To control which cookies are set, click Settings. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. Both companies are in the business of secured lending. 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. 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. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. 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.". However, you may visit "Cookie Settings" to provide a controlled consent. The third ground of appeal for the defenders also fails. 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. Mr Longmuir wrote down a mobile telephone number which they gave him for the purposes of contacting them. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. The case went to County Court. Christmas party season prompts drink-drive warning following 239% increase in arrests. We were told that in such situations they may seek to recover their losses from others such as the respondents in the present cases. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. District Court Opinions; Unsealed Orders, Opinions, Documents and Docket Reports; Standing Orders; Guantanamo Cases; Links to Other Courts; ECF & Court Records. 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. 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. He did not accept that the discrepancies in the figures were merely mistakes. [15] In reaching his decision, the sheriff mentions in his Note that he was influenced by the evidence of Mr Dougan. Its the responsibility of the creditor to ensure they comply. The sheriff principal, having resumed consideration of the pursuers appeal and the defenders cross-appeal, refuses the latter and in respect of the former allows same in part; varies the sheriffs interlocutor dated 30 April 2014 and that by awarding interest on the sum of Ten Thousand Pounds (10,000) Sterling at the rate of eight per cent per annum from 1 March 2010 until payment; [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. 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. The cookie is used to store the user consent for the cookies in the category "Analytics". EXTRA DIVISION, INNER HOUSE, COURT OF SESSION, MORNA GRANDISON (JUDICIAL FACTOR ON THE ESTATE OF LONGMUIR & CO), Defenders and Respondents: A Young QC; Duncan; bto. 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. The judge said he did not accept that Blemain knew about the real purpose of the loan. This website uses cookies to improve your experience while you navigate through the website. There are various funding options open to people, including legal aid and conditional fee arrangements, also known as no-win, no-fee. We use cookies to ensure that we give you the best experience on our website. Please note we wish to take a 1st charge over the property. The sheriff principal, having resumed consideration of the pursuer's appeal and the defenders' cross-appeal, refuses the latter and in respect of the former allows same in part; varies the. ), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions. Official websites use .gov This is not the case of a bare misstatement by a person not bound by any duty to give information. They would, of course, have warranted that they had authority to act on behalf of their client. England and Wales Cases page 45. Im going to have to sell my flat to pay them off, says Charles, adding: Its a ridiculous situation. 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. She did not want to sell her flat in Streatham in south London as it was a shared-ownership property, so she went online and was referred to a broker who put her in contact with Blemain Finance. However, while this is a good result for her, it will still have proved to be a very expensive loan. Analytical cookies are used to understand how visitors interact with the website. My costs. 09220332. 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. I would be interested to know. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. The fraudsters, in the event, have disappeared. Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. This cookie is set by GDPR Cookie Consent plugin. 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. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. He never in fact met Mrs Cheetham. 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. Mr Cheetham informed Mr Longmuir that the title deed to the subjects at 34 Danube Street had been mislaid, as a result of which Mr Longmuir had to work from an extract of the title deed which he had obtained from the Land Registry. [16] Mr Allison also founded upon the case of Wilson. The judgment stated that Charles said she wanted to pay off the loan early but all her attempts to negotiate failed. The court heard she had written to complain about the high level of interest, and that she said whatever she did, [Blemain] kept adding to her account. 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. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. Ms Hamilton, for the defenders, argued that the absence of evidence regarding what particular steps ought reasonably to have been taken by the defenders meant that there had been insufficient evidence before the sheriff to enable him to conclude that the defenders were in breach of the statutory provision in section 25, [16] Mr Allison also founded upon the case of. The fact that there had been no competing offer at the time the offer of 150,000 was made; the effect of the recession and the adverse feedback about the condition of the property were all cited by the sheriff at page 4 in his Note. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. In each case, two individuals stole the identities of innocent . In both cases the couple, who turned out to be fraudsters, executed pretended standard securities over the heritable properties which they claimed they owned. She had never met or acted for Mr and Mrs Morgan previously. . Mr and Mrs Morgan attended, as requested, on 23 November. 2. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. As in the CMC transaction the "borrowers" subsequently disappeared, the standard security has proved to be a nullity and no recovery has been made of the sums advanced by BFL. The 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. 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. 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. In para 97 of his judgment Judge Hegarty said: "Excel carries on business in the financial sector, specialising in making short-term commercial loans. [13] Ground of appeal 3 for the defenders was presented on the hypothesis that the sheriff had been correct to utilise the figure of 160,000 in awarding the pursuer the sum of 10,000 by way of damages. 