On Tue, 23 Oct 2012 11:37:46 +0000 (UTC), ***@gmail.com wrote:
// There are <snip>s below from your basically mere cut and paste
repeat of your prior postings since your 23 Oct 2012 posting for the
most part fails to add information or logical argument that cures
your basic factual and reasoning flaws explained to you earlier but
which you nevertheless repeat. //
Post by n***@gmail.comterri sias writes:-
] ..... Did you or did you not
] furnish a document to the bank in/by which you agreed that the
] bank may or perhaps even must reinvest the sums in question if
] you did not withdraw them or communicate with the bank about
] their disposition within some stated period after August 2009?
]
] Unless and until you answer this question in a reliable manner ....
Together with the previously cited email received] the client
received a <copy> of the signed contract for the ORIGINAL
investment initiated in 2008.
So then, apparently the signed contract implied that the T&C
document was applicable to the ORIGINAL [2008] investment.
It is bewildering that despite this statement's truistic nature you
feel a need for an "apparently" about this and that you resort to this
qualification at the expense of you not focusing on what you said is
of most interest to you. However: Yes, the initial mutually agreed
2008 terms and conditions (T&C) are applicable to the original 2008
investment. Obviously.
But since the crux of your desire and attempt to argue that a bank
without good cause delayed acting on your request to withdraw funds
from your account after that period so as wrongfully to cause you so
far unspecified (and, apparently not yet even realistically estimated)
damage mainly concerns whether those T&C or some legitimately made
supplementation of them extend to the post Aug 2009 period, why you
seem emotionally and intellectually incapable of answering at least
for yourself a straightforward question addressed to this subject
without empty speculation and verbal jousting remains a self-inflicted
infirmity.
When you first made your one year or thirteen month time deposit in
2008, did you or did you not furnish the bank with a document in/by
which you agreed that it may or perhaps even must reinvest the sums in
question upon the expiration of that period if you did not withdraw
them or communicate with the bank about their disposition within some
stated period in or after August 2009? Yes or No?
Why to the extent that your answer possibly may be "No" do you refer
below to a "window of opportunity" but without saying what that period
is and whether you did or did not agree to it and act within it?
If, however, "Yes" would be an at least mostly correct answer, then it
remains especially puzzling why you continue to repeat the same
questions you began with while also continuing to avoid posting facts
that would answer the following also obviously then pertinent
questions:
What did you each agree as stated in any such document and, if you
exchanged later amendatory or otherwise supplementary ones,
a] about by what mode of communication before when you shall have
notified the bank whether and when you would be withdrawing the
principal plus accrued interest or shall have provided it with other
dispositional instructions,
b] about whether the bank may or should or shall or may not roll
over those sums into another fixed period account in the absence
before it did so of instructions by you to the contrary, and
c] about whether it instead should or must deposit those sums into
a withdraw on demand without early withdrawal penalty account?
If the bank has claimed directly or in effect by its behavior that you
ceded to it the prerogative of rolling over the original principal
plus accrued interest for another fixed term, what are the facts
(other than "apparently"s or what you speculate about the bank's
"hope" or what it "believes" or other "seems to" you surmise)
including under color of what documents (other than self-servingly
unilateral assertions by you not explicitly founded on a fair and
accurate quotation from or summary of your 2008 agreement) to support
a contention by you that the bank is incorrect?
Answers to these questions very probably would be easy to arrive at if
you would thoughtfully read the documents to which you already more
than once referred and are obvious prerequisites for a persuasive
argument by you.
Post by n***@gmail.comMy contention is that the bank hoped that they could continually
keep/reinvest the money, by default, unless the client planned
and arranged his life so as to BE READY AND WAITING for his
investment to mature, and apply for a withdrawal, during the
window of opportunity set by the bank.
Apparently the bank believed, or hoped that they could get the
client to believe, that the 2008 copy-of-contract, applied
[to the bank's roll over of the funds into a succeeding account].
