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They made an application for a loan on or about 20 October 2004, initially through a broker. 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.". 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. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. She had never met or acted for Mr and Mrs Morgan previously. 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. [38] The Lord Ordinary found support for that view in the opinion of Lord Cameron of Lochbroom in Mason v A & R Robertson & Black 1993 SLT 773, at pp.778G-I and 779I-L. As the Lord Ordinary said at paragraph 74 of his opinion: "The loan transaction, the Standard Security and the letter of obligation are so intermixed that it is difficult to conceive how there could be any obligation on Longmuir & Co under the letter of obligation to produce a title encumbered with a Standard Security which, because of the fraud, was a nullity. Call urgently as time is running out for customers to claim as it can be no longer than 6 years from when you paid your loan off to claim. 2. Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 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. 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. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). [8] Messrs Mellicks Solicitors were instructed to act on behalf of CMC in the loan transaction. At the beginning of December Ms Sinclair arranged for the transfer of the net balance to the account of Elmwood Contracts as instructed by Mr and Mrs Morgan. Under the heading "B Standard instructions" there appeared as follows: "11. Counsel for the reclaimers submitted that the question as to what the nature and extent of the liability was in a particular case was a fact sensitive issue. Having regard to the circumstances of the present case it is, in our opinion, of some significant interest to have regard to what is said shortly after in the passage just cited: "But where a plumber had done work on the instructions of an agent who, as it turned out, had no authority, but the principal named was a company which was insolvent and had no assets, it was held that as the obligation of the company was valueless, the plumber had lost nothing by the want of it, and therefore could recover no damages from the agent for breach of his implied warranty. The Circuit Judge held that the District Judge had erred in failing to consider fully the value being claimed. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. [21] The rest of the transaction appeared to proceed in a straightforward and routine manner. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. In determining that no interest should be awarded in respect of the sum decerned for, the sheriff had relied upon the fact that the sums owed to the defenders had been paid off but subject to a shortfall of 10,645.31. Telefon: + 43 664 4167380 Email: office@herdz.at . In particular there is nothing in principle in the law of contract to prevent an agent from guaranteeing to a third party that he has a principal who is the same person as appears on property registers, for example, as the owner of a specific property. 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 . All information will be held in accordance with data protection requirements. That is correct insofar as it goes. [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. Third-Party cookies are set by our partners and help us to improve your experience of the website. 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. If the principal proves unreliable, that is something in respect of which the third party could have made inquiries. 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.". 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. 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. Mr Morgan explained that they were not currently living at 3 Mentieth View which was presently let. The Criminal Division is administratively divided into four branches: Case Management, Special Proceedings, Quality Assurance, and Courtroom Support. He noted that Messrs Mellicks had been acting for the lenders. Well we don't know if Blemain will appeal. 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. FCA number is 719121. District Court Opinions; Unsealed Orders, Opinions, Documents and Docket Reports; Standing Orders; Guantanamo Cases; Links to Other Courts; ECF & Court Records. 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. These cookies will be stored in your browser only with your consent. Mr Longmuir had had no previous knowledge of the fraudsters and in particular had never acted before for them. Superior Court. Consumer Reclaim is a claims management company which specialises in consumer mis-selling of goods, services and insurance.We are regulated by the Financial Conduct Authority. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. Active litigation involving the FEC. England and Wales Court of Appeal (Civil Division) 2013. 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. 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. This website uses cookies to improve your experience while you navigate through the website. As already indicated Scots and English law reach the same result in such questions albeit, perhaps, on occasions using different terminology or concepts. Together Personal Finance Limited is a member of the FLA. 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). It was submitted, in line with the pursuers first ground of appeal, that there was no evidential basis to justify the selection of that particular sum. 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. It was a term of the mortgage offer that the loan be secured by a first mortgage over the property in the form of the draft standard security accompanying the offer. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. He made no award of interest on that sum. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. 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. 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. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. 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. 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. The website legalbeagles.info is owned and operated by LegalBeagles Group Ltd registered No. For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. 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. An official website of the United States government. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. This was a 25-year loan Charles was 52 when she took it out and the rate has moved up and down. The defenders pleadings had been drawn up in such a way as to place in issue the existence of any statutory breach of duty under section 25 supra. 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. [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. Anyone contracting with such an agent must look to the principal for any redress to which he is entitled as matter of contract. The Particulars of Claim estimated the claim to be up to 21,325.67. Each agreement was out by a few pounds and pence.. You can learn more detailed information in our Privacy Policy. 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. Court Procedure. Secure .gov websites use HTTPS 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 purpose of the loan was said "to assist the purchase of overseas property". 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. 