[11] The principal position adopted on behalf of the defenders largely coincided with grounds 1 and 2 in the cross-appeal. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. 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. [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. 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]. 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.". If so, Consumer Reclaim could get you many thousands of pounds back. 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. When applying CPR 26.8(1)(c), if a case has sufficient legal complexity such that a litigant in person could not reasonably conduct the trial, it is unlikely to be appropriate for the small claims track. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. These instructions were set out more fully in two letters of 30 November which Mr Cheetham left with Mr Longmuir's secretary in an envelope for passing to Mr Longmuir. In the absence of such circumstances the extent of the warranty which arises by implication of law is as described in Bowstead and Reynolds. 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. 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. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". 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. 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. His decision is the subject of an appeal by the pursuer and a cross-appeal on behalf of the defenders. 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. 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. 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. But the judgment did not back her on everything: it said that while Blemain failed to carry out checks regarding how the loan was to be funded in retirement, in breach of official guidance at the time, that does not automatically render the relationship unfair. [13] On 26 November Messrs Mellicks wrote to Longmuir & Co enclosing the formal offer of loan together with the acceptance form which required to be signed and returned to them along with the standard security document and the standing order mandate. 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. In the common case, where the principal refuses to accept liability, the right of action against the agent for breach of his warranty will be an effective substitute for the loss of any right of action against the principal". 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. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. . We confirm that they are in order. 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.". The broker was supposed to have been acting in the customers best interest in finding a loan that was the best for the customer. 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. 30101 et seq. 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. Although it is not in the "classic" form, the letter bears all the hallmarks of a letter of obligation, long recognised as an obligation ancillary to that of the solicitor's client, designed to provide protection to, in this case, lenders during the gap period between settlement of the transaction and the recording of the lenders' interest. [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. 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. BLEMAIN FINANCE LIMITED Company number 01185052 Follow this company File for this company Overview Filing history People Charges More Registered office address Lake View, Lakeside, Cheadle,. [25] The cross-appeal has failed in its entirety. [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. 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". The reclaimers' sole complaint was that the borrowers, having turned out not to be the owners of the subjects over which the reclaimers wished to have security for their lendings the respondents were in breach of their respective implied warranty of authority. On 26 November Messrs Mellicks confirmed receipt of the documents including the standard security and confirmed that the funds had been transferred to Balfour and Manson. 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. 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. At page 1361 Waller LJ giving the judgment of the court cited the following from Chitty on Contracts: Specific contracts, 27 ed (1994), Vol 2 page 61, para 31-093: "One who expressly or impliedly warrants that he has the authority of another is liable in contract for breach of warranty of authority to any person to whom the warranty is made and who suffers damage by acting in the faith of it, if in fact he had no such authority. The fraudsters, in the event, have disappeared. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. 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. An example of an analogous situation is to be found in Irving v Burns. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. Blemain agreeing to the original possession claim being thrown out. 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. However, that particular error was not relied upon by the defenders as a defence to the claim for failure to implement the letter. 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? Please check and confirm that there is nothing that would adversely affect our security on any of the searches. My costs. The accident had caused her lung to become trapped in her ribcage and she was left with reduced capacity in her lungs and is in constant pain. 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. 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. [7] The Lord Ordinary at para 17 of his opinion held, on the facts, that the representatives of CMC, apart from any matter arising from question of implied warranty of authority, had no specific basis for believing that the solicitors appointed by the borrowers were giving an assurance that their clients were who they said they were or that they lived where they said they lived. 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". All information will be held in accordance with data protection requirements. BlemainFinance is appealing the decision. The identity of a person is made up from a bundle of qualities or attributes. Registered no: OC322962. [18] Accordingly, I reject the first ground of appeal for the pursuer. As Judge Hegarty observes at page 103 of his judgment however: "It isalmost inconceivable that an agent would agree to this". [26] Having regard to the history of the concept it is appropriate to have careful regard to English authority. 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. Guardian Money put a number of questions to Blemain/Together. 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). An official website of the United States government. 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. The following year a suspended possession order was made but the arrears on her account were paid, so it wasnt activated. Im going to have to sell my flat to pay them off, says Charles, adding: Its a ridiculous situation. Meanwhile, the period of notice was very short only seven days and the consumers right to redeem was curtailed by early redemption penalties throughout a significant period of the agreement. 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. 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. I do not accept the proposition that there was no evidential basis for that figure. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. Mrs Thomas said: "The stress of this caused me to dread the postman calling." She went to her local Citizen's Advice Bureau who referred her to Stephensons in September 2008. They lend both to individuals and corporate borrowers against security provided by the borrowers, normally in the form of a standard security over heritable property. His, is there any update on this. 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. Reference was made to SEB Trygg. (1) (a) The small claims track is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than 10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs. District Court Opinions; Unsealed Orders, Opinions, Documents and Docket Reports; Standing Orders; Guantanamo Cases; Links to Other Courts; ECF & Court Records. I do not consider that they gave any implied warranty going beyond this". It was submitted that the shortfall on the pursuers account with the defenders, following upon the sale of the subjects, ought properly to have been set against the figure of 10,000 which the sheriff was minded to award thereby, in effect, eliminating any such award. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. 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. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. It is noteworthy, indeed, that no such claim is made in the Blemain case where a similar letter of obligation was granted. 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 . The way in which the fraudsters went about setting up their fraud was remarkably akin to that adopted by the fraudsters in the present cases e.g. On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". 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. Please note we wish to take a 1st charge over the property. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. 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. The facts found, in both actions, reveal a striking resemblance. That is correct insofar as it goes. They made an application for a loan on or about 20 October 2004, initially through a broker. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). They also returned the draft letter of obligation drafted by Longmuir & Company. 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.". bankers hill insurance We use cookies to ensure that we give you the best experience on our website. The case was re-allocated to the fast track. The award of damages is entirely separate from any indebtedness said to be due to the defenders. In July 2008, Blemain Finance issued possession proceedings to take Mrs Thomas' home in relation to four of the agreements. 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. They argued that the misstatement was only slight and therefore insignificant. As already indicated Scots and English law reach the same result in such questions albeit, perhaps, on occasions using different terminology or concepts. We remind ourselves that Collen v Wright has been held to be the leading authority in this area in the law of Scotland for more than 150 years. Mr Morgan explained that they were not currently living at 3 Mentieth View which was presently let. But opting out of some of these cookies may affect your browsing experience. This cookie is set by GDPR Cookie Consent plugin. Debt Collection; Consumer Credit Sourcebook (CONC - FCA rules) Mortgages and secured loans; Legal. The proposed security subjects were free of any other mortgage or standard security. 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. The report stated that the property had been inspected on 2 November and the valuation was in the sum of 600,000. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. If you continue to use this site we will assume that you are happy with it. A result, the three agreements with which he was concerned were unenforceable on November... Do not consider that they were not currently living at 3 Mentieth View which was presently let give... 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