Even if it was not unreasonable to assume that a fictive non sentient
corporate body can hope or believe, this would be irrelevant except
only if the corporate feeling and state of mind resulted from what the
bank and client agreed about these matters including, if their
contractual language is reasonably susceptible of this, by implication
in light of applicable law affecting bank with client relationships in
the place in question.
In any event and while, insofar as a bank customer's life plans are
concerned, a not negligently indifferent customer obviously ought do
this even if there was no such T&C language, have you not said that
the bank included in your agreed T&C a provision to the effect that
you should advise it at least one month before your fixed term
account's expiration date about the disposition of the sums then on
deposit? And did you not also indicate that you chose not to do
this?
The considerable period between Aug 2009 and when you posted your
first news group complaint within which you might and should have done
this makes it also especially odd that you have not said what if
anything you did to learn what the law in the applicable jurisdiction
provides about a bank's and one of its client's respective rights and
obligations in relation to or which perhaps even clearly prescribes
whether a bank like the one with which you chose to deal may or should
reinvest the principal plus accrued interest for a renewed succeeding
fixed term if a client has not instructed the bank before or for more
than two or three years after the expiration of the initially
stipulated period.
It is sad that rather than do any of this, you continue to substitute
surmise about the mental processes and emotional state of a corporate
body for actually answering the above questions with any precision.
Post by n***@gmail.comIt seems to me that, since the bank 'closed out' the investment,
the 2008 contract expired.
You use the words "closed out" as if merely by you formalistically
surrounding that phrase with quotation marks you transmute it into
legal term of art that is significantly distinguishable from
reinvesting the account not in a manner that terminates and, instead,
by legitimately applying or extending the originally agreed T&C. In
other words, this "it seems to" you statement is a quintessential
example of question begging.
Your and the bank's 2008 agreement may have been terminated or
otherwise expired, if that is what that contract's T&C said. It also
may have been properly or even necessarily renewable or extendable to
enable and maybe even require the roll over of which you complain. But
since you insist on not actually saying what the 2008 T&C and what any
mutually agreed to supplementary documents say about this subject and
in also not identifying the relevant jurisdiction, it remains
impossible for any reader of your postings to judge whether what seems
to you is a conclusion likely to be persuasive to the bank if you try
to negotiate a settlement or is likely to be accepted by any court if
an unresolved dispute between you and the bank results in litigation.
Post by n***@gmail.comThe question then remains: did the
client sign a NEW contract, and then WHY was such new contract
NOT presented to the client, instead of the 2008 contract?
The question remains: Why as long as you continue not to provide
answers to the questions above do you assume that whether the client
signed a later contract is "The question" or is even a pertinent
question?
Post by n***@gmail.comIt may be important that the original 2008 investment was made
at branch A, whereas the bank's initialted re-investment from the
current/pay-to-keep-your-money account was made
from branch B, and the 2010 withdrawal instructions and email
were with branch A.
Perhaps branch A doesn't know that branch B, initially transfered
out of the investment account to a 'current' account?
This speculation is irrelevant. Still, and even if in the nature of
an incidental aside, one might wonder whether and, if so, why you seem
to suggest that even as late as 2008 through Dec 2010 the bank's
branch employees with whom you dealt did not have ready access to a
computerized database that displayed the current essential status and
related T&C of a client's account.
Post by n***@gmail.comThe T & C documents state:-
].... on maturity of the investment the client SHOULD advise the
]bank in good time .... with regard to
]the payment of the capital and/or reinvestment thereof.
My emphasis 'SHOULD'.
....
As a lay person I'm asking for the legal significance of 'SHOULD'.
Since I get no reply, I search the T&C and find:--
7.3 it SHOULD be checked for accuracy. If there is any discrepancy,
the client MUST report..
These words are carefully chosen by law-people.
I.e. what is the significance of the difference
between *SHOULD* and *MUST*.
