In that state of affairs, it is simply not open to the defenders, on appeal, to mount a challenge directed at the courts assessment regarding the quantum of damages. Messrs Mellicks were to be involved in the obtaining of the standard security and were instructed to liaise with the borrowers' solicitor for that purpose. If the principal proves unreliable, that is something in respect of which the third party could have made inquiries. Having considered the relevant authorities on this topic the Lord Ordinary reached the following conclusions in both cases, at para 64 of his opinion: "In those circumstances, it is, in my opinion, difficult to see any room for any implied representation by the solicitors as to the identity of the borrowers for whom they were acting, other than that they were acting for the people with whom the lenders were already engaged in a process of finalising a loan transaction. 3 pages) Ask a . In the CMC case the reclaimers' pleas-in-law are as follows: "1. To control which cookies are set, click Settings. 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. U.S. District Courts | Finance | 1:22-CV-04958 | 2022-12-16. Washington, DC 20463, Federal Election Commission | United States of America. The identity of a person is made up from a bundle of qualities or attributes. 3. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. That much was conceded by Ms Hamilton during the course of the appeal. Our specialist solicitors deal with everything from medical negligence claims,personal injury claims,driving offences, family law,divorce lawandresidential conveyancing toprofessional discipline, employment law,corporatelaw, regulatory lawand commercial property. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. [15] In this case the borrowers were fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Margo Clark Morgan. Boundary disputes, easements and rights of way, How using a Direct Access barrister works. Analytical cookies are used to understand how visitors interact with the website. [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. Its the responsibility of the creditor to ensure they comply. They also returned the draft letter of obligation drafted by Longmuir & Company. If you continue to use this site we will assume that you are happy with it. 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. We are aware of a financial scam whereby a firm purporting to be Blemain Finance will ask for money upfront for unsecured loans. Get free access to the complete judgment in Blemain Finance Ltd v Goulding on CaseMine. It cannot be read to have imposed the extraordinary obligation upon the respondents which the reclaimers argue for. Court cases. Both of these letters were headed "34 Danube Street". The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. Necessary cookies are absolutely essential for the website to function properly. They claimed she owed 52,000. It appears to us that this letter has exactly the same status and meaning as that recognised, apparently by the parties, as applying to the letter in the Blemain case. 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. 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. The client opening form, completed by Mr Longmuir in manuscript on that day, showed the full names of those for whom he thought he was acting, namely Christopher Paul Cheetham and Juliet Cheetham, and it gave their address 34 Danube Street, Edinburgh, EH4 1NT. Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. The cookies is used to store the user consent for the cookies in the category "Necessary". It sent us this statement: We are sorry to hear that our customer, who took a loan out with us in 2006, was unhappy in her experience. In particular the standard and specific instructions were the same. Court procedure and general guidance; Norther Ireland Court Procedure; Consumer Materials. However, while this is a good result for her, it will still have proved to be a very expensive loan. In particular on 17 November, Mr Longmuir wrote to Mellicks enclosing for their examination extracts (i) of the disposition in favour of Mr and Mrs Cheetham recorded in the Register of Sasines on 28 June 1989 and (ii) of the discharge by the building society in favour of Mr and Mrs Cheetham recorded in that Register on 24 April 1995. (Collen v Wright (1857) 8 EL and BL 647)". 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". For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. In 2018, Blemain sought to enforce the possession order. On 11 November Ms Sinclair wrote to Mr and Mrs Morgan asking them to come to her office to sign the standard security and other documents. A modern statement of the position in Scotland is to be found in the current edition of Gloag and Henderson The Law of Scotland (12th Edition) at para 19.26 where the following can be found: "If he (the agent) honestly thought he had the principal's authority, as where an auctioneer, by mere mistake, sold a horse which was not for sale (Anderson v Croall (1903) 6F 153), or solicitors believed that they were representing a trust when in fact there were no trustees (Scott v J.B Livingston and Nicol 1990 SLT 305) the agent will incur liability on the theory that an agent impliedly warrants that he has the authority of the principal whom he names, and is liable in damages for breach of that warranty if it turns out that he has no authority. I enclose a separate letter of instruction in this regard signed by myself and my wife". You can also follow my blog on consumer credit here. Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. 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. Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. Thanks for the referral PT2537. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. His dealings were with Mr Cheetham. They claimed she owed 52,000. [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. If there are doubts as to the realistic value of the claim then there is a mechanism in CPR 26.5(3) to require the claimant to justify their value [17]. She took out the loans for home improvements, debt consolidation and to purchase a car, with the amounts borrowed each time ranging from 5,000 to 10,000. 449153. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. They were living at 30 Guthrie Court, Auchterarder to which all correspondence should be sent. Ms Sinclair explained to them the effect of the standard security and the interest rates applicable to the loan. The payment protection she had taken on two of the agreements only covered her for the first 12 months she was out of work and in total she received only 2,311.32 in repayments from the payment protection insurer, despite paying much more in premiums and interest. But its application is not limited to cases where a transaction entered into in reliance on the supposed authority of the agent was with the alleged principal himself. At the start of this year it went down from 14.4% to 11.45%, reducing her monthly payment from 396 to 315. 