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. The sheriff principal, having resumed consideration of the pursuer's appeal and the defenders' cross-appeal, refuses the latter and in respect of the former allows same in part; varies the. You can also follow my blog on consumer credit here. The fourth ground of appeal for the pursuer was not insisted upon. [19] In contrast, the arguments advanced by Mr Allison in furtherance of the second ground of appeal for the pursuer were, in my view, well-founded. Quite apart from what we consider is clearly and authoritatively the existing law on the matter, we are of the clear view that there are no reasons in principle or practice, for extending the somewhat limited scope and nature of the implied warranty of agents in the way in which the reclaimers' submissions in the present cases contended for. They were sent an instruction letter on 8 November 2004 from CMC which identified the borrowers as Christopher Paul Cheetham and Julie Cheetham with a correspondence address at 34 Danube Street, Edinburgh, which was also given as their security address. (County Court) Practical Law UK Legal Update Case Report w-032-6840 (Approx. [24] In any event, I reject Ms Hamiltons submissions in so far as they sought to call into question the detail and quality of the evidence before the sheriff all in terms of grounds of appeal 1 and 2 for the defenders and that for the reasons mentioned in paragraphs [17] & [18] supra. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. Ms Hamilton, in particular, adhered to the penultimate sentence of the second ground of appeal for the defenders which suggested that there had been no evidence before the sheriff to support the conclusion that advertising the property in a different way or for a longer period of time or amending the price of the property in a different way would have achieved a higher price. Key court cases relating to the campaign finance law. [28] The principal argument advanced by the reclaimers, in the present actions, as to the nature and extent of the implied warranty of authority given by a solicitor in acting for clients in the granting of a security over a property in return for a loan being made to them by a professional lender fell to be considered in a recent English case Excel Securities v Masood [2010] Lloyds Rep. P.N. He confirmed that they had requisitioned copies of the prior title deeds. On 27 October CMC issued an offer letter addressed to Mr and Mrs Cheetham, referred to as "the Borrowers". It seems to us that that decision does not assist in relation to the specific issue we have to determine in the present cases. This cookie is set by GDPR Cookie Consent plugin. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. All times are GMT. It added that Charles, who now lives in Worthing, was an intelligent borrower who went into the agreement open-eyed and, based on the figures she provided, the monthly payments were affordable. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. Moreover, the defenders having explicitly agreed to the shortfall being left out of account (for the reasons specified at paragraph [9] in the sheriffs Note) that agreement precludes the defenders from founding upon the figure of 10,645.31. Mr Morgan explained that they required the loan in order to buy property in Spain and requested that the funds be paid direct to parties in Spain. Each agreement was out by a few pounds and pence.. Ms Hamilton, for the defenders, argued that the absence of evidence regarding what particular steps ought reasonably to have been taken by the defenders meant that there had been insufficient evidence before the sheriff to enable him to conclude that the defenders were in breach of the statutory provision in section 25, [16] Mr Allison also founded upon the case of. [9] On 24 November a formal mortgage offer was issued by CMC. Mr Longmuir wrote down a mobile telephone number which they gave him for the purposes of contacting them. Under the heading "B Standard instructions" there appeared as follows: "11. In Elias & anor v Blemain Finance HHJ Keyser QC gave helpful guidance on the application of the allocation guidelines for the county court at CPR 26.7 & 26.8. She went to her local Citizens Advice Bureau who referred her toStephensonsin September 2008. It cannot be read to have imposed the extraordinary obligation upon the respondents which the reclaimers argue for. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. [8] Mr Allison criticised the sheriffs approach to interest on two levels. Although it was interest-only and the interest rate was very high and I thought the terms were a bit difficult to understand, I thought: OK, maybe I can change something about this later on.. 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". Debt Collection; Consumer Credit Sourcebook (CONC - FCA rules) Mortgages and secured loans; Legal. Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. 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.. Counsel for the reclaimers accepted that if the decision in that case fell to be considered to be good law for Scotland then they would fail on the main point raised by them in both cases, namely the scope of any implied warranty of authority by the respondents. This cookie is set by GDPR Cookie Consent plugin. The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. 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 His, is there any update on this. This page was generated at 16:20:PM. District Judge Pithouse at Dartford County Court found that the secret commission paid by Blemain Finance to the broker made it not possible for the broker to act in the best interest of the customer and that Blemain were liable because there was nothing in their finance agreement to inform the customer of this. [15] In reaching his decision, the sheriff mentions in his Note that he was influenced by the evidence of Mr Dougan. Registered office: Cornelius House, 178-180 Church Road, Hove, East Sussex BN3 2DJ. Please check and confirm when the customers purchased the property and for how much. 4-5 Gray's Inn Square, London. Registration is recorded at: https://register.fca.org.uk. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. There had been evidence to the effect that interest on the outstanding balance due to the defenders had been frozen by them as at the date of the sale of the subjects. The cookies is used to store the user consent for the cookies in the category "Necessary". By Mike Scarcella. District Court Opinions; Unsealed Orders, Opinions, Documents and Docket Reports; Standing Orders; Guantanamo Cases; Links to Other Courts; ECF & Court Records. The public information viewed on our online case search system reflects the docket entries in civil, criminal, criminal domestic violence and tax cases, probate cases for large estates and small estates, disclaimers of interest, major litigation, wills, and foreign estate proceedings. In any event, the sheriff merely records that the defenders had frozen the interest on the shortfall. 13. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. In some cases these terms were, in due course, given statutory force in, for example, the Sale of Goods Act, the Bills of Exchange Act etc. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. The facts found, in both actions, reveal a striking resemblance. Furthermore, he was almost certainly the person with whom Excel itself had been dealing on the basis of the same misapprehension as to his name and identity. Click here for a full list of third-party plugins used on this site. In particular the standard and specific instructions were the same. Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. He had the opportunity to consider the evidence in its totality. Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. They lend both to individuals. Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. [18] Accordingly, I reject the first ground of appeal for the pursuer. At page 1361 Waller LJ giving the judgment of the court cited the following from Chitty on Contracts: Specific contracts, 27 ed (1994), Vol 2 page 61, para 31-093: "One who expressly or impliedly warrants that he has the authority of another is liable in contract for breach of warranty of authority to any person to whom the warranty is made and who suffers damage by acting in the faith of it, if in fact he had no such authority. Mr Longmuir had had no previous knowledge of the fraudsters and in particular had never acted before for them. 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. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". The judgment stated that Charles said she wanted to pay off the loan early but all her attempts to negotiate failed. They also returned the draft letter of obligation drafted by Longmuir & Company. For more information on this, contact Liam and his teamon01616 966 229. FEC cases are listed alphabetically with links to summaries and (for some cases) court opinions and other documents. Although the implied warranty of authority in agency, as enunciated in the case of Collen was of English origin it was adopted into the law of Scotland like many of the other instances of judicial legislation in commercial matters just referred to. Blemain Finance - Consumer Action Group Library Activity More All Activity Home Banks, Loans & Credit Other Institutions Blemain Finance 21 hours ago Sunday at 19:34 Twitter - Include the @company's twitter name in your post title - here's why Are you going to pay your builder or your second-hand car dealer in cash or with a bank transfer? Privacy Policy | 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. As in the CMC transaction the "borrowers" subsequently disappeared, the standard security has proved to be a nullity and no recovery has been made of the sums advanced by BFL. The Defendant says that rescission as a remedy is fanciful in this case, that the Court will have to look at all the circumstances, that the borrowing was actually used for consolidation of other loans and that in reality what the Court will be doing is looking at an appropriate remedy probably of damages based on commission and charges most likely in the region of around 2,500. Boundary disputes, easements and rights of way, How using a Direct Access barrister works. TORONTO, January 18, 2023--SPOT COFFEE (CANADA) LTD. (TSXV:SPP) ("SPoT Coffee" or the "Company") hereby refers to its news release dated October 12, 2021 whereby SPoT Coffee announced that its . We use cookies to optimise site functionality and give you the best possible experience. The terms of the loan were set out in the letter. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. [26] Having regard to the history of the concept it is appropriate to have careful regard to English authority. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. [4] In the present proceedings, both sets of reclaimers sue the respondents for loss which they aver they suffered through the respondents' breaches of their warranty of authority. She also described being bombarded with letters and phone calls about the arrears. 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. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. He also advised the secretary that payment of the funds was to be made electronically to "Elmwood Contracts". The reclaimers in each case advanced the loans in the belief that the borrowers owned the subjects in respect of which the standard securities had been granted. Removing or resetting your browser cookies will reset these preferences. On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". [1] These appeals arise out of an action raised under section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in which the pursuer seeks damages from the defenders on the basis that they failed to sell repossessed heritable subjects for the best price that could reasonably have been obtained. 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. It was accepted that steps could be taken, if the Keeper agreed, to effect a first registration in the Land Register. But I nonetheless I (sic) agree with Mr Berkley that the core problem sought to be addressed by the imposition of a warranty of authority is whether the person acting as agent did or did not have authority so to act.". Well we don't know if Blemain will appeal. The agency also defends suits contesting its dismissals of administrative complaints, petitions for review of Commission decisions regarding the presidential public funding program and civil suits challenging the constitutionality of provisions of the Federal Election Campaign Act . The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. Accordingly, it was argued on behalf of the defenders that the pursuer, on the evidence, ought to have failed when it came to the merits of the action. She had never met or acted for Mr and Mrs Morgan previously. An agent acting on behalf of an identified principal will not normally incur any personal, contractual liability so long as he acts within the scope of his authority. Stephensons Solicitors LLP is a limited liability partnership. That risk normally manifests itself in the fact that, if the agent does not, in truth, have the authority which he claims, the other party will be deprived of any effective redress against the assumed principal. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. They would, of course, have warranted that they had authority to act on behalf of their client. The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. Jane Charles is hoping her 15-year nightmare involving a costly interest-only loan may soon be over after a court ruled that some of the lenders terms and conditions were unfair. 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. I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated. BFL issued an offer letter to the borrowers the same day i.e. The first letter was accompanied with certain documents signed by Mr and Mrs Cheetham. . Insofar as it was referred to to bolster the argument based on the implied warranty of authority, we do not consider that it had any such effect. Details of the short assured tenancy she said would be forwarded to them as soon as possible. [16] Mr Allison also founded upon the case of Wilson. It is Blemain's case that they relied on that valuation to loan the owners of the property, Mr and Mrs Sherman, 250,000 by way of a second mortgage. Have you had a loan with Blemain Finance? that the sheriff had erred in failing to award interest to the pursuer. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. Charles said it was the broker who suggested those words be put down in order to help get the loan through easier. Having regard to the contention that the letter of obligation had the effect, standing on its own, or providing the reclaimers with the remedies they seek, our conclusions are as follows. The cookie is used to store the user consent for the cookies in the category "Analytics". 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. His Lordship then referred to certain considerations which were set out and discussed in the case of Midland Bank Plc v Cox McQueen [1999] PNLR 593 as to the limited scope there is for implying obligation to third parties to the given by person such as solicitors providing professional services, the third parties in question not being their clients. 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. They may also ask that you transfer the money via the Post Office or Western Union. Wigan-based law firm, Stephensons, is marking the tenth anniversary of one of its long-standing members of staff. Bridging Finance Limited | Registered in England and Wales - Company Registration Number 03166982 Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. Your choice regarding cookies on this site, Succession & estate planning for business owners, Partnership agreements & limited liability partnerships, Directive on security & network information systems, Privacy & electronic communications regulations, Claims against HM Courts & Tribunal Services, Care home fees and planning for the future. In considering whether or to what extent interest should be awarded on the damages figure, I am, at best, doubtful that the court is entitled to consider arrangements which may or may not have been made in regard to the charging of interest on a discrete sum of money which is distinct from the award made by the court. 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. But they nonetheless carried out their own checks, which were, in fact, similar to those which had previously been carried out by Excel; and, after they had done so, like Excel, they were content to accept that their client was the person whom he represented himself to be". However, while this is a good result for her, it will still have proved to be a very expensive loan. Superior Court. He wrote also to the fraudsters at 34 Danube Street including a copy of Mellicks' letter and requested them to contact him in order that he could take their further instructions. Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. Beyond that, no further case had been made out. The value of the property was noted as 600,000. 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. To pay the deposit on the new property, she borrowed from Blemain via an interest-only loan secured on her flat. The District of Columbia Courts now has eight community courts: DC Community Court, Mental Health Community Court, 1D Community Court, 2D/4D Community Court, 3D Community Court, 5D Community Court, 6D Community Court, and 7D Community Court. Once again, Ms Hamilton sought to challenge the detail and the quality of the evidence before the sheriff in support of a submission to the effect that absent evidence suggesting that a higher offer would have been submitted to the defenders had they taken other steps, no finding could be made against them in terms of section25. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. Secure .gov websites use HTTPS We remind ourselves that Collen v Wright has been held to be the leading authority in this area in the law of Scotland for more than 150 years. 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. This appears to have been a major consideration in the emergence and development of the doctrine. The fraudsters, in the event, have disappeared. 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. On 30 November Messrs Mellicks sent Longmuir & Company a cheque in the sum of 350,220.50 representing the loan of 354,868 less certain fees and dues. In the law of Scotland the legal foundation of the liability created is described by Gloag on Contract (2nd edition) at page 155 as: "The rule that the assertion of authority implies a contract that the authority exists is of general application". The Court should be slow to allocate to a track normally associated with a lower value. 2. Messrs Mellicks, who had been informed that Balfour and Manson were acting for Mr and Mrs Morgan, wrote to Ms Sinclair on 29 September giving details of the proposed loan and requesting details of the title and the short assured tenancy which they understood was in place in relation to it. The broker was supposed to have been acting in the customers best interest in finding a loan that was the best for the customer. 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. Since no such land certificate had been delivered, the defender was in breach of that obligation and bound to compensate the pursuers for their resultant loss. 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. This website uses cookies to improve your experience while you navigate through the website. A lock ( LockA locked padlock ) or https:// means you've safely connected to the .gov website. On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes. 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