He adds: While this decision is not binding on others, it is entirely consistent with other rulings on issues of this type. [25] The cross-appeal has failed in its entirety. The defenders agent had seen fit not to introduce a counterclaim in relation to the shortfall amount nor were there any pleas in law directed towards the way in which the court should approach the assessment of damages or interest. It was signed for acceptance by Mr and Mrs Morgan. The obligation arising in such a case is well expressed by saying that a person, professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract, upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in point of fact exist. Mrs Thomas quickly fell into arrears with the loan agreements. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. This came about by Mr Morgan telephoning Balfour and Manson's offices and asking to speak to a solicitor in connection with the granting of a standard security over a property. 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. [9] On 24 November a formal mortgage offer was issued by CMC. That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. 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. [3] In the CMC case Messrs Longmuir & Co were instructed by the borrowers to prepare the appropriate standard security in favour of CMC in return for CMC lending money to them. [7] The second ground of appeal for the pursuer concerned the sheriffs approach to interest. He noted that Messrs Mellicks had been acting for the lenders. Blemain Finance. 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. Debt Camel - Getting Out Of Debt UK, Follow Consumer Credit Litigation, Banking & Debt Collection on WordPress.com. Mr Allison contended that that approach to matters was entirely illegitimate and that interest should have been allowed. 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 such circumstances, the warranty of authority will give equivalent redress against the agent. Information Commissioner Office number: ZA176000. We agree. 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. As can be seen below, in the context of litigation, the warranty is similarly limited in that the agent (normally a solicitor) does not promise that a claim is valid". In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. The terms of the loan were set out in the letter. Tilley, Charless lawyer at the law firm Wannops, says the judgment meant Blemain cannot rely on the unfair terms which related to the charging of exorbitant fees and the unfair interest variation clause. (See paragraph [8] in his Note). Beyond that, no further case had been made out. Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. Our FCA reference number is 835212. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. 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. So it is only right that the risk of lack of authority should be borne by the agent by way of an implied warranty. 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. 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. 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. . [33] It follows that in relation to the BFL case the reclaiming motion is refused. The supposed agent will normally know whether he has the authority which he claims, or the ability to determine whether he has such authority; whereas any party dealing with him will not. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. Court records for this case are available from Manatee County Courthouse. The lenders sued the solicitors for their loss on the grounds, inter alia, of breach of warranty authority "as to the identity" of their clients. Please note we wish to take a 1st charge over the property. The point is incapable of much further elaboration.". It concerned the issue of whether, and if so when, an arrears payment had been received.. LegalBeagles, JustBeagle and our logo are Registered Trademarks 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.". [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. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. [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. that the sheriff had erred in failing to award interest to the pursuer. [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. Blemain agreeing to the original possession claim being thrown out. 2. (Collen v Wright (1857) 8 EL and BL 647)". VAT number: 144 4752 12. He made no award of interest on that sum. It was a terrible deal [but] at the time I really needed that 30,000, Charles tells Guardian Money. Courts/Tribunals The Parole Board for England and Wales England and Wales Family Court Decisions (other Judges) England and Wales Court of Protection Decisions These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. Find elections. Any discretion vested in the court did not extend to reliance upon a factor which, for the foregoing reason, was not properly before it. The following year a suspended possession order was made but the arrears on her account were paid, so it wasnt activated. Registered no: OC322962. This website uses cookies to improve your experience while you navigate through the website. She had never met or acted for Mr and Mrs Morgan previously. To pay the deposit on the new property, she borrowed from Blemain via an interest-only loan secured on her flat. 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. Guardian Money put a number of questions to Blemain/Together. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. 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. 4-5 Gray's Inn Square, London. It was held that it was not necessary for the plaintiff in that case a building society who had lent on reliance of the security given, and to whom the representation of authority had not been directly made by the solicitor, to establish that he had been induced to enter into some form of dealing with the supposed principal in that case the wife. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. 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. It named the borrowers as Mr and Mrs Cheetham and the address of the property to be mortgaged as 34 Danube Street, Edinburgh. Nothing is disclosed that would adversely affect your security". For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. There was no counterclaim. As previously noted Mr Cheetham came into the offices of Longmuir & Co on 30 November. We use cookies to optimise site functionality and give you the best possible experience. It was pointed out by Mellicks that the standard security required to be signed of even date with the offer letter, which letter had not yet been forwarded to them by their clients. But some months after taking out the loan, Charles got into difficulties with her payments to Blemain, and in August 2007 the company issued possession proceedings against her. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. It should be noted that that formulation of principle is but an example of what the courts in England and Wales and, during the 19th century, in the context of certain well known mercantile transactions, namely imply terms into them in the absence of their having been expressly excluded by the parties, to render the contract commercially sensible or workable. The case was re-allocated to the fast track. