Mrs Thomas quickly fell into arrears with the loan agreements. This is not the case of a bare misstatement by a person not bound by any duty to give information. You're using Internet Explorer, some features might not work. The sheriff had used that evidence to justify his failure to award interest. 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. 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. Both companies are in the business of secured lending. Gordon Exall, Civil Litigation Brief, 2013-2023. 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. In relation to the CMC case we require to address the effect of the letter of obligation relied upon by the reclaimers in that case. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. 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. 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. BFL gave Messrs Mellicks a correspondence address for Mr and Mrs Morgan at 30 Guthrie Court, Gleneagles, Auchterarder, Perth which was not the address of the security subjects which were 3 Mentieth View, Dunblane, Perth, FK15 0PD (though the address was expressed to be 30 Mentieth View). The broker was supposed to have been acting in the customer's best interest in finding a loan that was the best for the customer. It was a terrible deal [but] at the time I really needed that 30,000, Charles tells Guardian Money. The factual situation in that case had strong similarities with the situations in the present actions. 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. 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. England and Wales Court of Appeal (Civil Division) 2013. Click here for a full list of Google Analytics cookies used on this site. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. Any discretion vested in the court did not extend to reliance upon a factor which, for the foregoing reason, was not properly before it. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. 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, [18] Accordingly, I reject the first ground of appeal for the pursuer. In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of, [8] Mr Allison criticised the sheriffs approach to interest on two levels. 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. 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.". After analysing these authorities and considering the submissions made to him the judge, at para 90 of his judgment, stated: "The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. The amount of loan being sought by them was 350,000. Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. Electronic Case Filing & Court Records; BEGIN: Electronic Case Filing; ECF Forms, Instructions, and Other Information; Bar Member/Attorney Information Lookup; PACER; Fee and Payment Information; Court Records ), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. The Circuit Judge held that the District Judge had erred in failing to consider fully the value being claimed. That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. (Irving v Burns 1915 SC 260).". Key Facts, Consumer Reclaim Ltd is regulated by the Financial Conduct Authority in respect of regulated claims management activities, reference number: 835212. On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. On 25 November the signed documents were forwarded to Mellicks. On 5 November 2004 CMC received from DM Hall, Chartered Surveyors, a mortgage valuation report dated 3 November over subjects at 34 Danube Street. The judgment said the wording about when it would be invoked was very broad, referring simply to market conditions, and broadened out further by the words actual or expected. LegalBeagles, JustBeagle and our logo are Registered Trademarks Our FCA reference number is 835212. Connecting decision makers to a dynamic network of information, people and ideas, Bloomberg quickly and accurately delivers business and financial information, news and insight around the world For. The following day Mr and Mrs Morgan sent Ms Sinclair a letter containing payment instructions, instructing payment of the loan amount less Balfour and Manson's fees to HSBC for the account of Elmwood Contracts. Title was recorded in the Register of Sasines not in the Land Registry. they produced passports and utility bills to the solicitors to support their identity. For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. 449153. It was a secret arrangement between Blemaim and the broker, which was nothing less than a bribe. 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. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. There was no attempt on record to challenge the pursuers averments thereanent. The claimants appealed the decision to allocate the matter to the small claims track. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. My costs. 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. Although it was interest-only and the interest rate was very high and I thought the terms were a bit difficult to understand, I thought: OK, maybe I can change something about this later on.. He informed the court that he did not make it a requirement that new clients should show this to him before he started work on their behalf, but made it clear that they would require to be produced at some point during any work being carried out by him for them. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. 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 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. Reference was made to SEB Trygg. 1050 First Street, NE Rachelle Nuttall , an associate solicitor in the firms Probate department has developed her career at Stephensons over the past ten Jury find mental health unit made a number of failures. Having regard to the contention that the letter of obligation had the effect, standing on its own, or providing the reclaimers with the remedies they seek, our conclusions are as follows. bankers hill insurance Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. Stephensons Solicitors LLP is a limited liability partnership. (See paragraph[18] in Wilson). [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. In a subsequent telephone conversation on 23 November 2004 Messrs DM Hall confirmed the value of the subjects, if a sale had to be effected within 90 days, to be 575,000. 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 reclaimers have been unable to recover the sums advanced. On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". 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. But opting out of some of these cookies may affect your browsing experience. BFL v Balfour & Manson LLP - the factual position. Nothing is disclosed that would adversely affect your security". The purpose of the loan was said "to assist the purchase of overseas property". [20] In any event, esto the sheriff was entitled to have regard to the shortfall amount, to eliminate what would otherwise have been an appropriate award of interest particularly where the defenders pleadings were silent on that very issue, was, to my mind, of doubtful legitimacy. Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. 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. 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. Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. It was marked for the attention of Akay Ahmet. 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 cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". StephensonsSolicitors LLP won the County Court case for Mrs Thomas fromPenzance, who had taken out five secured loans over her property between September 2004 and January 2008 with creditor,BlemainFinance. The repayments made under the three enforceable agreements were also refunded to only live agreements, therefore extinguished the arrears and as a result, the possession proceedings were dismissed. 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. The saga began in 2006, when Charles and her husband were looking to buy a house in Epsom, Surrey. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. . The second letter instructed payment of the funds received from CMC less Mr Longmuir's fees to HSBC, 76 Hanover Street, Edinburgh at an account in the name of Elmwood Contracts. [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. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. 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 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. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. 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. 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. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. To pay the deposit on the new property, she borrowed from Blemain via an interest-only loan secured on her flat. Please switch to another browser like Chrome, Firefox, or Edge for a better experience. 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. VAT number: 144 4752 12. Official websites use .gov You also agree that your information may be used to provide you with details of our services by email or telephone, Terms & Conditions | The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. They received a BT bill addressed to Mr C.P. BFL issued an offer letter to the borrowers the same day i.e. The Criminal Division is administratively divided into four branches: Case Management, Special Proceedings, Quality Assurance, and Courtroom Support. He did so at paras 73 and 74 of his opinion by saying that the letter of obligation was collateral to the principal transaction and "could not be enforced if that principal transaction was void (as it was here)" and that, in any event, the pursuers could show no damage flowing from any failure by Longmuir & Company to produce a title encumbered with the standard security "since the standard security referred to in the Letter of Obligation was itself void". [14] The terms of Longmuir & Co's letter of obligation, insofar as material were as follows: With reference to the settlement of the above transaction today, we hereby undertake to deliver to you within twenty four months of this date, a Land Certificate issued by the Keeper of the Land Registers of Scotland in favour of our clients showing the interest of our clients as registered proprietors of the above subjects, which Land Certificate shall contain no exclusion of indemnity and will disclose no entry, deed or diligence prejudicial to your clients interests therein other than such as may be created by or against your clients and further will disclose the standard security granted in favour of your clients". In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. Furthermore, he was almost certainly the person with whom Excel itself had been dealing on the basis of the same misapprehension as to his name and identity. 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. 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 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. Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. 2. 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. He had the opportunity to consider the evidence in its totality. However, while this is a good result for her, it will still have proved to be a very expensive loan. 4-5 Gray's Inn Square, London. The Particulars of Claim estimated the claim to be up to 21,325.67. His Lordship at para 96 sought to base his conclusion as to the limits of a warranty of authority in any particular case as something to be determined by reference to the specific circumstances which had given rise to the warranty. The District Judge had erred in failing to consider the evidence in its totality Criminal Division is divided! V Morna Grandison Judicial Factor to the borrowers the same day i.e the unenforceable agreements were to... She suffered an accident at work and could no longer work will still have proved be! 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