled to satisfies Actus Reus, but not Mens Rea

 

You need a defence solicitor to argue this out if you are summoned to attend court

[PositivePenury]

Thanks Squaddie. I guess I will make a complaint and then have to let it lie pending the resolution of the criminal angle.

 

I have to say I find it pretty disturbing if no proper checks are carried out on cheques.

 

Ill report back when these matters are all resolved.

 

Thanks again.

[renegadeimp]

Theyll still ask the questions I have already stated. Questions which you seem to skip sround and not answer.

[PositivePenury]

Renegadeimp

 

I posted on here to ask for help re a discrete aspect of this, not to be cross examined!!!! It is of no assistance to me for you to challenge my credibility in circumstances where you don't know all the facts. I am grateful for your comments thus far but suggest we leave it here as I have no intention of providing further details, for obvious reasons.

[postggj]

Theyll still ask the questions I have already stated. Questions which you seem to skip sround and not answer.

 

Totally agree on the above, but that will be down to any statement you have made to the police. Not to mention if the crown prosecution service decides their is a realistic chance of conviction to warrant prosecution.

 

If that is the case, you will have to explain yourself in court. That is why i have suggested getting proper legal representation. The magistrates now are more likely to be circuit or district judges with full authority. If they consider you are gulty then they can find "case proved" through judicial interpretation.

[PositivePenury]

If a sensible CPS lawyer looks at the facts, then it would be staggering if a charge were brought. If a charge were brought, I would go to the crown court because this is, whilst farcical, a very serious matter. I anticipate the judge would be extremely critical that a charge had been brought. I appreciate that you guys cannot really comment on what I say because I can't give the details here.

[renegadeimp]

Again you are avoiding the main question. Do you seriously think the judge will accept your excuse that you are honest? You opened mail clewrly addressed to another person. Took the cheque contained within and cashed it. As I said before, I know you dont want to hear it but that is what you will be asked by the police and in court. You have failed to provide a solid reason for what you did.

You might not like the advice I give but it is what is going to happen in your future.

[renegadeimp]

Totally agree on the above, but that will be down to any statement you have made to the police. Not to mention if the crown prosecution service decides their is a realistic chance of conviction to warrant prosecution.

 

If that is the case, you will have to explain yourself in court. That is why i have suggested getting proper legal representation. The magistrates now are more likely to be circuit or district judges with full authority. If they consider you are gulty then they can find "case proved" through judicial interpretation.

 

Fully agree with this. You NEED to get legal representation as if you get charged you are looking at a fairly serious punishment.

[PositivePenury]

I appreciate that I will be challenged. I have a lawyer. It would be inappropriate to waive privilege by saying what I am advised. But let's just say that I am completely and utterly confident that a jury would acquit me if it came to that. I'm more concerned about the stress in the meanwhile and the damaging effect on my already very seriously bad health issues.

[postggj]

This will not be a jury trial unless you are talking of a systemic abuse and very large sums are involved

 

This will be decided by a magistrate unless he feels it has to be passed up to crown court

 

I have already stated most sitting magistrates are circuit or district judges and will deal with the issue at the magistrate court level

[rdm2006]

How are your neighbours taking this? i.e are they sympathetic and understand that you simply didn't notice and made a mistake or are they taking the hard line?

[PositivePenury]

Hi rdm2006

 

My bank advised me not discuss with my neighbour. I initially thought this was strange advice and I wanted to speak to my neighbour to clear it up. I spoke to friends and they too advised not to tell the neighbour. The rationale of my friends was that my neighbour would have been reimbursed and that there was no point in causing a fuss over an error that had been rectified. The police too have asked me not to speak to my neighbour. I feel awful not being able to simply knock on her door to explain what happened.

 

Ironically, there have been a number of occasions when previous neighbours have opened my post. Needless to say, such incidents did not lead to police investigation!

[rdm2006]

I and my neighbours have opened each others mail in the past - Although you know it happens, you don't expect to get other peoples mail and on the whole, I do notice it is not mine, but there are occasions when you get a lot together when you just don't spot an odd one.

 

Fortunately for me it has never involved money - attitudes change when money is involved. I hope that this gets sorted quickly and that it is recognised that we are all human and occasionally even the best of us make mistakes, however silly that mistake may appear to be...........

 

I hope that you and your neighbour will one day see it as one of those embarrassing moments which you will both be able to laugh at.

Edited April 23, 2013 by rdm2006

[PositivePenury]

Thanks for your kind words rdm20006. I am optimistic that both my neighbour and I will be able to laugh about this in due course. But the stress of waiting for the outcome of this matter is traumatising me.

[renegadeimp]

Hi rdm2006

 

My bank advised me not discuss with my neighbour. I initially thought this was strange advice and I wanted to speak to my neighbour to clear it up. I spoke to friends and they too advised not to tell the neighbour. The rationale of my friends was that my neighbour would have been reimbursed and that there was no point in causing a fuss over an error that had been rectified. The police too have asked me not to speak to my neighbour. I feel awful not being able to simply knock on her door to explain what happened.

 

Ironically, there have been a number of occasions when previous neighbours have opened my post. Needless to say, such incidents did not lead to police investigation!

 

The investigation isnt about opening mail. Its about cashing a cheque not in your name.

[rdm2006]

I don't know you and for all I know you could be visually impaired (which could be why you didn't notice the different name on the cheque) I am not here to judge anyone but I don't think I would bother making a complaint about the bank, after all the cashier merely made the same mistake that you made by not looking at the cheque properly.

 

I don't think that would look good because you are basically saying that you can make that mistake but no one else can.

 

It is, of course, your choice and I am not being rude, I just think it looks like double standards if you know what I mean.

 

whichever you choose I hope it all comes good in the end.

[PositivePenury]

Hi again rdm2006

 

It happens that I am visually impaired (I also have other serious medical conditions).

 

I think I might agree with you about the bank if the only mistake that the bank made was the teller repeating my mistake. However, the detailed facts reveal a whole catalogue of failure by the bank, failures which indicate a systemic problem rather than just the particular mistake made by the teller. My very strong sense of justice compels me to complain. As for the teller, I feel sorry for her to the extent that she gets into trouble because her mistake was a simple human one that I too made.