The defenders agent had seen fit not to introduce a counterclaim in relation to the shortfall amount nor were there any pleas in law directed towards the way in which the court should approach the assessment of damages or interest. Both companies are in the business of secured lending. 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. The court heard she had written to complain about the high level of interest, and that she said whatever she did, [Blemain] kept adding to her account. [7] The second ground of appeal for the pursuer concerned the sheriffs approach to interest. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. Having so referred to those considerations Judge Hegarty concluded at para 102: "They strongly suggest that the court should not readily impose upon a person rendering professional services an absolute, unqualified obligation amounting, in effect, to a guarantee of his client's identity and title. In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of Gage v HMA 2011 SCL 645 and Wilson v Dunbar Bank plc 2008 SLT 301. 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. [27] In SEB Trygg Liv Holding AB v Manches (2006) 1 WLR 2276 the limited nature of the implied warranty of authority was emphasised by the Court of Appeal in a case involving solicitors who commenced arbitration proceedings in the name of a company which was no longer in existence. 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. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. 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. If there are doubts as to the realistic value of the claim then there is a mechanism in CPR 26.5(3) to require the claimant to justify their value [17]. The case pitted Charles, a. Please be aware that we would never ask for money upfront, and we do not provide unsecured loans. However, when it came to quantification of that greater sum, the sheriff had, for no cogent reason submitted Mr Allison, departed from Mr Dougans evidence. 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. In determining that no interest should be awarded in respect of the sum decerned for, the sheriff had relied upon the fact that the sums owed to the defenders had been paid off but subject to a shortfall of 10,645.31. In accordance with that approach, to my mind, the sheriff exercised a broad judgement as he was entitled to do in a case where the amount of damages did not admit of precise of calculation. Superior Court. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. We were advised that commercial lenders, like those involved in the proceedings before us, are not infrequently being made the victims of identity fraud. His dealings were with Mr Cheetham. 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. 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. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. It named the borrowers as Mr and Mrs Cheetham and the address of the property to be mortgaged as 34 Danube Street, Edinburgh. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. [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. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. [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. 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. [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. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. He had the opportunity to consider the evidence in its totality. All times are GMT. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. The terms of the loan were set out in the letter. Please note we wish to take a 1st charge over the property. Mr Allisons submission was to the effect that none of these features could properly be said to inform the decision to prefer the figure of 160,000 to that of 175,000 as proposed by Mr Dougan. As we are now under pressure to make settlement of this matter I wonder if you could ask the lenders solicitors to electronically transfer the loan funds to yourself and on receipt of these could you (after deducting your fees) transfer them direct to the seller. Thanks for the referral PT2537. 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. [28] The principal argument advanced by the reclaimers, in the present actions, as to the nature and extent of the implied warranty of authority given by a solicitor in acting for clients in the granting of a security over a property in return for a loan being made to them by a professional lender fell to be considered in a recent English case Excel Securities v Masood [2010] Lloyds Rep. P.N. 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. For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. Im 66 and into my retirement I didnt expect to be in this position of still owing this debt. On 12/29/2022 EXETER FINANCE LLC filed a Contract - Debt Collection court case against SRQ AUTO LLC in Manatee County Courts. That was a decision of the Court of Appeal and reliance was placed upon it by the reclaimers, in particular, for what is said at page 1363B-D to support their submission that the nature and effect of any warranty of authority is fact sensitive. This cookie is set by GDPR Cookie Consent plugin. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". If so, Consumer Reclaim could get you many thousands of pounds back. However, while this is a good result for her, it will still have proved to be a very expensive loan. On the next day, 3 December, they forwarded to Messrs Mellicks the letter of obligation dated 2 December together with extracts of a disposition and discharge "in our clients favour" these being the title deeds already shown to Mellicks under cover of their letter of 17 November. [5] In advancing the appeal for the pursuer, Mr Allison challenged the manner in which the sheriff had arrived at the figure of 160,000. Vat no: 294 8327 19Authorised and regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - No. 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. 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. Together Personal Finance Limited is a member of the FLA. [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. Mrs Thomas said: The stress of this caused me to dread the postman calling.. Key court cases relating to the campaign finance law. 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. The arrears were cleared and no further action was taken. 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. She stressed the absence of evidence from a marketing expert as to which other steps the defenders might reasonably have taken. 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. 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. This cookie is set by GDPR Cookie Consent plugin. Key Facts, Consumer Reclaim Ltd is regulated by the Financial Conduct Authority in respect of regulated claims management activities, reference number: 835212. On 1 November, the day before signing the acceptance of the offer letter, the fraudsters, again representing themselves as Mr and Mrs Cheetham, wrote to CMC on writing paper headed with the address 34 Danube Street, Edinburgh to confirm that the monthly payments in the respect of the loan were affordable by them. 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. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. They argued that the misstatement was only slight and therefore insignificant. Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. Jane Charles is hoping her 15-year nightmare involving a costly interest-only loan may soon be over after a court ruled that some of the lenders terms and conditions were unfair. 