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. Official websites use .gov That is made clear in Bowstead and Reynolds at para 9-066 where the writers state: "The basic warranty is only that the agent has authority from his principal: this is something particularly within the agent's knowledge. This cookie is set by GDPR Cookie Consent plugin. Get free access to the complete judgment in Blemain Finance Ltd v Goulding on CaseMine. He did not accept that the discrepancies in the figures were merely mistakes. They were living at 30 Guthrie Court, Auchterarder to which all correspondence should be sent. 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. 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. . 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. [3] The sheriff had issued an ex tempore judgment. Do you want to send me a private message with a little more detail on the background issue? It was accepted that steps could be taken, if the Keeper agreed, to effect a first registration in the Land Register. 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. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. Client of Consumer Reclaim awarded 10,351.41. She required both Mr and Mrs Morgan to attend Balfour and Manson's offices for the purposes of showing identification documents in the form of a passport or driving licence and a utility bill confirming their address. Debt Collection; Consumer Credit Sourcebook (CONC - FCA rules) Mortgages and secured loans; Legal. [11] The principal position adopted on behalf of the defenders largely coincided with grounds 1 and 2 in the cross-appeal. As it was, he had, aside from all else, been denied that opportunity. The onus is on them to provide an enforceable and correctly drafted document if they are hoping to repossess someones home. Earlier this year I had success in an appeal against allocation of a claim to the small claims track in the county court. This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. As Judge Hegarty observes at page 103 of his judgment however: "It isalmost inconceivable that an agent would agree to this". 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. 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. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. I was also referred to the decision of Judge Hegarty Q.C., in the Mercantile Court in Manchester, in the case of Excel . Reference was made to SEB Trygg. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. BLEMAIN FINANCE LIMITED Company number 01185052 Follow this company File for this company Overview Filing history People Charges More Registered office address Lake View, Lakeside, Cheadle,. You also have the option to opt-out of these cookies. Merely as agent, therefore, the agent does not warrant that his principal is solvent, or will perform the contract (if any). 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. 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. 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. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. [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. He noted that Messrs Mellicks had been acting for the lenders. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. 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. [5] The more detailed facts in relation to the two transactions, which form the basis for these actions, are set out fully in the Lord Ordinary's opinion to which reference is made. The reclaimers have been unable to recover the sums advanced. It is noteworthy, indeed, that no such claim is made in the Blemain case where a similar letter of obligation was granted. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. The sheriff had used that evidence to justify his failure to award interest. Each agreement was out by a few pounds and pence.. Unauthorised use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. LegalBeagles, JustBeagle and our logo are Registered Trademarks However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. 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 frauds perpetrated upon them as a result of fraudsters, each of the reclaimers involved two different pairs of individuals applying for a loan, pretending to be husband and wife who were owners of heritable property which was to institute the security for the loans. When applying CPR 26.8(1)(c), if a case has sufficient legal complexity such that a litigant in person could not reasonably conduct the trial, it is unlikely to be appropriate for the small claims track. 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. They may also ask that you transfer the money via the Post Office or Western Union. 3 pages) Ask a . Although it is not in the "classic" form, the letter bears all the hallmarks of a letter of obligation, long recognised as an obligation ancillary to that of the solicitor's client, designed to provide protection to, in this case, lenders during the gap period between settlement of the transaction and the recording of the lenders' interest. Find elections. [21] The rest of the transaction appeared to proceed in a straightforward and routine manner. You're using Internet Explorer, some features might not work. In July 2008, Blemain Finance issued possession proceedings to take Mrs Thomas' home in relation to four of the agreements. 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. (Collen v Wright (1857) 8 EL and BL 647)". Mr Longmuir's secretary photocopied these. [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. It was signed for acceptance by Mr and Mrs Morgan. I do not consider that they gave any implied warranty going beyond this". The sum of 354,868 was transferred by CMC to Mellicks on 26 November 2004. . Click here for a full list of third-party plugins used on this site. 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". He had not given much thought to why Mr Hone had not resorted to more conventional forms of . They claimed she owed 52,000. These cookies track visitors across websites and collect information to provide customized ads. 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. Analytical cookies are used to understand how visitors interact with the website. All information will be held in accordance with data protection requirements. 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. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. 12. 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. There was no attempt on record to challenge the pursuers averments thereanent. 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. 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. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. In the CMC case the reclaimers' pleas-in-law are as follows: "1. (Irving v Burns 1915 SC 260).". Secure .gov websites use HTTPS 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 proceedings related to an unregulated, interest-only, secured loan for 30,000 that Mrs Charles entered into in August 2006. 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. General consumer tips and guidance; Consumer Rights Act 2015; Consumer Contracts Regs; Consumer finance. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. 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. 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. kerala to delhi distance. Blemain Finance. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". They would, of course, have warranted that they had authority to act on behalf of their client. 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