The pursuer has achieved a modicum of success in terms of her appeal. Registration is recorded at: https://register.fca.org.uk. An official website of the United States government. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. The judge said he did not accept that Blemain knew about the real purpose of the loan. Any discretion vested in the court did not extend to reliance upon a factor which, for the foregoing reason, was not properly before it. The payment protection she had taken on two of the agreements only covered her for the first 12 months she was out of work and in total she received only 2,311.32 in repayments from the payment protection insurer, despite paying much more in premiums and interest. He confirmed that they had requisitioned copies of the prior title deeds. They claimed she owed 52,000. 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 is noteworthy, indeed, that no such claim is made in the Blemain case where a similar letter of obligation was granted. In the BFL case Messrs Balfour & Manson were instructed by the borrowers to prepare the appropriate standard security, in favour of BFL Both firms of solicitors then engaged with Messrs Mellicks Solicitors, acting for the lenders, in relation to the execution of the standard securities. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. These cookies will be stored in your browser only with your consent. The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. In the absence of such circumstances the extent of the warranty which arises by implication of law is as described in Bowstead and Reynolds. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. The Court should be slow to allocate to a track normally associated with a lower value. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. 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. That is correct insofar as it goes. 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. Privacy Policy | The saga began in 2006, when Charles and her husband were looking to buy a house in Epsom, Surrey. 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. 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. BFL issued an offer letter to the borrowers the same day i.e. 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. [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] supra. The factual situation in that case had strong similarities with the situations in the present actions. It is frequently said to be narrow in its scope. Mr Longmuir admitted at the proof that there was an error in that letter. All rights are reserved. [6] In the CMC case the fraudsters presented themselves as Christopher Paul Cheetham and Mrs Juliet Cheetham of 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. [4] In the present proceedings, both sets of reclaimers sue the respondents for loss which they aver they suffered through the respondents' breaches of their warranty of authority. 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 July 2008, Blemain Finance issued possession proceedings to take Mrs Thomas' home in relation to four of the agreements. 2. Please check and confirm when the customers purchased the property and for how much. [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. The case was re-allocated to the fast track. What followed thereafter was what would routinely be expected to follow in a secured loan agreement of the sort in question. 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. If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here. 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 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. [20] On 2 November Ms Sinclair responded to Messrs Mellicks letter of 29 September by sending the extract title deeds to them to enable them to prepare the draft standard security. The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. [1] These appeals arise out of an action raised under section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in which the pursuer seeks damages from the defenders on the basis that they failed to sell repossessed heritable subjects for the best price that could reasonably have been obtained. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. 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. They made an application for a loan on or about 20 October 2004, initially through a broker. 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 made no award of interest on that sum. 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. 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. Mr Longmuir wrote down a mobile telephone number which they gave him for the purposes of contacting them. 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.. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. The sum of 354,868 was transferred by CMC to Mellicks on 26 November 2004. The offer, which was valid for three months, was for a loan for one year of 350,000 plus 4,868 in fees to be added to the loan, and contained details of the repayment schedule. that the sheriff had erred in failing to award interest to the pursuer. [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. 10,000, should be awarded in favour of the pursuer by way of damages. It should be noted that that formulation of principle is but an example of what the courts in England and Wales and, during the 19th century, in the context of certain well known mercantile transactions, namely imply terms into them in the absence of their having been expressly excluded by the parties, to render the contract commercially sensible or workable. The warranty did not extend to warranting that the client had title to sue, was solvent, had a good cause of action or defence or had any other attribute asserted on his behalf. 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 (FECA) and the validity of the Commission's regulations. Official websites use .gov England and Wales Cases page 45. 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 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. Find elections. [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. 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. Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. One of the leading and authoritative English textbooks on the topic of agency, namely Bowstead and Reynolds on Agency (19th Edition) at page 581 sets out the following points: (1) Where a person, by words or conduct, represents that he has actual authority to act on behalf of another, and a third party is induced by such representation to act in a manner in which he would not have acted if that representation had not been made, the first-mentioned person is deemed to warrant that the representation is true, and is liable for any loss caused to such third party by a breach of that implied warranty, even if he has acted in good faith, under a mistaken belief that he had such authority. The terms of the loan were set out in the letter. 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. We look forward to hearing from you. His, is there any update on this. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. 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. This appears to have been a major consideration in the emergence and development of the doctrine. (Collen v Wright (1857) 8 EL and BL 647)". 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. 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.. As already noted the reclaimers also disclaimed, as they had before the Lord Ordinary, any claim which is to any extent dependent on some failure of duty of care said to be owed to them by the respondents. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. 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. 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. FCA number is 719121. 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. It could, therefore, not be said that the obligation could not be complied with. [3] The sheriff had issued an ex tempore judgment. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. In that state of affairs, it is simply not open to the defenders, on appeal, to mount a challenge directed at the courts assessment regarding the quantum of damages. [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. Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. Share sensitive information only on official, secure websites. Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. In the CMC case the reclaimers' pleas-in-law are as follows: "1. 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.". Its the responsibility of the creditor to ensure they comply. [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. All times are GMT. They were sent an instruction letter on 8 November 2004 from CMC which identified the borrowers as Christopher Paul Cheetham and Julie Cheetham with a correspondence address at 34 Danube Street, Edinburgh, which was also given as their security address. JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION, RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE), PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS, COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF METAPHORICAL WARFARE, COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS, A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY 17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF "METAPHORICAL WARFARE", Coronavirus: Guidance for lawyers and businesses, Munkman & Exall on Damages for Personal Injuries and Death 14th ed, The APIL Guide to Fatal Accidents 4th edition, Kings Chambers Costs & Litigation Funding, Website of 4-5 Gray's Inn Square, Catastrophic Injury Group. [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. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . 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. BFL v Balfour & Manson LLP - the factual position. Analytical cookies are used to understand how visitors interact with the website. Together Personal Finance Limited is a member of the FLA. 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. In 2007, Blemain brought possession proceedings resulting in a suspended possession order. You also have the option to opt-out of these cookies. MrAllison cited section 1(1) of the Interest on Damages (Scotland) Act 1958, as amended, and made further reference to the case of Wilson supra. He did not accept that the discrepancies in the figures were merely mistakes. [19] No further movement in the transaction appears to have occurred until 26 October 2004 when Ms Sinclair met Mr Morgan and received from him extract registered title deeds for the proposed secured subjects. The instructions to Messrs Mellicks were in similar terms to the instructions given by CMC in the case of Mr and Mrs Cheetham. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. That much was conceded by Ms Hamilton during the course of the appeal. The judgment stated that Charles said she wanted to pay off the loan early but all her attempts to negotiate failed. Please note we wish to take a 1st charge over the property. U.S. District Courts | Finance | 1:22-CV-04958 | 2022-12-16. 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