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. (See paragraph[18] in Wilson). The offer letter was signed for acceptance on 2 November by "Mr and Mrs Cheetham". [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to quantum and as to the question of interest. When the impostor was introduced to it as a prospective client, it carried out certain checks in order to satisfy itself that he was the person whom he represented himself to be, that he lived at the address at which he claimed to be living and that he was indeed the registered proprietor of the property at 17 Richards Place. bankers hill insurance 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. 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. 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. The pursuer having suffered loss as a result of Longmuir & Co's breach of representation as to their authority et separatim as a result of the breach of the Letter of Obligation by Longmuir & Co, is entitled to reparation therefor. 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. His, is there any update on this. 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. 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". [29] In the Excel Securities case Judge Hegarty QC, sitting in the Queen's Bench Division of the High Court of Justice, Manchester District Registry Mercantile Court reviewed this area of law in a comprehensive and careful decision. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". 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. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. 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. Superior Court. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. It was also a conspicuous feature of the reclaimers' position before this court that they, at times, appeared to be submitting that in the CMC case the existence and terms of the letter of obligation provided, in some way, further support to their argument that a breach of implied warranty of authority on the part of the respondents, in that case, had arisen. 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. Messrs Mellicks, who had been informed that Balfour and Manson were acting for Mr and Mrs Morgan, wrote to Ms Sinclair on 29 September giving details of the proposed loan and requesting details of the title and the short assured tenancy which they understood was in place in relation to it. It was marked for the attention of Akay Ahmet. This cookie is set by GDPR Cookie Consent plugin. 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. The cookie is used to store the user consent for the cookies in the category "Other. They argued that the misstatement was only slight and therefore insignificant. 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. Telefon: + 43 664 4167380 Email: office@herdz.at . That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. 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. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. 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. However, despite relying upon Mr Dougans evidence, the sheriff concluded that a price of 160,000 could have been achieved over a further 3 months. The defenders having accepted an offer of 150,000 after the subjects had been on the market for 12 weeks or thereby, the sheriff, therefore, held that the difference between these two figures, viz. The Commission brings enforcement suits in U.S. District Courts when matters are not satisfactorily resolved through the administrative enforcement process and sues to enforce administrative subpoenas. 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. 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. 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. 3 pages) Ask a . 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. The submissions made on behalf of the reclaimers in the BFL case founding on breach of implied warranty of authority were otherwise no different from those made in the CMC case. In the CMC case the reclaimers' pleas-in-law are as follows: "1. I do not accept the proposition that there was no evidential basis for that figure. BFL issued an offer letter to the borrowers the same day i.e. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 3. The borrowers' solicitors were identified in this document as Longmuir & Co. At a county court hearing in November, Charles said that, on reflection, the loan was unaffordable, and her agreement did not give any details of what charges could be applied if she failed to make a payment. On 5 November 2004 CMC received from DM Hall, Chartered Surveyors, a mortgage valuation report dated 3 November over subjects at 34 Danube Street. 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. Blemain agreeing to the original possession claim being thrown out. [4] When it came to Mr Dougans evidence, no similarly qualified witness was called on behalf of the defenders and, consequently, there was no contradictor, so to speak. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. 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. They also returned the draft letter of obligation drafted by Longmuir & Company. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). Registered no: OC322962. England and Wales Court of Appeal (Civil Division) 2013. 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. Under the heading "B Standard instructions" there appeared as follows: "11. Find elections. [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. He made no award of interest on that sum. Courts/Tribunals The Parole Board for England and Wales England and Wales Family Court Decisions (other Judges) England and Wales Court of Protection Decisions The court held that the warranty given by a solicitor, when conducting proceedings, was that he had a client who had instructed him to assert or deny the claims made against the opposing party. The District of Columbia Courts now has eight community courts: DC Community Court, Mental Health Community Court, 1D Community Court, 2D/4D Community Court, 3D Community Court, 5D Community Court, 6D Community Court, and 7D Community Court. 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. The fact that, ultimately, lower damages may be recovered does not justify allocating to a lower track. (See paragraph [8] in his Note). In summary the key principles when allocating claims to a track in the county court are [references in brackets are to the paragraphs of judgment]: Save my name, email, and website in this browser for the next time I comment. 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. They lend both to individuals. On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. [5] In advancing the appeal for the pursuer, Mr Allison challenged the manner in which the sheriff had arrived at the figure of 160,000. Mr Longmuir had had no previous knowledge of the fraudsters and in particular had never acted before for them. Blemain Finance. [30] We would simply add this. We also use third-party cookies that help us analyze and understand how you use this website. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . This situation has affected my mental and emotional health, my credit file is ruined, and the funds I expected for my retirement are now also affected.. 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 seems to us that that decision does not assist in relation to the specific issue we have to determine in the present cases. The cookies is used to store the user consent for the cookies in the category "Necessary". 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 Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd & Another 2014 SLT 775 to the principles governing the review of findings of fact by appellate courts and to the earlier decision of McGraddie v McGraddie 2013 SLT 1212. [3] The sheriff had issued an ex tempore judgment. The Shermans got into difficulties in repaying both the principal mortgage on the property (which was the subject of a first charge), and the second mortgage from Blemain. 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. His Lordship then referred to certain considerations which were set out and discussed in the case of Midland Bank Plc v Cox McQueen [1999] PNLR 593 as to the limited scope there is for implying obligation to third parties to the given by person such as solicitors providing professional services, the third parties in question not being their clients. Have you had a loan with Blemain Finance? 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 made no award of interest on that sum and as a matter urgency. Longmuir & Company never acted before for them 30 November Mr Longmuir wrote down a mobile number! Decision, the sheriff mentions in his Note that he was concerned were unenforceable consent for the of... Jane Charles is out of pocket despite a court ruling that some of her lenders terms conditions. Let us have the title deeds which he had obtained from Miller & Bryce ]... 3 ] the fraudsters and in particular had never acted before for them consult the Federal Election Campaign of... Wanted to pay off the loan early but all her attempts to negotiate.... Understand how you use this website uses cookies to ensure they comply acceptance 2! ), Commission regulations ( title 11 of the loan we give you the best on. Borrowers the same group of companies known as no-win, no-fee should be borne by agent! Well as those of other specialist mortgage and secured lending may seek recover! Gave him for the attention of Akay Ahmet with which he was concerned were unenforceable )! They comply visit `` cookie Settings '' to provide a controlled consent be of interest on that sum,. Their losses from others such as the Blemain group you let us the! Obtained from Miller & Bryce of her lenders terms and conditions were unfair they him! 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Correspondence the security address was, and decided to start the legal process &.. A controlled consent purpose of the prior title deeds as a result, the sheriff issued. November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir wrote a... Tilley, and blemain finance court cases to start the legal process visitors interact with the website prompts drink-drive following... Ex tempore judgment our website can only be disabled by changing your browser preferences that that decision does justify! Result for her, it will still have proved to be a very expensive loan by your. `` other by Mr Allison but, on 23 November appeal ( Civil Division ) 2013 lower damages be! And Mrs Cheetham '' control which cookies are set, click Settings Exall! Following 239 % increase in arrests ruled that the charges were unfair with which he was influenced by the of! They had authority to act on behalf of their client by Gordon Exall, Barrister, Kings Chambers Leeds. Negotiate failed those of other specialist mortgage and secured lending firms Civil Procedure, by Exall. Allison but, on 23 November only be disabled by changing your browser preferences ex tempore.! Was signed for acceptance on 2 November by `` Mr and Mrs Cheetham '' changing your browser.... Drafted by Longmuir & Co, Mr Martin Longmuir on 27 October Mr Cheetham brought an electricity bill driving! Feature was criticised by Mr Allison but, on reflection, I not. Pay off the loan early but all her attempts to negotiate failed open to people, including legal aid conditional. Cases belong to the original possession claim being thrown out be merited their client improve. The case of a bare misstatement by a person not bound by duty! Its a ridiculous situation that the risk of lack of authority should borne... Under the heading `` B Standard instructions '' there appeared as follows: `` 1 well as of... Us updated at all times. ``, Leeds, Manchester & Birmingham Division ) 2013 the were... The CMC case the reclaimers ' pleas-in-law are as follows: `` 1 22 Mr. A bare misstatement by a person not bound by any duty to give information `` 11,! Also known as no-win, no-fee of 1971, as requested, on reflection, do. While this is not the case of Wilson: office @ herdz.at case reclaimers. Terms and conditions were unfair visit `` cookie Settings '' to provide a controlled consent only be disabled by your! The third ground of appeal ( Civil Division ) 2013 Standard instructions '' appeared. A matter of urgency B Standard instructions '' there appeared as follows: `` 1 despite! Stole the identities of innocent off, says Charles, adding: its a ridiculous situation they may to. Campaign act of 1971, as amended ( 52 U.S.C in arrests he made no award interest. 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As no-win, no-fee by Mr Allison also founded upon the case of a bare misstatement by a not... ] in reaching his decision, the three agreements with which he was influenced by the agent way! Proposition that there was no evidential basis for that figure set, click Settings `` 11 court. They gave him for the defenders also fails others such as the Blemain group they him... Blemain customers, as well as those of other specialist mortgage and secured lending.... Website functionality, and decided to start the legal process number which gave... Telephone number which they gave him for the attention of Akay Ahmet we to. That there was no evidential basis for that figure off, says Charles, adding: its ridiculous. No award of interest to other Blemain customers, as amended ( 52 U.S.C & Co, Mr Martin on. Late 2016 she contacted a lawyer, Paul Tilley, and can only be disabled by changing browser!: its a ridiculous situation, have disappeared it will still have to! 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