We are aware of a financial scam whereby a firm purporting to be Blemain Finance will ask for money upfront for unsecured loans. 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. Christmas party season prompts drink-drive warning following 239% increase in arrests. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. District Judge Pithouse at Dartford County Court found that the secret commission paid by Blemain Finance to the broker made it not possible for the broker to act in the best interest of the customer and that Blemain were liable because there was nothing in their finance agreement to inform the customer of this. [18] Accordingly, I reject the first ground of appeal for the pursuer. Bridging Finance Limited | Registered in England and Wales - Company Registration Number 03166982 Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. He made no award of interest on that sum. 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. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. 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. [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. 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. . (See paragraph [8] in his Note). A lock ( LockA locked padlock ) or https:// means you've safely connected to the .gov website. 2. This website uses cookies to improve your experience while you navigate through the website. In the law of Scotland the legal foundation of the liability created is described by Gloag on Contract (2nd edition) at page 155 as: "The rule that the assertion of authority implies a contract that the authority exists is of general application". Share sensitive information only on official, secure websites. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. 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. 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. 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. 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. CMC v Morna Grandison Judicial Factor to the estate of Longmuire & Co - the factual position. The identity of a person is made up from a bundle of qualities or attributes. [29] In the Excel Securities case Judge Hegarty QC, sitting in the Queen's Bench Division of the High Court of Justice, Manchester District Registry Mercantile Court reviewed this area of law in a comprehensive and careful decision. The proposed security subjects were free of any other mortgage or standard security. As Judge Hegarty observes at page 103 of his judgment however: "It isalmost inconceivable that an agent would agree to this". The arrears were cleared and no further action was taken. The sheriff had used that evidence to justify his failure to award interest. Charles has so far paid back a total of almost 60,000 in interest, and there is still an outstanding debt of almost 45,000, even after the deduction. She had never met or acted for Mr and Mrs Morgan previously. 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. [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. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. 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. LegalBeagles, JustBeagle and our logo are Registered Trademarks The point is incapable of much further elaboration.". Together Personal Finance Limited is a member of the FLA. In particular there is nothing in principle in the law of contract to prevent an agent from guaranteeing to a third party that he has a principal who is the same person as appears on property registers, for example, as the owner of a specific property. We were advised that commercial lenders, like those involved in the proceedings before us, are not infrequently being made the victims of identity fraud. The details of the tenancy were in fact provided by Mr Morgan and sent to Mellicks under cover of a letter dated 4 November. But the risks against which Excel is seeking to be protected in these proceedings are the commercial risks involved in lending to a person who may not be all that he claims to be. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. [33] It follows that in relation to the BFL case the reclaiming motion is refused. 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. He adds: While this decision is not binding on others, it is entirely consistent with other rulings on issues of this type. The repayments made under the three enforceable agreements were also refunded to only live agreements, therefore extinguished the arrears and as a result, the possession proceedings were dismissed. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. 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. England and Wales Court of Appeal (Civil Division) 2013. that the sheriff had erred in failing to award interest to the pursuer. So it is only right that the risk of lack of authority should be borne by the agent by way of an implied warranty. On the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. [1] These two actions raise the same question arriving out of the law of agency. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. [3] The sheriff had issued an ex tempore judgment. In each case, two individuals stole the identities of innocent . Borrowing from the Willes J's formulation of the warranty in Collen v Wright, the solicitors here in each case did not more than warrant "that the authority which (they professed) to have, did in point of fact exist". However, while this is a good result for her, it will still have proved to be a very expensive loan. 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. In that case the Lord Ordinary rejected the reclaimers' arguments based on an alleged breach of the letter of obligation. BFL issued an offer letter to the borrowers the same day i.e. 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. 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. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. 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. The reclaimers in each action now reclaim against those decisions of the Lord Ordinary. 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. Solicitor marks a decade of service helping bereaved families. He had the opportunity to consider the evidence in its totality. Necessary cookies are absolutely essential for the website to function properly. Debt Camel - Getting Out Of Debt UK, Follow Consumer Credit Litigation, Banking & Debt Collection on WordPress.com. 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. . 3. 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. But opting out of some of these cookies may affect your browsing experience. 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. The core proposition, as I understood it, was that the sheriff had failed to afford proper weight to the principle of wrongful withholding and that, in doing so, his refusal to award interest in favour of the pursuer meant that he had erred. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. [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. In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. Washington, DC 20463, Federal Election Commission | United States of America. 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. Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). 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 case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. His Lordship then referred to certain considerations which were set out and discussed in the case of Midland Bank Plc v Cox McQueen [1999] PNLR 593 as to the limited scope there is for implying obligation to third parties to the given by person such as solicitors providing professional services, the third parties in question not being their clients. [22] At all odds, I have given effect to the proposition that the sheriff ought to have awarded interest in favour of the pursuer principally for the reasons set out in her second ground of appeal. You can also follow my blog on consumer credit here. [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 para 97 of his judgment Judge Hegarty said: "Excel carries on business in the financial sector, specialising in making short-term commercial loans. Mr Longmuir admitted at the proof that there was an error in that letter. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. England and Wales Cases page 45. Click here for a full list of Google Analytics cookies used on this site. It does not store any personal data. 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. 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. Grandison Judicial Factor to the BFL case the reclaiming motion is refused Kotecha v Phoenix Recoveries ( Court appeal... To matters was entirely illegitimate and that interest should have been influenced by the foregoing advantage and by impressions! As was the term allowing Blemain to charge them rendered Court judgments for each court/tribunal. That evidence to justify his failure to award interest to the BFL case the reclaiming motion is refused been... Drink-Drive warning following 239 % increase in arrests the impressions he formed ground of appeal is somewhat tautologous Finance! 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