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. The website legalbeagles.info is owned and operated by LegalBeagles Group Ltd registered No. Please check and confirm that the property is in the sole name of Christopher Paul Cheetham and Juliet Cheetham. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. Court cases. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". 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. 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. By submitting your information you confirm you voluntarily choose to contact us via this website. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. It does not store any personal data. Each case listed has a dedicated page including a case summary, as well as links to court opinions and related documents filed in the suit. We have had sight of the necessary Searches in respect of the properties. December . 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. 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. 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). Any discretion vested in the court did not extend to reliance upon a factor which, for the foregoing reason, was not properly before it. 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. The onus is on them to provide an enforceable and correctly drafted document if they are hoping to repossess someones home. Mr and Mrs Morgan signed the documents. [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to quantum and as to the question of interest. 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. An official website of the United States government. If you continue to use this site we will assume that you are happy with it. Registration is recorded at: https://register.fca.org.uk. Its the responsibility of the creditor to ensure they comply. Didn't get all what I claimed in costs, as I claimed for sending letters and dealing with matters that I did before issuing proceedings and the judge would not allow them. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. He also advised the secretary that payment of the funds was to be made electronically to "Elmwood Contracts". The fact that there had been no competing offer at the time the offer of 150,000 was made; the effect of the recession and the adverse feedback about the condition of the property were all cited by the sheriff at page 4 in his Note. 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. 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. The transaction in this case followed closely the path of what happened in the CMC case. Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. 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. 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 [14] In relation to the first ground of appeal for the pursuer, I am not satisfied that the sheriff erred in arriving at the figure of 160,000. That particular feature was criticised by Mr Allison but, on reflection, I do not consider such criticism to be merited. that the sheriff had erred in failing to award interest to the pursuer. [3] In the CMC case Messrs Longmuir & Co were instructed by the borrowers to prepare the appropriate standard security in favour of CMC in return for CMC lending money to them. 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. On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. Having considered the relevant authorities on this topic the Lord Ordinary reached the following conclusions in both cases, at para 64 of his opinion: "In those circumstances, it is, in my opinion, difficult to see any room for any implied representation by the solicitors as to the identity of the borrowers for whom they were acting, other than that they were acting for the people with whom the lenders were already engaged in a process of finalising a loan transaction. This came about by Mr Morgan telephoning Balfour and Manson's offices and asking to speak to a solicitor in connection with the granting of a standard security over a property. That much was conceded by Ms Hamilton during the course of the appeal. However, you may visit "Cookie Settings" to provide a controlled consent. 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. 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, [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, [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], Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). MrAllison cited section 1(1) of the Interest on Damages (Scotland) Act 1958, as amended, and made further reference to the case of, [11] The principal position adopted on behalf of the defenders largely coincided with grounds 1 and 2 in the cross-appeal. 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. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. 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. They claimed she owed 52,000. 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. Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. Court procedure and general guidance; Norther Ireland Court Procedure; Consumer Materials. Stephensons Solicitors LLP is a limited liability partnership. It was signed for acceptance by Mr and Mrs Morgan. In some cases these terms were, in due course, given statutory force in, for example, the Sale of Goods Act, the Bills of Exchange Act etc. In each case the respondents have been the victims of mortgage fraud. 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. It appears to us that this letter has exactly the same status and meaning as that recognised, apparently by the parties, as applying to the letter in the Blemain case. Please note we wish to take a 1st charge over the property. [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 offer letter was signed for acceptance on 2 November by "Mr and Mrs Cheetham". The court held that as a matter of principle it would be wrong to impose strict liability on a solicitor for incorrectly naming his client, - see Buxton LJ in giving the judgment of the court at paras 66 and 67. What followed thereafter was what would routinely be expected to follow in a secured loan agreement of the sort in question. 165. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. They received a BT bill addressed to Mr C.P. The identity of a person is made up from a bundle of qualities or attributes. On 5 November 2004 CMC received from DM Hall, Chartered Surveyors, a mortgage valuation report dated 3 November over subjects at 34 Danube Street. In such circumstances, the warranty of authority will give equivalent redress against the agent. The warranty did not extend to warranting that the client had title to sue, was solvent, had a good cause of action or defence or had any other attribute asserted on his behalf. However having gone on to look at the background of the case before him, and having described at para 99 the transaction as proceeding as an "ordinary conveyancing transaction", he concluded at para 100: "In those circumstances, I am quite unpersuaded that BM Solicitors impliedly warranted either the identity of their client or his title to the property in question. 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. 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. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. Beyond that, no further case had been made out. For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. BlemainFinance argued that the repayments had been calculated by a computer and it was not possible to accurately state the true amount of the repayments because the banking system does not deal in fractions of a penny. [16] Mr Allison also founded upon the case of Wilson. Washington, D.C., Jan. 17, 2023 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed an opening brief today on behalf of its clients in U.S. Securities and Exchange Commission v. Spartan . 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 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. [9] On 24 November a formal mortgage offer was issued by CMC. 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. [2] After proof, the sheriff found the defenders liable to the pursuer in the sum of 10,000 together with expenses as taxed. England and Wales Court of Appeal (Civil Division) 2013. Information Commissioner Office number: ZA176000. . [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 third ground of appeal for the defenders also fails. 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. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. 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. An example of an analogous situation is to be found in Irving v Burns. The authority which they professed to have was this, that they were instructed by the borrowers who were already known to the lenders to assist in drawing up the loan and security documentation. 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. [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. Please contact the clients' solicitor as soon as possible and keep us updated at all times.". He did not accept that the discrepancies in the figures were merely mistakes. In Elias and another v Blemain Finance Ltd [2021] EW Misc 15 (CC), a circuit judge allowed the claimants' appeal and overturned a district judge's allocation of their case to the small claims track. Counsel for the reclaimers accepted that if the decision in that case fell to be considered to be good law for Scotland then they would fail on the main point raised by them in both cases, namely the scope of any implied warranty of authority by the respondents. The factual situation in that case had strong similarities with the situations in the present actions. 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.". Each agreement was out by a few pounds and pence.. Title was recorded in the Register of Sasines not in the Land Registry. 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. A guide to voluntary termination: Your rights. 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. 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. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. 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. 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. [4] When it came to Mr Dougans evidence, no similarly qualified witness was called on behalf of the defenders and, consequently, there was no contradictor, so to speak. It was accepted that steps could be taken, if the Keeper agreed, to effect a first registration in the Land Register. 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. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. When the impostor was introduced to it as a prospective client, it carried out certain checks in order to satisfy itself that he was the person whom he represented himself to be, that he lived at the address at which he claimed to be living and that he was indeed the registered proprietor of the property at 17 Richards Place. Mr and Mrs Morgan attended, as requested, on 23 November. [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. 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. She did not want to sell her flat in Streatham in south London as it was a shared-ownership property, so she went online and was referred to a broker who put her in contact with Blemain Finance. Both of these letters were headed "34 Danube Street". . Official websites use .gov There was also reference to the price recommended by Aberdein Considine at the beginning of the sale process. On 26 November Messrs Mellicks confirmed receipt of the documents including the standard security and confirmed that the funds had been transferred to Balfour and Manson. 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