He explained that he wished to raise money and was keen to have the transaction completed quickly. 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. However, while this is a good result for her, it will still have proved to be a very expensive loan. [9] On 24 November a formal mortgage offer was issued by CMC. 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. It could, therefore, not be said that the obligation could not be complied with. In the CMC case the reclaimers' pleas-in-law are as follows: "1. 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. Do you want to send me a private message with a little more detail on the background issue? You're using Internet Explorer, some features might not work. It is plain that there was evidence from Mr Dougan to the effect that the property had been sold for too little and that with marketing over a longer period it might possibly have fetched 175,000. On 5 November 2004 CMC received from DM Hall, Chartered Surveyors, a mortgage valuation report dated 3 November over subjects at 34 Danube Street. Christmas party season prompts drink-drive warning following 239% increase in arrests. 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. Though they may not have had any specific knowledge of the inquiries made by Excel, they could reasonably have assumed that Excel would have carried out sufficient investigations to satisfy itself as to the identity and creditworthiness of the individual concerned. A woman has had three loans, which were secured against her home, written off thanks to a leading North West law firm, giving renewed hope to thousands of others facing a daily debt nightmare. On 2 December Longmuir & Company wrote to Messrs Mellicks enclosing the standard security, acceptance and standing order "all duly signed by our clients". 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. I would be interested to know. Wigan-based law firm, Stephensons, is marking the tenth anniversary of one of its long-standing members of staff. 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. Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. 13. As previously noted Mr Cheetham came into the offices of Longmuir & Co on 30 November. In addition to being written in unusual terms, the letter refers to a land certificate in relation to a title which is recorded in the Sasine Register. The Lord Ordinary at para 16 of his opinion states: "It is clear that the CMC were provided with a number of documents purporting to confirm the identity and address of the borrowers. 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. Anyone contracting with such an agent must look to the principal for any redress to which he is entitled as matter of contract. He noted that Messrs Mellicks had been acting for the lenders. The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. 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. 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. 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. 2. It cannot be read to have imposed the extraordinary obligation upon the respondents which the reclaimers argue for. 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. 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.". 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. Analytical cookies are used to understand how visitors interact with the website. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. The identity of a person is made up from a bundle of qualities or attributes. Debt Collection; Consumer Credit Sourcebook (CONC - FCA rules) Mortgages and secured loans; Legal. 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". 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. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. Our specialist solicitors deal with everything from medical negligence claims,personal injury claims,driving offences, family law,divorce lawandresidential conveyancing toprofessional discipline, employment law,corporatelaw, regulatory lawand commercial property. An official website of the United States government. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. The instructions contained in the document issued to Mellicks on 8 November contained inter alia the following: 1. By submitting your information you confirm you voluntarily choose to contact us via this website. Registered no: OC322962. Both of these letters were headed "34 Danube Street". [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 case was re-allocated to the fast track. Together Personal Finance Limited is a member of the FLA. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. 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". Mr and Mrs Morgan attended, as requested, on 23 November. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. [37] Although the obligation assumed in the Cheshire Mortgage letter of obligation was much wider, both in terms of its duration and the content of the obligation, than is normally the case, it was plainly written and delivered as a letter of obligation ancillary to the mortgage transaction being settled on the date of its delivery. In 2018, Blemain tried to revive the old suspended possession order, and a few months later Charles was given permission to bring a counterclaim in which she claimed several of the terms were unfair and there had been breaches of the loan agreement. Professional lenders were seeking to recover from a firm of solicitors their losses resulting from identity fraud by borrowers for whom the solicitors had acted in preparing security documents over property of which the borrowers claimed they were the true owners. She had never met or acted for Mr and Mrs Morgan previously. Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. Original reporting and incisive analysis, direct from the Guardian every morning. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. If so, Consumer Reclaim could get you many thousands of pounds back. In particular the standard and specific instructions were the same. . Telefon: + 43 664 4167380 Email: office@herdz.at . The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. [25] At the outset of his submissions, junior counsel for the reclaimers informed the court that the principal argument to be advanced arose from and was based on the statement of principle set out in the dictum of Willes J in Collen v Wright 1857 8E B 647 at 657 which is to the following effect: "I am of opinion that a person, who induces another to contract with him as the agent of a third party by an unqualified assertion of his being authorised to act as such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion of authority being untrue. 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. Both companies are in the business of secured lending. 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. 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.. 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. 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. Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. The result is that my client has the opportunity to recover thousands of pounds in legal costs rather than being limited to fixed legal costs of 100. 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. [39] We also agree with the secondary basis on which the Lord Ordinary rejected the claim based on the letter, viz that the pursuers could show no loss since the obligation to which the letter of obligation was ancillary, the standard security, was void. Solicitor marks a decade of service helping bereaved families. However, it is now well established that, in such circumstances, the agent will normally be regarded as giving an implied warranty as to his authority. He never in fact met Mrs Cheetham. The facts found, in both actions, reveal a striking resemblance. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. I enclose a separate letter of instruction in this regard signed by myself and my wife". High street lenders were not prepared to give them a mortgage for the full amount they required, and they needed to raise an extra 30,000 for the deposit. But its application is not limited to cases where a transaction entered into in reliance on the supposed authority of the agent was with the alleged principal himself. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. 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. 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. [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. LegalBeagles, JustBeagle and our logo are Registered Trademarks The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. Legal - General; Statutes and . Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. He had the opportunity to consider the evidence in its totality. Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. The lenders sued the solicitors for their loss on the grounds, inter alia, of breach of warranty authority "as to the identity" of their clients. 449153. Liam Waine, a consumer partner atStephensons, said: It became apparent that the last three agreements were not executed correctly and were therefore unenforceable because the amount of credit on them was incorrectly stated. 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. There was also reference to the price recommended by Aberdein Considine at the beginning of the sale process. [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 cookies will be stored in your browser only with your consent. 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. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. 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. [12] Under reference to the second ground of appeal for the defenders, Ms Hamilton made much of the significance of comparables in the context of Mr Dougans evidence. 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. The cookie is used to store the user consent for the cookies in the category "Other. 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