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 supra. He never in fact met Mrs Cheetham. 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. England and Wales Cases page 45. [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. There are many people facing similar situations and this case illustrates that even the most complicated debt problems can be unravelled to secure a positive outcome.. The reclaimers in each action now reclaim against those decisions of the Lord Ordinary. 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. 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. The starting point is the pleaded value of the claim pursuant to CPR 26.8(1)(a). As previously noted Mr Cheetham came into the offices of Longmuir & Co on 30 November. 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. However, it is now well established that, in such circumstances, the agent will normally be regarded as giving an implied warranty as to his authority. The transaction in this case followed closely the path of what happened in the CMC case. Solicitor marks a decade of service helping bereaved families. FEC cases are listed alphabetically with links to summaries and (for some cases) court opinions and other documents. Mr Longmuir's secretary photocopied these. 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. It is plain that there was evidence from Mr Dougan to the effect that the property had been sold for too little and that with marketing over a longer period it might possibly have fetched 175,000. Vat no: 294 8327 19Authorised and regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - No. He also advised the secretary that payment of the funds was to be made electronically to "Elmwood Contracts". In that letter the following appeared: "Once the loan monies are received these are to be paid over to complete our purchase of property in Spain. 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. In para 97 of his judgment Judge Hegarty said: "Excel carries on business in the financial sector, specialising in making short-term commercial loans. The claimants appealed the decision to allocate the matter to the small claims track. Firstly, under reference to paragraph [9] in the sheriffs Note, having explicitly precluded consideration of the shortfall for the purposes of determining the principal sum due to the pursuer, the sheriff then decided that the existence of the shortfall, [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to, [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. Please check and confirm that the property is in the sole name of Christopher Paul Cheetham and Juliet Cheetham. Well we don't know if Blemain will appeal. However, it seems to me that the approach approved of by the Extra Division of the Inner House is not dissimilar to that adopted by the sheriff in the present case. Please check and confirm when the customers purchased the property and for how much. [32] Insofar as the reclaimers position was to argue that, under the existing law there could be an implied warranty of authority, in respect of what they called "the identity" of the agent's client, we have already commented on the appropriateness of the use of the word "identity" in this context. He noted that Messrs Mellicks had been acting for the lenders. 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 . 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. [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 Criminal Division is administratively divided into four branches: Case Management, Special Proceedings, Quality Assurance, and Courtroom Support. FCA number is 719121. [98] BM Solicitors, on the other hand, were a firm providing professional services and, as such, would not normally be expected to do more than carry out those services with reasonable professional skill and care [99] In the present case, BM Solicitors were almost certainly instructed by the self same impostor as had been dealing directly with Excel itself. This was a 25-year loan Charles was 52 when she took it out and the rate has moved up and down. In dealing with the scope of the warranty the judge at para 59 of his judgment stated: "The essential legal principles applicable to such a claim are not in doubt. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. Firstly, under reference to paragraph [9] in the sheriffs Note, having explicitly precluded consideration of the shortfall for the purposes of determining the principal sum due to the pursuer, the sheriff then decided that the existence of the shortfall should be taken into account when consideration was being given to what, if any, award of interest should be made. Together with the instructions were included a valuation of the secured subjects by DM Hall and copies of driving licences for both Mr and Mrs Morgan for identification purposes. 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 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. By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy. The judgment raises issues that could affect thousands of people, and is likely to be studied closely by other borrowers, including customers of other subprime lenders. Powered by vBulletin Version 5.3.4 Copyright 2023 vBulletin Solutions, Inc. All rights reserved. [19] No further movement in the transaction appears to have occurred until 26 October 2004 when Ms Sinclair met Mr Morgan and received from him extract registered title deeds for the proposed secured subjects. The third ground of appeal for the defenders also fails. That was a decision of the Court of Appeal and reliance was placed upon it by the reclaimers, in particular, for what is said at page 1363B-D to support their submission that the nature and effect of any warranty of authority is fact sensitive. 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. The case pitted Charles, a. Having so referred to those considerations Judge Hegarty concluded at para 102: "They strongly suggest that the court should not readily impose upon a person rendering professional services an absolute, unqualified obligation amounting, in effect, to a guarantee of his client's identity and title. Charles has so far paid back a total of almost 60,000 in interest, and there is still an outstanding debt of almost 45,000, even after the deduction. Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. And when they applied in February 2009 to Blemain Finance Ltd for a loan, Mr Cordner said that his income was 21,000.that pre-funding was necessary in order to finance the construction of the development, but Mr Clarke added that had Mr Hone told him, Mr Clarke, to ask for the whole of the purchase price up front.within his own resources or proposed to raise it through other sources of finance. The Penn case was not concerned with an issue as between the third party and an agent contending that he had authority to act for a principal. Mrs Thomas said: "The stress of this caused me to dread the postman calling." She went to her local Citizen's Advice Bureau who referred her to Stephensons in September 2008. After analysing these authorities and considering the submissions made to him the judge, at para 90 of his judgment, stated: "The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. The offer, which was valid for three months, was for a loan for one year of 350,000 plus 4,868 in fees to be added to the loan, and contained details of the repayment schedule. Mr Allison submitted that had the issue of the shortfall and any consequences said to flow from its existence been focused in the defenders pleadings, that would have afforded him the opportunity to table certain discrete counter propositions in response. 