England and Wales Cases page 45. 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. BFL issued an offer letter to the borrowers the same day i.e. Debt Collection; Consumer Credit Sourcebook (CONC - FCA rules) Mortgages and secured loans; Legal. 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 correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. Click here for a full list of Google Analytics cookies used on this site. On 5 November 2004 CMC received from DM Hall, Chartered Surveyors, a mortgage valuation report dated 3 November over subjects at 34 Danube Street. [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. Mr Allison contended that that approach to matters was entirely illegitimate and that interest should have been allowed. Necessary cookies are absolutely essential for the website to function properly. 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 terms of the loan were set out in the letter. 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. He made no award of interest on that sum. Cheshire Mortgage Corporation Limited (CMC) and Blemain Finance Limited (Blemain) were both victims of separate mortgage frauds. Ms Hamilton, in particular, adhered to the penultimate sentence of the second ground of appeal for the defenders which suggested that there had been no evidence before the sheriff to support the conclusion that advertising the property in a different way or for a longer period of time or amending the price of the property in a different way would have achieved a higher price. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. Registered office: Cornelius House, 178-180 Church Road, Hove, East Sussex BN3 2DJ. Blemain agreeing to the original possession claim being thrown out. Third-Party cookies are set by our partners and help us to improve your experience of the website. That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. 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. 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. The reclaimers' sole complaint was that the borrowers, having turned out not to be the owners of the subjects over which the reclaimers wished to have security for their lendings the respondents were in breach of their respective implied warranty of authority. [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. Powered by vBulletin Version 5.3.4 Copyright 2023 vBulletin Solutions, Inc. All rights reserved. A modern statement of the position in Scotland is to be found in the current edition of Gloag and Henderson The Law of Scotland (12th Edition) at para 19.26 where the following can be found: "If he (the agent) honestly thought he had the principal's authority, as where an auctioneer, by mere mistake, sold a horse which was not for sale (Anderson v Croall (1903) 6F 153), or solicitors believed that they were representing a trust when in fact there were no trustees (Scott v J.B Livingston and Nicol 1990 SLT 305) the agent will incur liability on the theory that an agent impliedly warrants that he has the authority of the principal whom he names, and is liable in damages for breach of that warranty if it turns out that he has no authority. The interest rate will now be fixed at 11.45%, and Blemain must pay 75% of the legal costs that Charles incurred. [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. An example of an analogous situation is to be found in Irving v Burns. The proceedings related to an unregulated, interest-only, secured loan for 30,000 that Mrs Charles entered into in August 2006. 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. He never in fact met Mrs Cheetham. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. 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). (See paragraph58 in the Letham Grange case). [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to quantum and as to the question of interest. Key court cases relating to the campaign finance law. 1 March 2010, ought to be deemed eliminated by the fact that the pursuer had not been called upon to pay interest (albeit, no doubt, at a differential, pactional rate) applying to the outstanding mortgage balance from 1 March 2010 onwards. 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. [16] The application to BFL for a loan came via their website on 9 August 2004 and was for a loan for 203,000 repayable with interest over a period of 12 months. 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. . [25] The cross-appeal has failed in its entirety. 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. BlemainFinance is appealing the decision. However, while this is a good result for her, it will still have proved to be a very expensive loan. Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. 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. U.S. District Courts | Finance | 1:22-CV-04958 | 2022-12-16. 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 point is incapable of much further elaboration.". [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. Mr Morgan explained that they required the loan in order to buy property in Spain and requested that the funds be paid direct to parties in Spain. It was submitted that the shortfall on the pursuers account with the defenders, following upon the sale of the subjects, ought properly to have been set against the figure of 10,000 which the sheriff was minded to award thereby, in effect, eliminating any such award. If you continue to use this site we will assume that you are happy with it. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. The surveyors report also indicates that alterations have been made to the property and we should be pleased to receive the appropriate building warrants and completion certificates. It named the borrowers as Mr and Mrs Cheetham and the address of the property to be mortgaged as 34 Danube Street, Edinburgh. 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. I do not accept the proposition that there was no evidential basis for that figure. 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. . We have dealt with at least one case involving Blemain. 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. 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. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. [16] Mr Allison also founded upon the case of Wilson. It was not contended on behalf of the reclaimers, nor was it found by the Lord Ordinary, that either Messrs Longmuir or the respondents in the BLF case had acted in anything other than good faith or that they had not understood that the borrowers had title to the subjects over which they granted the pretended securities. (2) Every person who purports to act as an agent is deemed by his conduct to represent that he has in fact been duly authorised so to act, except where the purported agent expressly disclaims authority or where the nature and extent of his authority, or the material facts from which its nature and extent may be inferred, are known to the other contracting party". She went to her local Citizens Advice Bureau who referred her toStephensonsin September 2008. 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. 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. 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. Superior Court. Mrs Thomas quickly fell into arrears with the loan agreements. 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