We use cookies to optimise site functionality and give you the best possible experience. 3. He did so at paras 73 and 74 of his opinion by saying that the letter of obligation was collateral to the principal transaction and "could not be enforced if that principal transaction was void (as it was here)" and that, in any event, the pursuers could show no damage flowing from any failure by Longmuir & Company to produce a title encumbered with the standard security "since the standard security referred to in the Letter of Obligation was itself void". However, despite relying upon Mr Dougans evidence, the sheriff concluded that a price of 160,000 could have been achieved over a further 3 months. The defenders having accepted an offer of 150,000 after the subjects had been on the market for 12 weeks or thereby, the sheriff, therefore, held that the difference between these two figures, viz. Mr Morgan also produced the paper part of the driving licences of himself and his wife and two utility bills, one each in the name of himself and Mrs Morgan, which Ms Sinclair considered satisfactory identification. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. Together Personal Finance Limited is a member of the FLA. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. In accordance with that approach, to my mind, the sheriff exercised a broad judgement as he was entitled to do in a case where the amount of damages did not admit of precise of calculation. Information Commissioner Office number: ZA176000. (It should be stressed that the fact that the assessment of damages was at large for the sheriff was not the subject of any challenge by the pursuer having regard to the state of the defenders pleadings). The frauds perpetrated upon them as a result of fraudsters, each of the reclaimers involved two different pairs of individuals applying for a loan, pretending to be husband and wife who were owners of heritable property which was to institute the security for the loans. These cookies track visitors across websites and collect information to provide customized ads. Mrs Thomas said: The stress of this caused me to dread the postman calling.. This cookie is set by GDPR Cookie Consent plugin. After the hearing, the judge ruled that the clause in the agreement relating to changes to the interest rate was unfair, and therefore not binding on Charles, for a number of reasons. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). Google Analytics cookies help us to understand your experience of the website and do not store any personal data. In the BFL case Messrs Balfour & Manson were instructed by the borrowers to prepare the appropriate standard security, in favour of BFL Both firms of solicitors then engaged with Messrs Mellicks Solicitors, acting for the lenders, in relation to the execution of the standard securities. Our FCA reference number is 835212. That was a person identifying himself by the name of James Charles Whittaker Golding and claiming to be the registered proprietor of the property at 17 Richards Place. Registration is recorded at: https://register.fca.org.uk. In Blemain Finance Ltd v Goulding, the court had to determine whose interests prevailed, the registered owner of a property or a trustee in bankruptcy who had been unaware of the property and whose alleged interest in it had never been registered. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. Blemain agreeing to the original possession claim being thrown out. The case involved a solicitor warranting that he acted for both a husband and wife in the granting of a security over a home jointly owned by them. My reluctance to interfere with the sheriffs decision when it comes to the pursuers first ground of appeal is fortified by Lord Reeds reference in the case of Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd & Another 2014 SLT 775 to the principles governing the review of findings of fact by appellate courts and to the earlier decision of McGraddie v McGraddie 2013 SLT 1212. To do so risks summarily judging the value of the claim. (It should be noted that while the substantive law in both England and Scotland is the same in its effect the English tend to classify the liability as resulting from a collateral contract and the English system has also been concerned with judging as to whether there was consideration in respect of it, a factor that does not trouble the law of Scotland. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. Rachelle Nuttall , an associate solicitor in the firms Probate department has developed her career at Stephensons over the past ten Jury find mental health unit made a number of failures. Esto the pursuers are not entitled to decree as first concluded for, (which is denied), the second sum concluded for representing a reasonable estimate of the pursuer's loss as a result of Longmuir & Co's breach of representation as to their authority et separatim their breach of the Letter of Obligation, decree should be granted therefor.". We were told that in such situations they may seek to recover their losses from others such as the respondents in the present cases. Mr Allison contended that that approach to matters was entirely illegitimate and that interest should have been allowed. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. (Collen v Wright (1857) 8 EL and BL 647)". The defenders pleadings had been drawn up in such a way as to place in issue the existence of any statutory breach of duty under section 25 supra. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. [33] It follows that in relation to the BFL case the reclaiming motion is refused. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. Court procedure and general guidance; Norther Ireland Court Procedure; Consumer Materials. [26] Having regard to the history of the concept it is appropriate to have careful regard to English authority. On the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. In any event, the sheriff merely records that the defenders had frozen the interest on the shortfall. Mis-Sold Self-Invested Personal Pension (SIPP), Kings Norton family in doomed flat so cold and damp they live in coats and dressing gown, What is black mould and what health problems can it cause, Death of two-year-old from mould in flat a defining moment, says corone, Streetwise: Portsmouth womans heartbreak as foam insulation scam leaves her home virtually worthles. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. The court also heard that her application form said the loan was for home improvements, capitalisation, not for a house deposit. Longmuir & Company on 7 December wrote to Mr and Mrs Cheetham at 34 Danube Street advising them that the foregoing had been carried out and that the balance of funds after deduction of their fee had been forwarded as instructed by telegraphic transfer. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. The broker was supposed to have been acting in the customer's best interest in finding a loan that was the best for the customer. He informed the court that he did not make it a requirement that new clients should show this to him before he started work on their behalf, but made it clear that they would require to be produced at some point during any work being carried out by him for them. Nothing is disclosed that would adversely affect your security". [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. She required both Mr and Mrs Morgan to attend Balfour and Manson's offices for the purposes of showing identification documents in the form of a passport or driving licence and a utility bill confirming their address. Registered office: Cornelius House, 178-180 Church Road, Hove, East Sussex BN3 2DJ. In addition to being written in unusual terms, the letter refers to a land certificate in relation to a title which is recorded in the Sasine Register. This is a specific type, in fact probably the original type, of collateral contract: the agent offers to warrant his authority in return for the third party's dealing with his principal.". But the risks against which Excel is seeking to be protected in these proceedings are the commercial risks involved in lending to a person who may not be all that he claims to be. [23] The cross-appeal, in my opinion, falls to be refused in general terms because, in approaching the proof, the defenders did not see fit to place in issue the quantum of the pursuers claim. Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. The following year a suspended possession order was made but the arrears on her account were paid, so it wasnt activated. The respondent in the CMC action is the judicial factor appointed to the estates of a firm of solicitors known as Longmuir & Co who acted in the security transaction to which the action at the instance of CMC relates. Click here for a full list of Google Analytics cookies used on this site. Gordon Exall, Civil Litigation Brief, 2013-2023. The figure of 600,000 was noted by him in brackets on the form. The Particulars of Claim estimated the claim to be up to 21,325.67. (2) Every person who purports to act as an agent is deemed by his conduct to represent that he has in fact been duly authorised so to act, except where the purported agent expressly disclaims authority or where the nature and extent of his authority, or the material facts from which its nature and extent may be inferred, are known to the other contracting party". It appears, however, to highlight the limitations placed on an implied warranty of authority in such a situation as it was understood in at least that case. The respondents in the action at the instance of Blemain Finance Limited ("BFL") are Balfour & Manson LLP a firm of solicitors who acted in a security transaction with which the action at BFL's instance is concerned. The sheriff had cited the effect of the recession and the adverse feedback about the condition of the property as justification for the figure of 160,000. Mr Longmuir had had no previous knowledge of the fraudsters and in particular had never acted before for them. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". When the impostor was introduced to it as a prospective client, it carried out certain checks in order to satisfy itself that he was the person whom he represented himself to be, that he lived at the address at which he claimed to be living and that he was indeed the registered proprietor of the property at 17 Richards Place. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. He had the opportunity to consider the evidence in its totality. Blemain has had to reconstruct the account as a result, and the judgment has reduced the sum Charles is said to owe by about 25,000. In a subsequent telephone conversation on 23 November 2004 Messrs DM Hall confirmed the value of the subjects, if a sale had to be effected within 90 days, to be 575,000. Reference was made to SEB Trygg. ), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions. While the Lord Ordinary saw that as a separate basis for rejecting the claim, it may be that it is simply another way of expressing the result of the letter being ancillary to a void obligation. Though they may not have had any specific knowledge of the inquiries made by Excel, they could reasonably have assumed that Excel would have carried out sufficient investigations to satisfy itself as to the identity and creditworthiness of the individual concerned. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. The Commission brings enforcement suits in U.S. District Courts when matters are not satisfactorily resolved through the administrative enforcement process and sues to enforce administrative subpoenas. As previously noted Mr Cheetham came into the offices of Longmuir & Co on 30 November. They lend both to individuals and corporate borrowers against security provided by the borrowers, normally in the form of a standard security over heritable property. This cookie is set by GDPR Cookie Consent plugin. These cookies will be stored in your browser only with your consent. The proceedings related to an unregulated, interest-only, secured loan for 30,000 that Mrs Charles entered into in August 2006. You can also follow my blog on consumer credit here. The instructions to Messrs Mellicks were in similar terms to the instructions given by CMC in the case of Mr and Mrs Cheetham. The reclaimers' sole complaint was that the borrowers, having turned out not to be the owners of the subjects over which the reclaimers wished to have security for their lendings the respondents were in breach of their respective implied warranty of authority. Have you had a loan with Blemain Finance? [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. Professional lenders were seeking to recover from a firm of solicitors their losses resulting from identity fraud by borrowers for whom the solicitors had acted in preparing security documents over property of which the borrowers claimed they were the true owners. If, therefore, he never had authority to act on behalf of the principal or if his authority has terminated or if he exceeds the scope of his authority, he will be in breach of the implied warranty and will be liable in damages to any person to whom the warranty was given. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. She went to her local Citizens Advice Bureau who referred her toStephensonsin September 2008. If the principal proves unreliable, that is something in respect of which the third party could have made inquiries. Analytical cookies are used to understand how visitors interact with the website. Meanwhile, the period of notice was very short only seven days and the consumers right to redeem was curtailed by early redemption penalties throughout a significant period of the agreement. Birmingham City Council v Forde [2009] EWHC 12 (QB) (13 January 2009) Birmingham City Council v Gaston [2004] EWCA Civ 693 (20 May 2004) Birmingham Midshires Building Society v. Infields (a firm) [1999] EWHC Technology 232 (20th May, 1999) Birmingham Midshires Building Society v. Do you want to send me a private message with a little more detail on the background issue? In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of, [8] Mr Allison criticised the sheriffs approach to interest on two levels. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. It was not contended on behalf of the reclaimers, nor was it found by the Lord Ordinary, that either Messrs Longmuir or the respondents in the BLF case had acted in anything other than good faith or that they had not understood that the borrowers had title to the subjects over which they granted the pretended securities. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. However, that particular error was not relied upon by the defenders as a defence to the claim for failure to implement the letter. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. It was a term of the mortgage offer that the loan be secured by a first mortgage over the property in the form of the draft standard security accompanying the offer. Each case listed has a dedicated page including a case summary, as well as links to court opinions and related documents filed in the suit. Electronic Case Filing & Court Records; BEGIN: Electronic Case Filing; ECF Forms, Instructions, and Other Information; Bar Member/Attorney Information Lookup; PACER; Fee and Payment Information; Court Records We acknowledge the county courts judgment, which found points in favour for both parties, including the rejection of any unfair relationship or irresponsible lending by Blemain. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. Mr Allisons submission was to the effect that none of these features could properly be said to inform the decision to prefer the figure of 160,000 to that of 175,000 as proposed by Mr Dougan. His Lordship at para 96 sought to base his conclusion as to the limits of a warranty of authority in any particular case as something to be determined by reference to the specific circumstances which had given rise to the warranty. It was submitted that the shortfall on the pursuers account with the defenders, following upon the sale of the subjects, ought properly to have been set against the figure of 10,000 which the sheriff was minded to award thereby, in effect, eliminating any such award. The application, which was on a Blemain Finance Application Form, was submitted by Mr Hodges-White, a commercial finance broker then trading as Cestrain Business Finance. I am not persuaded that any of these features have been made out. The surveyors report also indicates that alterations have been made to the property and we should be pleased to receive the appropriate building warrants and completion certificates. In other words, the defenders, through MsHamilton, maintained that when the shortfall amount was taken into account there was, in any event, no loss and that the sheriff had, once again, erred in that regard. Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. The factual situation in that case had strong similarities with the situations in the present actions. Wigan-based law firm, Stephensons, is marking the tenth anniversary of one of its long-standing members of staff. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. Liam Waine, a consumer partner atStephensons, said: It became apparent that the last three agreements were not executed correctly and were therefore unenforceable because the amount of credit on them was incorrectly stated. Mr and Mrs Morgan attended, as requested, on 23 November. In relation to the CMC case we require to address the effect of the letter of obligation relied upon by the reclaimers in that case. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. The pursuer has achieved a modicum of success in terms of her appeal. Excerpts and links may be used, provided that full and clear credit is given to Gordon Exall and Civil Litigation Brief with appropriate and specific direction to the original content. [17] In any event, in determining these appeals, I require to recognise that in presiding over the proof the sheriff had the advantage of having seen and heard the witnesses involved. On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". [8] Mr Allison criticised the sheriffs approach to interest on two levels. He also seemed to have placed weight upon the fact that the figure of 160,000 equated to the figure specified in a Market Appraisal dated 13 August 2009 prepared on behalf of Aberdein Considine. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. There was no attempt on record to challenge the pursuers averments thereanent. The documents were then sent on by Longmuir & Co to the borrowers under cover of a letter addressed to them as Mr and Mrs C Cheetham at 34 Danube Street, Edinburgh. (1) (a) The small claims track is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than 10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs. The borrowers' solicitors were identified in this document as Longmuir & Co. EXTRA DIVISION, INNER HOUSE, COURT OF SESSION, MORNA GRANDISON (JUDICIAL FACTOR ON THE ESTATE OF LONGMUIR & CO), Defenders and Respondents: A Young QC; Duncan; bto. [10] On 25 November 2004 Mellicks wrote to CMC in the following terms: We write to advise that we have will (sic) receive the Credit Agreement signed by Mr & Mrs Cheetham the Standard Security duly signed together with a Standing Order Mandate on Friday 26th November 2004. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. He noted that Messrs Mellicks had been acting for the lenders. A .gov website belongs to an official government organization in the United States. (See paragraph[18] in Wilson). Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of Gage v HMA 2011 SCL 645 and Wilson v Dunbar Bank plc 2008 SLT 301. National law firm Stephensons represented the family of Claire Louise Morris who died after an act of self-harm in her home in Wythenshawe where she was receiving 24-hour supervision under the care of Jigsaw Hospital, which was run by Equilibrium Stephensons Solicitors LLP is a full service law firm withsolicitors in Manchester,solicitors in London, solicitors in St Helens, solicitors in Warringtonand solicitors in Wigan. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. [27] In SEB Trygg Liv Holding AB v Manches (2006) 1 WLR 2276 the limited nature of the implied warranty of authority was emphasised by the Court of Appeal in a case involving solicitors who commenced arbitration proceedings in the name of a company which was no longer in existence. She had never met or acted for Mr and Mrs Morgan previously. [12] Under reference to the second ground of appeal for the defenders, Ms Hamilton made much of the significance of comparables in the context of Mr Dougans evidence. To control which cookies are set, click Settings. VAT number: 144 4752 12. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. The sheriff principal, having resumed consideration of the pursuers appeal and the defenders cross-appeal, refuses the latter and in respect of the former allows same in part; varies the sheriffs interlocutor dated 30 April 2014 and that by awarding interest on the sum of Ten Thousand Pounds (10,000) Sterling at the rate of eight per cent per annum from 1 March 2010 until payment; [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. We consider it more appropriate in such discussions to talk of attributes of clients rather than the identity of a client. This situation has affected my mental and emotional health, my credit file is ruined, and the funds I expected for my retirement are now also affected.. We have had sight of the necessary Searches in respect of the properties. The risk that the law has sought to address by the implication of a warranty of authority is that the agent may not have the authority which he claims; and the justification for such an allocation of risk is that the agent is in much the better position to know or ascertain whether he has the requisite authority. As already indicated Scots and English law reach the same result in such questions albeit, perhaps, on occasions using different terminology or concepts. As already noted the reclaimers also disclaimed, as they had before the Lord Ordinary, any claim which is to any extent dependent on some failure of duty of care said to be owed to them by the respondents. BFL v Balfour & Manson LLP - the factual position. As it was, he had, aside from all else, been denied that opportunity. JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION, RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE), PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS, COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF METAPHORICAL WARFARE, COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS, A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY 17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF "METAPHORICAL WARFARE", Coronavirus: Guidance for lawyers and businesses, Munkman & Exall on Damages for Personal Injuries and Death 14th ed, The APIL Guide to Fatal Accidents 4th edition, Kings Chambers Costs & Litigation Funding, Website of 4-5 Gray's Inn Square, Catastrophic Injury Group. I do not accept the proposition that there was no evidential basis for that figure. The arrears were cleared and no further action was taken. [21] The rest of the transaction appeared to proceed in a straightforward and routine manner. It is sufficient to highlight certain of these matters for the purposes of disposing of these reclaiming motions. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. Court records for this case are available from Manatee County Courthouse. . [37] Although the obligation assumed in the Cheshire Mortgage letter of obligation was much wider, both in terms of its duration and the content of the obligation, than is normally the case, it was plainly written and delivered as a letter of obligation ancillary to the mortgage transaction being settled on the date of its delivery.
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