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. 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. A woman has had three loans, which were secured against her home, written off thanks to a leading North West law firm, giving renewed hope to thousands of others facing a daily debt nightmare. The clause relating to the recovery of costs, charges and expenses was also judged to be unfair as it was too heavily weighted against the consumer and could mean a borrower having to pay a disproportionate amount in charges. We were told that in such situations they may seek to recover their losses from others such as the respondents in the present cases. 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. [39] We also agree with the secondary basis on which the Lord Ordinary rejected the claim based on the letter, viz that the pursuers could show no loss since the obligation to which the letter of obligation was ancillary, the standard security, was void. Each agreement was out by a few pounds and pence.. [24] It should be noted that before this court counsel for the reclaimers and respondents did not seek to attack the Lord Ordinary's findings in fact. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. [22] It was argued before the Lord Ordinary on behalf of the reclaimers that those factual situations allowed the reclaimers, in each case, to sue the respondents for their losses on the basis that the respondents in each case had been in breach of their implied warranty of authority as agents. 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. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. (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. 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. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. He explained that he wished to raise money and was keen to have the transaction completed quickly. So it is only right that the risk of lack of authority should be borne by the agent by way of an implied warranty. It was marked for the attention of Akay Ahmet. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. The value of the property was noted as 600,000. 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. StephensonsSolicitors LLP won the County Court case for Mrs Thomas fromPenzance, who had taken out five secured loans over her property between September 2004 and January 2008 with creditor,BlemainFinance. She also described being bombarded with letters and phone calls about the arrears. The warranty did not extend to warranting that the client had title to sue, was solvent, had a good cause of action or defence or had any other attribute asserted on his behalf. Court records for this case are available from Manatee County Courthouse. [30] We would simply add this. If so, Consumer Reclaim could get you many thousands of pounds back. He also enclosed a draft of their letter of obligation. The cookie is used to store the user consent for the cookies in the category "Performance". Both companies are in the business of secured lending. In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. Please switch to another browser like Chrome, Firefox, or Edge for a better experience. The fraudsters, in the event, have disappeared. Enter your email address to subscribe to this blog and receive notifications of new posts by email. By submitting your information you confirm you voluntarily choose to contact us via this website. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. Official websites use .gov This cookie is set by GDPR Cookie Consent plugin. They argued that the misstatement was only slight and therefore insignificant. We use cookies to ensure that we give you the best experience on our website. Therefore, it is appropriate that the expenses occasioned by the appeal should be awarded in favour of the pursuer. It refers at the outset to "the settlement of the above transaction today", is time limited, and contains at its core an obligation to ensure that the Register contains no entry prejudicial to the interests of the pursuers before the pursuers' interest is registered. Just because a party is legally represented does not mean that a case that has a moderate degree of complexity should be sent to the small claims track [22-23 & 29]. They would, of course, have warranted that they had authority to act on behalf of their client. In neither action do the reclaimers seek to recover their losses on the basis of any negligence or other breach of duty on the part of the respondents. You also have the option to opt-out of these cookies. Whilst there are no notes of evidence available for the purposes of the appeal (the parties to the action had agreed to dispense with the services of a shorthand writer) the essence of Mr Dougans evidence was that by marketing the subjects for a longer period of time a sale price of 175,000 could have been achieved. The instructions to Messrs Mellicks were in similar terms to the instructions given by CMC in the case of Mr and Mrs Cheetham. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. 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". Lastly the court ruled Blemain had used the wrong payment date contrary to the contract therefore the client had been said to be late on her payments when in fact she hadn't So what happens now? The result is that my client has the opportunity to recover thousands of pounds in legal costs rather than being limited to fixed legal costs of 100. [2] After proof, the sheriff found the defenders liable to the pursuer in the sum of 10,000 together with expenses as taxed. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. 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. 1 March 2010, ought to be deemed eliminated by the fact that the pursuer had not been called upon to pay interest (albeit, no doubt, at a differential, pactional rate) applying to the outstanding mortgage balance from 1 March 2010 onwards. 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. 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. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. (See paragraph[18] in Wilson). [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. He confirmed that they had requisitioned copies of the prior title deeds. We consider it more appropriate in such discussions to talk of attributes of clients rather than the identity of a client. It is frequently said to be narrow in its scope. [9] On 24 November a formal mortgage offer was issued by CMC.
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