These propositions clearly focus on the conduct of the agent involving an expressed or implied representation by him that he has authority to act for the principal he says he is acting for in the transaction he is entering into with the third party. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. 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. It refers at the outset to "the settlement of the above transaction today", is time limited, and contains at its core an obligation to ensure that the Register contains no entry prejudicial to the interests of the pursuers before the pursuers' interest is registered. 2. 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. The instruction letter to Messrs Mellicks noted that a copy of the borrowers' identification documents and a copy of the valuation of the property over which the security was to be taken would follow. [98] BM Solicitors, on the other hand, were a firm providing professional services and, as such, would not normally be expected to do more than carry out those services with reasonable professional skill and care [99] In the present case, BM Solicitors were almost certainly instructed by the self same impostor as had been dealing directly with Excel itself. 449153. All that the agent is warranting is that he has a client and that client has given him authority to act. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. Original reporting and incisive analysis, direct from the Guardian every morning. His decision is the subject of an appeal by the pursuer and a cross-appeal on behalf of the defenders. In each case the respondents have been the victims of mortgage fraud. 1 March 2010, ought to be deemed eliminated by the fact that the pursuer had not been called upon to pay interest (albeit, no doubt, at a differential, pactional rate) applying to the outstanding mortgage balance from 1 March 2010 onwards. 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. Mr Longmuir wrote down a mobile telephone number which they gave him for the purposes of contacting them. 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. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. The Defendant says that rescission as a remedy is fanciful in this case, that the Court will have to look at all the circumstances, that the borrowing was actually used for consolidation of other loans and that in reality what the Court will be doing is looking at an appropriate remedy probably of damages based on commission and charges most likely in the region of around 2,500. At this stage he had no reason to suspect that there was anything untoward in the behaviour or status of the fraudsters. [16] The application to BFL for a loan came via their website on 9 August 2004 and was for a loan for 203,000 repayable with interest over a period of 12 months. The onus is on them to provide an enforceable and correctly drafted document if they are hoping to repossess someones home. 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. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. 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. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. He also enclosed a draft of their letter of obligation. 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. . 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. Moreover, the defenders having explicitly agreed to the shortfall being left out of account (for the reasons specified at paragraph [9] in the sheriffs Note) that agreement precludes the defenders from founding upon the figure of 10,645.31. I do not accept the proposition that there was no evidential basis for that figure. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. 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. Stephensons Solicitors LLP is a limited liability partnership. He explained that the original title deeds had been lost. Vat no: 294 8327 19Authorised and regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - No. It appears, however, to highlight the limitations placed on an implied warranty of authority in such a situation as it was understood in at least that case. [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. 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. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. 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. 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. Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. Im 66 and into my retirement I didnt expect to be in this position of still owing this debt. 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? 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. Third-Party cookies are set by our partners and help us to improve your experience of the website. You also have the option to opt-out of these cookies. On 30 November Mellicks then sent to Longmuir & Co a cheque in that amount, less certain fees, which was to be held as undelivered, pending confirmation that Longmuir & Co had executed the documentation and would deliver that documentation along with the title deeds and their letter of obligation by return. 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. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. Borrowing from the Willes J's formulation of the warranty in Collen v Wright, the solicitors here in each case did not more than warrant "that the authority which (they professed) to have, did in point of fact exist". 13. 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. If so, Consumer Reclaim could get you many thousands of pounds back. As Judge Hegarty observes at page 103 of his judgment however: "It isalmost inconceivable that an agent would agree to this". 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. But, in any event, where, as here, no such express warranty was asked for, or given, matters must rest on the implied, warranty of authority to be implied as a matter of law the extent and nature of which was defined correctly in the Excel case. [18] Accordingly, I reject the first ground of appeal for the pursuer. 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. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. They received a BT bill addressed to Mr C.P. 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". Have you had a loan with Blemain Finance? 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. The risk that the law has sought to address by the implication of a warranty of authority is that the agent may not have the authority which he claims; and the justification for such an allocation of risk is that the agent is in much the better position to know or ascertain whether he has the requisite authority. 