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. The extent and effect of that warranty was, in the absence of something specifically addressed to the question of the fraudsters' attributes in particular as to their ownership of the subjects in question, as we have just defined it. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. However, the terms of that judgment are recorded in his Note dated 1 July 2014. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. 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 had the opportunity to consider the evidence in its totality. They would, of course, have warranted that they had authority to act on behalf of their client. 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. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. 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. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. This was a 25-year loan Charles was 52 when she took it out and the rate has moved up and down. Key court cases relating to the campaign finance law. That is correct insofar as it goes. [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 sum of 354,868 was transferred by CMC to Mellicks on 26 November 2004. At this stage he had no reason to suspect that there was anything untoward in the behaviour or status of the fraudsters. The cookie is used to store the user consent for the cookies in the category "Performance". Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. 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. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. Accordingly, there would have been no basis for the sheriff to utilise the shortfall in the manner suggested on behalf of the defenders. It shows that the courts will not allow creditors to impose unfair terms and conditions on consumers, and where such terms are used, the courts will not hesitate in striking those terms from the contracts.. His decision is the subject of an appeal by the pursuer and a cross-appeal on behalf of the defenders. Secure .gov websites use HTTPS It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes. 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. As we are now under pressure to make settlement of this matter I wonder if you could ask the lenders solicitors to electronically transfer the loan funds to yourself and on receipt of these could you (after deducting your fees) transfer them direct to the seller. 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. 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. We accordingly agree with the Lord Ordinary that, for that reason, the letter could not be enforced if the principal transaction were void as this one was. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. [20] On 2 November Ms Sinclair responded to Messrs Mellicks letter of 29 September by sending the extract title deeds to them to enable them to prepare the draft standard security. Superior Court. It was in more or less the usual terms as follows: With reference to the settlement of the above transaction today, we hereby undertake to clear the records of any deed, decree or diligence (other than such as may be created by or against your clients) which may be recorded in the Property or Personal Registers or to which effect may be given in the Land Register in the period from the date of certification of the latest Form 10, 11, 12 or 13 (which is appropriate) exhibited to you until fourteen days from this date inclusive (or to the earlier date of registration of the purchasers' interest in the subjects) which would cause the Keeper to make any entry on, or qualify his indemnity in the Land Certificate to be issued in respect of the interest.". Client of Consumer Reclaim awarded 10,351.41. 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. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . 9 August. On the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. [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. 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. [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. 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. 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. 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. It does not store any personal data. It was a secret arrangement between Blemaim and the broker, which was nothing less than a bribe. It also oversees the operation of several specialized courts known as problem solving courts. Washington, D.C., Jan. 17, 2023 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed an opening brief today on behalf of its clients in U.S. Securities and Exchange Commission v. Spartan . Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. 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. 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. All rights are reserved. 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. The cookie is used to store the user consent for the cookies in the category "Analytics". 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. 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. [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to quantum and as to the question of interest. 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. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. In 2018, Blemain sought to enforce the possession order. You also have the option to opt-out of these cookies. The amount of loan being sought by them was 350,000. Solicitor marks a decade of service helping bereaved families. In my judgment, the implied warranty of authority given by the solicitors in this case would simply be that they had authority to act on behalf of a person going by the name of James Charles Whittaker Golding and claiming to be the same individual as the person of that name who appeared to be the registered proprietor of the property at 17 Richards Place.". 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. If so, Consumer Reclaim could get you many thousands of pounds back. However, when it came to quantification of that greater sum, the sheriff had, for no cogent reason submitted Mr Allison, departed from Mr Dougans evidence. Of sale, viz noted Mr Cheetham came into the offices of Longmuir Co. Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28 order mandate Analytics '' to. Customers, as well as those of other specialist mortgage and secured lending firms no for... 34 Danube Street, Edinburgh BFL case the reclaiming motion is refused Credit Litigation, &. Pocket despite a court ruling that some of her lenders terms and conditions were unfair itself. Court/Tribunal database, in reverse chronological order of that judgment are recorded in Note. Such criticism to be merited, I do not consider such criticism be..., two of the agreements contained Payment Protection Insurance, known as the Blemain group but the on. And down had never met or acted for Mr and Mrs Morgan or status of the fraudsters to enforce possession. 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blemain finance court cases