And particularly when they appear in different contexts
within the same contract?
This is a commonly arising reasonable and also easy to answer
question.
Generally speaking, "should" when used in a contract or legislation is
a version of a so-called "precatory" rather than mandatory term which,
as such, signals a request or recommendation which also sometimes but
always depending on context is coupled with some sort of express or
implied moral or ethical "ought" not in the nature of an enforceable
imperative or "ought" suggestion to act prudently for one's own
benefit.
(In English, the "precari" and "precatorius" Latin roots of
"precatory" mean basically to pray or to beseech or to express a
wish.)
While there can be exceptions which, however, you do not suggest apply
to the language you quote, "should" as used in law accordingly does
not generally require or even connote particular action to trigger any
sort of fixed obligation.
But even so, disregarding a contractually or legislatively stated
"should" not infrequently can have important legal consequences in
other ways for the affected parties. For instance, the T&C para. 7.3
language you partially quote suggests that that provision in its
entirety or related ones enable or maybe require the application of
some sort of account stated preclusive principle so that the client
who has not reviewed a periodic statement for accuracy as that
provision cautions he should and who does not notify the bank of a
discrepancy adverse to him as that clause says he must later will be
bound by what the even if incorrect statement says even if, had he
done what he had agreed he should and must have done, he would have
been successful in establishing for his benefit the nature and amount
of the discrepancy.
Generally speaking in contrast, "must" when used in a contract or in
legislation signals an obligatory imperative, in other words, is a
command to do or to refrain from doing whatever is the act the "must"
in question qualifies.
(Perhaps more than merely incidentally interesting in what this may
imply about your psychology and capacity for logical thought, you do
not quote enough of para. 7.3 or related T&C language to permit a
reader of your posting to know whether speculation about the possible
preclusive effective of you as the client not doing what you agreed
you should and must do is or is not correct.)
Post by n***@gmail.comAlthough it's perhaps got no formal legal significance, it's
interesting to note IF readers can detect the bank's incremental
rolling-back of their claim and later avoidance of any mention
of their refusal to pay the client, by changing the discussion
to the different trivial topic, of forex regulations.
This gives insight into what the bank is THINKING, which
shows what they know and don't know.
Readers of our postings will not have failed to detect the bank's
incremental rolling back of its tentatively or tactically made
defensive claims you described since you have repeated your version of
its such bahaviour any number of times. However, here again, whether
a bank can think and, if so, what it thinks is not important or even
relevant unless what representatives of the bank say they think and
how they act on its behalf is supported by or contravenes what the
parties have agreed whereas this is information you have not posted.
But even without such information, you make it apparent that your
repeated emphasis on the sort of rolling-back you posted about earlier
and repeat here is an illogical dodge on your part since you do not
connect this behavior to your basic contention that the bank
wrongfully delayed a requested withdrawal of you funds in a damage
causing way.
In contradistinction, rather than demonstrate that there was something
nefarious or even fairly criticizeable about such rolling-back, your
postings strongly suggest rather than refute that the bank's conduct
in this connection resulted from nothing more (not to dwell on worse)
than a good will gesture, in other words, an exercise of business
judgment to the effect, in the bank's representatives' opinion which
they were fully within their right to arrive at and act on, that the
benefits to the bank of pursuing a claim for the payment even of an
agreed liquidated sum or from pursuing any other available claim as
against you as its client other than to assert that the bank had
behaved in an appropriately legitimate manner probably would not
exceed the monetary expense and loss of good will costs of so doing.
Post by n***@gmail.comPlease flaw this argument:-
=Client has suffered damages from the bank's refusal to pay
out his matured investment, on demand.
While this may seem at first blush to be a small matter, there is a
more than only cosmetic and instead annoyingly attention diverting
rhetorical-structural problem with this statement.
It would be unexceptional and, despite its repetitiveness since you
have already made this point more than once, it possibly would even
have been helpful if you had made clear that this was not a component
of and instead an introduction to what you propose to establish.
