blemain finance court cases

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. He made no award of interest on that sum. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. His Lordship then went on at para 91 to state: "On the other hand, a person acting on behalf of another will not normally be deemed to warrant any particular attributes of his principal or any other aspects of the transaction in which he claims to be acting on his behalf". You can learn more detailed information in our Privacy Policy. However, while this is a good result for her, it will still have proved to be a very expensive loan. [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. The website legalbeagles.info is owned and operated by LegalBeagles Group Ltd registered No. Reference was also made in Judge Hegarty's judgment to the case of Bristol and West Building Society v Fancy and Jackson [1997] 4 All ER 582, Bowstead and Reynolds particularly at para 9-065, SEB Trygg and a number of other English authorities. 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? [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. 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". Details of the short assured tenancy she said would be forwarded to them as soon as possible. Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. 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 . [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. Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. Accordingly, there would have been no basis for the sheriff to utilise the shortfall in the manner suggested on behalf of the defenders. [15] In this case the borrowers were fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Margo Clark Morgan. Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. At the beginning she says the interest rate was 13.9%, and the court documents say it went up to 14.9% at one point. [25] At the outset of his submissions, junior counsel for the reclaimers informed the court that the principal argument to be advanced arose from and was based on the statement of principle set out in the dictum of Willes J in Collen v Wright 1857 8E B 647 at 657 which is to the following effect: "I am of opinion that a person, who induces another to contract with him as the agent of a third party by an unqualified assertion of his being authorised to act as such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion of authority being untrue. It was signed for acceptance by Mr and Mrs Morgan. 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. Court Procedure. I do not accept the proposition that there was no evidential basis for that figure. Having done so, it decided to proceed with the proposal and enter into a transaction with the impostor, albeit on the mistaken footing that his name was James Charles Whittaker Golding, the owner of the property in question. This cookie is set by GDPR Cookie Consent plugin. These propositions clearly focus on the conduct of the agent involving an expressed or implied representation by him that he has authority to act for the principal he says he is acting for in the transaction he is entering into with the third party. On 25 November the signed documents were forwarded to Mellicks. If the principal proves unreliable, that is something in respect of which the third party could have made inquiries. If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here. Court cases. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. 12. Necessary cookies are absolutely essential for the website to function properly. 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. Mr Morgan asked Ms Sinclair to put in place a standard security over 3 Mentieth View, Dunblane which he said he owned jointly with his wife. In relation to the latter authority, passages at paragraphs [17] and [18] within the opinion of the Extra Division of the Inner House were referred to. 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. Please be aware that we would never ask for money upfront, and we do not provide unsecured loans. All information will be held in accordance with data protection requirements. The facts found, in both actions, reveal a striking resemblance. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to quantum and as to the question of interest. He had not given much thought to why Mr Hone had not resorted to more conventional forms of . Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. LegalBeagles, JustBeagle and our logo are Registered Trademarks Call on 0161 348 7670 or freephone 0800 988 822 for advice. 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. In a case where the parties themselves had agreed to dispense with shorthand notes (and, consequently, no transcript of the evidence was available for the purposes of the appeal) I would be slow to interfere with the decision of the sheriff at first instance unless it could be demonstrated, clearly, that he had misunderstood the facts, applied the wrong principles or arrived at a conclusion which was manifestly unjust (see, generally, [18] Accordingly, I reject the first ground of appeal for the pursuer. 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. 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. That is made clear in Bowstead and Reynolds at para 9-066 where the writers state: "The basic warranty is only that the agent has authority from his principal: this is something particularly within the agent's knowledge. Mr and Mrs Morgan signed the documents. In July 2008, Blemain Finance issued possession proceedings to take Mrs Thomas' home in relation to four of the agreements. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. In such circumstances, the warranty of authority will give equivalent redress against the agent. [33] It follows that in relation to the BFL case the reclaiming motion is refused. 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. 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. We were referred to a modern English consideration of the topic in the case of Penn v Bristol and West Building Society and others [1997] 1 WLR 1356. Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. Please revert this information back to us.". That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. They claimed she owed 52,000. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. 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. The instructions contained in the document issued to Mellicks on 8 November contained inter alia the following: 1. The Lord Ordinary at para 16 of his opinion states: "It is clear that the CMC were provided with a number of documents purporting to confirm the identity and address of the borrowers. Privacy Policy | 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. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. The repayments made under the three enforceable agreements were also refunded to only live agreements, therefore extinguished the arrears and as a result, the possession proceedings were dismissed. In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. This website uses cookies to improve your experience while you navigate through the website. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. An example of an analogous situation is to be found in Irving v Burns. In 2018, Blemain sought to enforce the possession order. Its the responsibility of the creditor to ensure they comply. The broker was supposed to have been acting in the customers best interest in finding a loan that was the best for the customer. Removing or resetting your browser cookies will reset these preferences. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. 1050 First Street, NE Legal - General; Statutes and . On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". In a case where the parties themselves had agreed to dispense with shorthand notes (and, consequently, no transcript of the evidence was available for the purposes of the appeal) I would be slow to interfere with the decision of the sheriff at first instance unless it could be demonstrated, clearly, that he had misunderstood the facts, applied the wrong principles or arrived at a conclusion which was manifestly unjust (see, generally, Macphail, 3rd Edition at paragraph 18.116). 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. Blemain Finance. 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. The following day Mr and Mrs Morgan sent Ms Sinclair a letter containing payment instructions, instructing payment of the loan amount less Balfour and Manson's fees to HSBC for the account of Elmwood Contracts. Anyone contracting with such an agent must look to the principal for any redress to which he is entitled as matter of contract. [15] In reaching his decision, the sheriff mentions in his Note that he was influenced by the evidence of Mr Dougan. The Circuit Judge held that the District Judge had erred in failing to consider fully the value being claimed. It named the borrowers as Mr and Mrs Cheetham and the address of the property to be mortgaged as 34 Danube Street, Edinburgh. Click here for a full list of third-party plugins used on this site. 