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. 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 core proposition, as I understood it, was that the sheriff had failed to afford proper weight to the principle of wrongful withholding and that, in doing so, his refusal to award interest in favour of the pursuer meant that he had erred. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. Each agreement was out by a few pounds and pence.. These cookies ensure basic functionalities and security features of the website, anonymously. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. Mr Morgan also produced the paper part of the driving licences of himself and his wife and two utility bills, one each in the name of himself and Mrs Morgan, which Ms Sinclair considered satisfactory identification. 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. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. 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. We have dealt with at least one case involving Blemain. [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. 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. The fact that the professed agent honestly thinks that he has authority affects the moral character of his act; but his moral innocence, so far as the person whom he has induced to contract is concerned, in no way aids such person or alleviates the inconvenience and damage which he sustains. The report stated that the property had been inspected on 2 November and the valuation was in the sum of 600,000. On the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. Mrs Thomas quickly fell into arrears with the loan agreements. 9 August. For my part, I can see no justification why risks of this kind should be transferred from the shoulders of a commercial concern such as Excel on to those of a professional firm such as BM Solicitors.". Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. ), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions. 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. Gordon Exall, Civil Litigation Brief, 2013-2023. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. Accordingly, it was argued on behalf of the defenders that the pursuer, on the evidence, ought to have failed when it came to the merits of the action. 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. 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 that letter the following appeared: "Once the loan monies are received these are to be paid over to complete our purchase of property in Spain. The case pitted Charles, a 66-year-old from West Sussex, against Blemain Finance, part of a company with several thousand customers and a 4bn loan book. Christmas party season prompts drink-drive warning following 239% increase in arrests. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. TORONTO, January 18, 2023--SPOT COFFEE (CANADA) LTD. (TSXV:SPP) ("SPoT Coffee" or the "Company") hereby refers to its news release dated October 12, 2021 whereby SPoT Coffee announced that its . Registration is recorded at: https://register.fca.org.uk. Blemain Finance. Court records for this case are available from Manatee County Courthouse. The website legalbeagles.info is owned and operated by LegalBeagles Group Ltd registered No. In particular on 17 November, Mr Longmuir wrote to Mellicks enclosing for their examination extracts (i) of the disposition in favour of Mr and Mrs Cheetham recorded in the Register of Sasines on 28 June 1989 and (ii) of the discharge by the building society in favour of Mr and Mrs Cheetham recorded in that Register on 24 April 1995. [19] In contrast, the arguments advanced by Mr Allison in furtherance of the second ground of appeal for the pursuer were, in my view, well-founded. [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. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. As it was, he had, aside from all else, been denied that opportunity. He noted that Messrs Mellicks had been acting for the lenders. 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.". On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. [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. 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. 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. (See paragraph[18] in Wilson). The sheriff had used that evidence to justify his failure to award interest. There was also reference to the price recommended by Aberdein Considine at the beginning of the sale process. The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . Didn't get all what I claimed in costs, as I claimed for sending letters and dealing with matters that I did before issuing proceedings and the judge would not allow them. [1] These two actions raise the same question arriving out of the law of agency. Key court cases relating to the campaign finance law. The factual situation in that case had strong similarities with the situations in the present actions. It also oversees the operation of several specialized courts known as problem solving courts. The arrears were cleared and no further action was taken. . In the absence of such circumstances the extent of the warranty which arises by implication of law is as described in Bowstead and Reynolds. I do not consider that they gave any implied warranty going beyond this". LegalBeagles, JustBeagle and our logo are Registered Trademarks (County Court) Practical Law UK Legal Update Case Report w-032-6840 (Approx. We acknowledge the county courts judgment, which found points in favour for both parties, including the rejection of any unfair relationship or irresponsible lending by Blemain. That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. 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". 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. 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 . In the CMC case the reclaimers sue the respondents for their losses also on the basis of the alleged breach of a letter of obligation granted by Messrs Longmuir & Co. As regards the last mentioned case, without in any respect criticising the decision given in it, Judge Hegarty at para 67 of his judgment said: "It does not follow that, in every case, an agent must be regarded as warranting the identity of his client and not merely the fact that he has authority to act on the client's behalf.". Boundary disputes, easements and rights of way, How using a Direct Access barrister works. Accept the proposition that there was anything untoward in the absence of circumstances. Once costs including the brokers fee and an arrangement fee, had lost. 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