In other words, you apparently make this statement as if you believe
it to be a logical premise of an argument instead of what it actually
is: a presumed conclusion which, since you indicate you contemplate
litigating, indicates that you seem unaware that you do not provide a
factual basis for this explicitly embedded conclusory assumption that
the bank was required by the parties' agreement or by applicable law
to make the payment in question immediately upon a demand at any time
of your choosing.
Post by n***@gmail.com=The signed/date-stamped by the bank paper, proves that the bank
received written instructions to pay out the mature investment on
date <dec 2010>
=The bank verbally refused the clients demand.
=The bank later claimed <penalty fees> to pay out the mature investment
=The bank later verbally, by telephoning the client withdrew their claim
to <penalty fees>
=The bank later urged the client to "set up an appointment to come to
the branch to allow you to sign the necessary documentation."
As pertinent to this thread, the only relevance of the Dec 2010
instructions and date stamp is to emphasize that the fairest inference
of your postings so far in connection with timing is that it was you
and not the bank who primarily (or, if you had been more factually
informative about what you each said to one another and did, perhaps
entirely) caused the delay of which you complain anyway.
Such an inference is virtually compelled by you not explaining in any
of your postings over many months why you waited for more than an
additional year after the expiration in Aug or Sept 2009 of the
initial period to try to withdraw funds from your account and that,
even then, you acted less on your own than, also according to what you
said, in response to the bank's Nov 2010 or Dec 2010 repeated requests
that you communicate with it.
Nor have you shown in any of your postings that the bank's request for
some sort of documentation before it would release the funds you tried
to withdraw was in any way improper. You have indicated instead
that, in addition to an obviously justified request for proper
identification, other documentation the bank asked for derived from
you saying to the bank's representatives that you wanted to be paid in
whole or in substantial part by travelers checks in connection with a
contemplated out of the country trip and that, as you have not
disputed, applicable law and related established bank policy made a
request that you provide reasonably required documentation for that
purpose understandable and justified.
You in any event also indicated that you or the bank did not take long
to resolve the bank's request for documentation so that how if at all
that request caused or even bears on any damage causing delay in
payment remains a mystery.
Your dwelling on a bank officer's at some point calling your attention
to an agreed penalty is especially immaterial. Not merely have you
posted T&C provisions that specified the existence of an obligation on
your part to pay and how to calculate the requested sum but, above all
in this connection, you also made clear that the bank withdrew its
penalty payment request.
Above all in connection with what you say above is what you continue
not to say: that there was any agreement violative or even otherwise
unreasonable bank caused lapse of time to resolve such requests and,
if based only on what you so far say, certainly not measurably damage
causing delay.
Post by n***@gmail.com=The bank has avoided committing to record, their withdrawal of their
claim to <penalty fees>.
For, but not only because of, the reason you go on to acknowledge
immediately below, this is patently ridiculous and anyway completely
irrelevant statement.
Post by n***@gmail.com{I've just realised: one should write to them and get their WRITTEN answer}
Exactly. And if you had done this and if the bank did not then
promptly dispute such an asserted confirmation of its withdrawal of
its penalty payment request, you would have had a basis if the
occasion later arose, which maybe would be a dispositive basis, to
claim that its failure to protest what you wrote precluded it from
later seeking the penalty in question.
But insofar as a flaw or not in your legal reasoning is concerned,
this is a palpably irrelevant and contrived logical diversion. Not
only have you not posted any fact that even hints any obligation on
the bank's part to confirm in writing its own waiver of a right to
which you indicate it would have been entitled but for its waiver but
in this connection, too, you have not posted any facts whatever that
connect the absence of any writing from the bank confirming its waiver
of an entitlement to which you had agreed while you also indicate that
the bank never tried to retreat from its said waiver.