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. [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. 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. Ms Sinclair explained to them the effect of the standard security and the interest rates applicable to the loan. [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. VAT number: 144 4752 12. I do not accept the proposition that there was no evidential basis for that figure. You can learn more detailed information in our Privacy Policy. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. [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. Court Procedure. We will also require a property enquiry certificate, a Form 12 and details of the buildings insurance cover for the property. If, therefore, he never had authority to act on behalf of the principal or if his authority has terminated or if he exceeds the scope of his authority, he will be in breach of the implied warranty and will be liable in damages to any person to whom the warranty was given. This cookie is set by GDPR Cookie Consent plugin. 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. Secure .gov websites use HTTPS Gordon Exall, Civil Litigation Brief, 2013-2023. Firstly, under reference to paragraph [9] in the sheriffs Note, having explicitly precluded consideration of the shortfall for the purposes of determining the principal sum due to the pursuer, the sheriff then decided that the existence of the shortfall should be taken into account when consideration was being given to what, if any, award of interest should be made. The amount of loan being sought by them was 350,000. . Nothing is disclosed that would adversely affect your security". 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. 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. 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.". Once costs including the brokers fee and an arrangement fee, had been added, the total sum was 33,038. 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. 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. [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. You also agree that your information may be used to provide you with details of our services by email or telephone, Terms & Conditions | In the Cheshire Mortgage Corporation Limited ("CMC") case a separate point also arises as to the meaning and effect of a letter of obligation. Both of these letters were headed "34 Danube Street". [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. The proposed security subjects were free of any other mortgage or standard security. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. 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. There was no attempt on record to challenge the pursuers averments thereanent. The court held that the warranty given by a solicitor, when conducting proceedings, was that he had a client who had instructed him to assert or deny the claims made against the opposing party. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. Mr Allison submitted that had the issue of the shortfall and any consequences said to flow from its existence been focused in the defenders pleadings, that would have afforded him the opportunity to table certain discrete counter propositions in response. Do you want to send me a private message with a little more detail on the background issue? 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. It is impossible, in our judgment, to point to any material difference between the facts and circumstances of that case and those of the present cases and we are satisfied that the reasoning, just set out, applies equally well to the present cases. Charles said it was the broker who suggested those words be put down in order to help get the loan through easier. 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 shows that the courts will not allow creditors to impose unfair terms and conditions on consumers, and where such terms are used, the courts will not hesitate in striking those terms from the contracts.. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. Please check and confirm when the customers purchased the property and for how much. He wrote also to the fraudsters at 34 Danube Street including a copy of Mellicks' letter and requested them to contact him in order that he could take their further instructions. By submitting your information you confirm you voluntarily choose to contact us via this website. [33] It follows that in relation to the BFL case the reclaiming motion is refused. Your choice regarding cookies on this site, Succession & estate planning for business owners, Partnership agreements & limited liability partnerships, Directive on security & network information systems, Privacy & electronic communications regulations, Claims against HM Courts & Tribunal Services, Care home fees and planning for the future. 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. 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. These cookies ensure basic functionalities and security features of the website, anonymously. Boundary disputes, easements and rights of way, How using a Direct Access barrister works. Cheetham at 34 Danube Street, a Scottish Power payment reminder similarly addressed, a Scottish Gas bill addressed to Mrs J Cheetham at that address, a driver's licence in the name of Christopher Paul Cheetham at that address and a driving licence in the name of Juliet Cheetham also at that address.". 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. 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 purpose of the loan was said "to assist the purchase of overseas property". 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. 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. 1050 First Street, NE Registered in England and Wales. (It should be stressed that the fact that the assessment of damages was at large for the sheriff was not the subject of any challenge by the pursuer having regard to the state of the defenders pleadings). These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. 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. The Particulars of Claim estimated the claim to be up to 21,325.67. We agree. The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. [8] Mr Allison criticised the sheriffs approach to interest on two levels. 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.". It was also a conspicuous feature of the reclaimers' position before this court that they, at times, appeared to be submitting that in the CMC case the existence and terms of the letter of obligation provided, in some way, further support to their argument that a breach of implied warranty of authority on the part of the respondents, in that case, had arisen. The fraudsters, in the event, have disappeared. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated. It seems to us that that decision does not assist in relation to the specific issue we have to determine in the present cases. 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]. To four of the loan borrowers as Mr and Mrs Cheetham and the interest rates applicable to loan... Might be argued that the sheriff had indulged in speculation rather than relying the! 8327 19Authorised and regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - no said it was broker... Did not warrant that the client had the name by which he was concerned were unenforceable your. Allison criticised the sheriffs approach to interest on two levels not accept the proposition that there is nothing that adversely! And regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - no appeared in present! 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