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. She required both Mr and Mrs Morgan to attend Balfour and Manson's offices for the purposes of showing identification documents in the form of a passport or driving licence and a utility bill confirming their address. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. 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. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. The court also heard that her application form said the loan was for home improvements, capitalisation, not for a house deposit. (It should be stressed that the fact that the assessment of damages was at large for the sheriff was not the subject of any challenge by the pursuer having regard to the state of the defenders pleadings). 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. Necessary cookies are absolutely essential for the website to function properly. However, that particular error was not relied upon by the defenders as a defence to the claim for failure to implement the letter. 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. 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. Client of Consumer Reclaim awarded 10,351.41. He further emphasised that the starting consideration for allocation should be the pleaded value of the claim. 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. We will take into account the relevant aspects of the decision specific to this case as we work with all parties to progress this matter.. [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. 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. However, you may visit "Cookie Settings" to provide a controlled consent. Legal - General; Statutes and . CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. 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. The saga began in 2006, when Charles and her husband were looking to buy a house in Epsom, Surrey. This cookie is set by GDPR Cookie Consent plugin. 711. Registration is recorded at: https://register.fca.org.uk. Courts/Tribunals The Parole Board for England and Wales England and Wales Family Court Decisions (other Judges) England and Wales Court of Protection Decisions Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. 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 case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. 30101 et seq. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. 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. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. 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 opting out of some of these cookies may affect your browsing experience. 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. I was also referred to the decision of Judge Hegarty Q.C., in the Mercantile Court in Manchester, in the case of Excel . Do you want to send me a private message with a little more detail on the background issue? On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. I do not consider that they gave any implied warranty going beyond this". He never in fact met Mrs Cheetham. The instructions to Messrs Mellicks were in similar terms to the instructions given by CMC in the case of Mr and Mrs Cheetham. We have had sight of the necessary Searches in respect of the properties. 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. All times are GMT. [34] The pursuers' contention is that the letter of obligation constituted a personal obligation assumed by the solicitors to deliver a land certificate issued by the Keeper of the Land Register of Scotland in favour of their clients as registered proprietors of the above subjects, which disclosed no entry, deed or diligence prejudicial to the pursuers' interest and disclosed the standard security granted in favour of the pursuers. On 1 November, the day before signing the acceptance of the offer letter, the fraudsters, again representing themselves as Mr and Mrs Cheetham, wrote to CMC on writing paper headed with the address 34 Danube Street, Edinburgh to confirm that the monthly payments in the respect of the loan were affordable by them. [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. 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. Please revert this information back to us.". Click here for a full list of Google Analytics cookies used on this site. 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. [15] In this case the borrowers were fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Margo Clark Morgan. 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. Its the responsibility of the creditor to ensure they comply. He also seemed to have placed weight upon the fact that the figure of 160,000 equated to the figure specified in a Market Appraisal dated 13 August 2009 prepared on behalf of Aberdein Considine. The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). We use cookies to optimise site functionality and give you the best possible experience. 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. 1050 First Street, NE It was a terrible deal [but] at the time I really needed that 30,000, Charles tells Guardian Money. Stephensons Solicitors LLP is a limited liability partnership. Cheshire Mortgage Corporation Limited (CMC) and Blemain Finance Limited (Blemain) were both victims of separate mortgage frauds. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. 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 addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. 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. Unauthorised use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. We accept that a warranty may be given by a solicitor, or other agent, expressly to a third party as to a particular attribute or attributes of the solicitor's or agent's client. 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. 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. [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. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. [16] Mr Allison also founded upon the case of Wilson. 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.. [22] At all odds, I have given effect to the proposition that the sheriff ought to have awarded interest in favour of the pursuer principally for the reasons set out in her second ground of appeal. The frauds perpetrated upon them as a result of fraudsters, each of the reclaimers involved two different pairs of individuals applying for a loan, pretending to be husband and wife who were owners of heritable property which was to institute the security for the loans. 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]. 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. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. 3. 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. 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". Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. Powered by vBulletin Version 5.3.4 Copyright 2023 vBulletin Solutions, Inc. All rights reserved. Official websites use .gov Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. We consider it more appropriate in such discussions to talk of attributes of clients rather than the identity of a client. 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. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. They would, of course, have warranted that they had authority to act on behalf of their client. 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.

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