Post by n***@gmail.com=The copy of the Contract that the bank emailed to the client to justify
their claim of <penalty fees>, applies to a PREVIOUS investment,
which previously matured and was TERMINATED by the bank, by
transfering the money to a current account, on which the bank
charges monthly <holding fees>.
You here repeat a conclusion devoid of supporting reasoning - a mere
conclusion since what you continue to fail to do in this connection is
quote any provision of any contract with the bank that shows that what
you unilaterally define as a "PREVIOUS investment" is not a sum which
(presumably with accrued interest less any agreed fees) the bank was
permitted or perhaps even required to continue in the circumstances to
roll over in the absence of instructions to the contrary from you
before it did so. In other words, you have not posted any facts
whatever that show that your "PREVIOUS" qualification is justified in
the sense that the 2008 agreement had "expired" rather than having
been legitimately renewed or otherwise extended.
Possibly, however, this - your "terminated by, etc.:, assertion - is
correct. But probably, not - although no reader of this or of your
other postings can know for sure based only on your repetitive but in
this connection entirely uninformative posting.
Post by n***@gmail.comTherefore the emailed contract does
NOT apply to the issue under dispute.
This "Therefore" does not follow from what you said so far. To the
contrary, here, too, one cannot know because you persist in refraining
from responsively answering the question I posed to you earlier which
you quote in your present posting without answering and because you
have not answered the related follow up ones posed above.
Post by n***@gmail.comTherefore the bank caused damages to the client without any
legal justification.
This additional "Therefore, etc." statement is manifestly flawed in at
least two ways. First, you continue implicitly to require your
postings' readers to disregard your several previous indications that
you, not the bank, predominantly or perhaps entirely caused whatever
was the delay between your initial withdrawal request and the bank's
payment in response. The second is summarized directly below.
Post by n***@gmail.comTherfore the Court should grant a damage claim to the client.
Despite your relentlessly adhered to question begging that prevents
reasonably doing this as applied to the facts you posted so far, lets
hypothesize the following:
A bank's client deposited $10,000 into an interest bearing account;
the bank-client deposit agreement unqualifiedly conferred on the
client the right at any time thereafter to demand payment of all sums
on deposit plus any/all then accrued interest less any previously
agreed fees and unqualifiedly obliged the bank in such event fully and
unconditionally to honor such a demand on that day made; one year
later, bringing with him all reasonably required identification and
account related documents and also saying he was prepared then and
there to sign any further reasonably requested receipt and additional
documentation, the customer demanded such a payment soon after the
bank opened on an early in the week ordinary business day; but the
bank declined to pay to the customer any of the sums on deposit.
If these were the only operative facts, then of course the customer
would be entitled to recompense for the delay between that demand day
and whenever he later was eventually paid the sums in question. (In
your real life transactions, you have not said that you were not
eventually paid all sums due you and, rather, only that there was some
sort of unspecified delay in such payment.)
But the questions remain: How shall any such recompense be measured?
Will the amount of recompense to which the client would be entitled in
such event justify or instead perhaps deter suing? And above all in
this connection as applied to you, even if it was not irrational as
your postings so far suggest it would be to hypothesize that you were
caused compensible damage by whatever was the delay however measured
to which you imprecisely refer, what would be your measure of damage?
Presumably you are aware that it is common for a bank-client contract
to contain provisions by which the client will have enforceably waived
a right to consequential damages in such event. But none of your
postings answer: What if anything does your bank-client agreement say
about this subject?
In other words, questions your postings about these subjects raise in
effect but which you have not answered factually or even implicitly in
effect are these: What is the monetary amount of the damage to which
you contend you were subjected? Is there a legal and factual basis
for the bank persuasively to claim that any/all such recompensible
damage is capped at, limited to, the amount of interest you would have
been able to earn from the period of your demand if made in compliance
with the applicable provisions of your bank-client contract through
the day of payment and, if so, what is the provable net amount of that
sum in realistically estimated cost compared with likely to achieve
benefit terms of suing?