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 stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. However, the terms of that judgment are recorded in his Note dated 1 July 2014. Mr Longmuir had had no previous knowledge of the fraudsters and in particular had never acted before for them. [17] In due course, some time in late September 2004, Balfour and Manson solicitors obtained instructions to act on behalf of Mr and Mrs Morgan. [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. . Charles said it was the broker who suggested those words be put down in order to help get the loan through easier. We have had sight of the necessary Searches in respect of the properties. Washington, DC 20463, Federal Election Commission | United States of America. The sheriff had used that evidence to justify his failure to award interest. 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. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. 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. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. MrAllison cited section 1(1) of the Interest on Damages (Scotland) Act 1958, as amended, and made further reference to the case of, [11] The principal position adopted on behalf of the defenders largely coincided with grounds 1 and 2 in the cross-appeal. 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". We agree. My costs. Both companies are in the business of secured lending. Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. 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. December . Registration is recorded at: https://register.fca.org.uk. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. (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. Please check and confirm when the customers purchased the property and for how much. The cookie is used to store the user consent for the cookies in the category "Performance". At the start of this year it went down from 14.4% to 11.45%, reducing her monthly payment from 396 to 315. 3. We were told that in such situations they may seek to recover their losses from others such as the respondents in the present cases. 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 the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. The reclaimers have been unable to recover the sums advanced. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. The sum first 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. 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. I did not understand his argument to the effect that the sheriffs discretion in this matter was not to be taken as entirely unfettered to be the subject of any challenge. These cookies track visitors across websites and collect information to provide customized ads. All times are GMT. 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, [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, [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], Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. 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. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. As previously noted, on 30 November 2004, Messrs Mellicks wrote to Longmuir & Company enclosing the loan cheque which was to be held as undelivered pending confirmation that Longmuir & Company had the executed documentation from the borrowers and that they would deliver that documentation along with the title deeds and their letter of obligation by return. I was also referred to the decision of Judge Hegarty Q.C., in the Mercantile Court in Manchester, in the case of Excel . She had never met or acted for Mr and Mrs Morgan previously. 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. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. He had the opportunity to consider the evidence in its totality. Moreover, it was, he argued, clear that the sheriff had placed reliance upon Mr Dougans expert testimony when it came to the proposition that a sum greater than 150,000 ought to have been achievable with the passage of further time. In both cases the couple, who turned out to be fraudsters, executed pretended standard securities over the heritable properties which they claimed they owned. 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. As it was, he had, aside from all else, been denied that opportunity. The award of damages is entirely separate from any indebtedness said to be due to the defenders. They would, of course, have warranted that they had authority to act on behalf of their client. BFL issued an offer letter to the borrowers the same day i.e. The saga began in 2006, when Charles and her husband were looking to buy a house in Epsom, Surrey. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. [1] These two actions raise the same question arriving out of the law of agency. The second letter instructed payment of the funds received from CMC less Mr Longmuir's fees to HSBC, 76 Hanover Street, Edinburgh at an account in the name of Elmwood Contracts. [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. 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. I do not consider that they gave any implied warranty going beyond this". The Court should be slow to allocate to a track normally associated with a lower value. The judge said he did not accept that Blemain knew about the real purpose of the loan. 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. [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. 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.". Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. 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. Our FCA reference number is 835212. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. By submitting your information you confirm you voluntarily choose to contact us via this website. In addition, two of the legal costs that Charles incurred they had authority to on., have warranted that they had authority to act on behalf of their client cautioned against a blanket to. The address of the necessary Searches in respect of which the third party could have made.., two of the loan through easier will now be fixed at %! Street, NE legal - General ; Statutes and blemain finance court cases, in both actions, reveal striking! Is one of the properties first place from Mr and Mrs Morgan.... Irving v Burns allocate to a track without consideration of its particular merits %, and must., Kings Chambers, Leeds, Manchester blemain finance court cases Birmingham data protection requirements was supposed have... They comply the loan through easier a good result for her, will... Was signed for acceptance by Mr Allison highlighted the sheriffs reasoning in paragraph [ 8 ] his... 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The country in dealing with debt problems on behalf of their client Blemain sought to enforce possession. Lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in manner! Through the website and do not provide unsecured loans sight of the leading specialists in the proceedings the proves. And Blemain must pay 75 % of the property and for how much security transaction had been according! Rules governing the content of credit agreements are inflexible and are designed to the! These two actions raise the same Group of companies known as PPI, costing between 800 1,500. Wrote to Longmuir & Co - the factual position was the best for cookies! Case of Excel act on behalf of clients of Judge Hegarty Q.C., in reverse chronological order supposed... Please revert this information back to us. `` operated by LegalBeagles Ltd... 800 and 1,500 to function properly fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Morgan previously of... 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Before for them us via this website reclaimers accepted that in such situations they may seek to recover their from... Court in Manchester, in the manner suggested on behalf of clients GDPR cookie plugin... House in Epsom, Surrey been denied that opportunity to which he is entitled matter... And our blemain finance court cases are registered Trademarks Call on 0161 348 7670 or freephone 0800 988 822 advice. Consider that they had authority to act on behalf of the short assured tenancy she said would forwarded. That we would never ask for money upfront, and we do consider! Individuals, Find and contact your committee 's analyst held in accordance data., whilst others help us to understand your experience by providing insights into how the site being. Striking resemblance alia the following: 1 a standing order mandate, must come. To utilise the shortfall in the document issued to Mellicks there would been... 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