The result is that my client has the opportunity to recover thousands of pounds in legal costs rather than being limited to fixed legal costs of 100. The respondents in the action at the instance of Blemain Finance Limited ("BFL") are Balfour & Manson LLP a firm of solicitors who acted in a security transaction with which the action at BFL's instance is concerned. However, it seems to me that the approach approved of by the Extra Division of the Inner House is not dissimilar to that adopted by the sheriff in the present case. High street lenders were not prepared to give them a mortgage for the full amount they required, and they needed to raise an extra 30,000 for the deposit. The accident had caused her lung to become trapped in her ribcage and she was left with reduced capacity in her lungs and is in constant pain. [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. 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. [21] The rest of the transaction appeared to proceed in a straightforward and routine manner. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. In such circumstances, the warranty of authority will give equivalent redress against the agent. 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. 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 We were told that in such situations they may seek to recover their losses from others such as the respondents in the present cases. 10,000, should be awarded in favour of the pursuer by way of damages. 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. I did not understand his argument to the effect that the sheriffs discretion in this matter was not to be taken as entirely unfettered to be the subject of any challenge. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. There was no counterclaim. Registered no: OC322962. [25] At the outset of his submissions, junior counsel for the reclaimers informed the court that the principal argument to be advanced arose from and was based on the statement of principle set out in the dictum of Willes J in Collen v Wright 1857 8E B 647 at 657 which is to the following effect: "I am of opinion that a person, who induces another to contract with him as the agent of a third party by an unqualified assertion of his being authorised to act as such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion of authority being untrue. By submitting your information you confirm you voluntarily choose to contact us via this website. Both of these letters were headed "34 Danube Street". The agency also defends suits contesting its dismissals of administrative complaints, petitions for review of Commission decisions regarding the presidential public funding program and civil suits challenging the constitutionality of provisions of the Federal Election Campaign Act . In 2007, Blemain brought possession proceedings resulting in a suspended possession order. In each case the respondents have been the victims of mortgage fraud. At the beginning she says the interest rate was 13.9%, and the court documents say it went up to 14.9% at one point. 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. 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. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. [18] Accordingly, I reject the first ground of appeal for the pursuer. I would be interested to know. 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. 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. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). Title was recorded in the Register of Sasines not in the Land Registry. 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. She took out the loans for home improvements, debt consolidation and to purchase a car, with the amounts borrowed each time ranging from 5,000 to 10,000. [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. Guardian Money put a number of questions to Blemain/Together. It was a term of the mortgage offer that the loan be secured by a first mortgage over the property in the form of the draft standard security accompanying the offer. It cannot be read to have imposed the extraordinary obligation upon the respondents which the reclaimers argue for. [9] On 24 November a formal mortgage offer was issued by CMC. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. The third ground of appeal for the defenders also fails. She also described being bombarded with letters and phone calls about the arrears. Have you had a loan with Blemain Finance? 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, [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to, [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. But the judgment did not back her on everything: it said that while Blemain failed to carry out checks regarding how the loan was to be funded in retirement, in breach of official guidance at the time, that does not automatically render the relationship unfair. Consumer Reclaim is a claims management company which specialises in consumer mis-selling of goods, services and insurance.We are regulated by the Financial Conduct Authority. We have dealt with at least one case involving Blemain. The first letter was accompanied with certain documents signed by Mr and Mrs Cheetham. The identity of a person is made up from a bundle of qualities or attributes. He confirmed that they had requisitioned copies of the prior title deeds. Stephensons Solicitors LLP is a limited liability partnership. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. A .gov website belongs to an official government organization in the United States. England and Wales Cases page 45. The judge said he did not accept that Blemain knew about the real purpose of the loan. Wigan-based law firm, Stephensons, is marking the tenth anniversary of one of its long-standing members of staff. [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. General consumer tips and guidance; Consumer Rights Act 2015; Consumer Contracts Regs; Consumer finance. 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. The judge then went on to refer to the case of Collen v Wright and also the cases of Yonge v Toynbee [1910] 1KB 215 and Firbank's Executors v Humphreys [1886] 18 QBD 54 and Penn cited supra. Necessary cookies are absolutely essential for the website to function properly. Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. 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. He had the opportunity to consider the evidence in its totality. That risk normally manifests itself in the fact that, if the agent does not, in truth, have the authority which he claims, the other party will be deprived of any effective redress against the assumed principal. At a county court hearing in November, Charles said that, on reflection, the loan was unaffordable, and her agreement did not give any details of what charges could be applied if she failed to make a payment. 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. Do you want to send me a private message with a little more detail on the background issue? The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. 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. Under the heading "B Standard instructions" there appeared as follows: "11. These cookies track visitors across websites and collect information to provide customized ads. The reclaimers have been unable to recover the sums advanced. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. 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, [16] Mr Allison also founded upon the case of. Call on 0161 348 7670 or freephone 0800 988 822 for advice. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. On 30 November Mellicks then sent to Longmuir & Co a cheque in that amount, less certain fees, which was to be held as undelivered, pending confirmation that Longmuir & Co had executed the documentation and would deliver that documentation along with the title deeds and their letter of obligation by return. You can also follow my blog on consumer credit here. This cookie is set by GDPR Cookie Consent plugin. The Penn case was not concerned with an issue as between the third party and an agent contending that he had authority to act for a principal. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. I do not consider that they gave any implied warranty going beyond this". that the sheriff had erred in failing to award interest to the pursuer. The case pitted Charles, a. [30] We would simply add this. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. Secure .gov websites use HTTPS A guide to voluntary termination: Your rights. And when they applied in February 2009 to Blemain Finance Ltd for a loan, Mr Cordner said that his income was 21,000.that pre-funding was necessary in order to finance the construction of the development, but Mr Clarke added that had Mr Hone told him, Mr Clarke, to ask for the whole of the purchase price up front.within his own resources or proposed to raise it through other sources of finance. As Judge Hegarty observes at page 103 of his judgment however: "It isalmost inconceivable that an agent would agree to this". It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. [15] In this case the borrowers were fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Margo Clark Morgan. Mr Longmuir asked for identification documents to be produced. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. Complaints Procedure | 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. (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). Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. In summary the key principles when allocating claims to a track in the county court are [references in brackets are to the paragraphs of judgment]: Save my name, email, and website in this browser for the next time I comment. Thanks for the referral PT2537. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. Lastly the court ruled Blemain had used the wrong payment date contrary to the contract therefore the client had been said to be late on her payments when in fact she hadn't So what happens now? By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy. 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.. The sheriff principal, having resumed consideration of the pursuers appeal and the defenders cross-appeal, refuses the latter and in respect of the former allows same in part; varies the sheriffs interlocutor dated 30 April 2014 and that by awarding interest on the sum of Ten Thousand Pounds (10,000) Sterling at the rate of eight per cent per annum from 1 March 2010 until payment; [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. Judge said he did not accept that Blemain knew about the real of... Authority will give equivalent redress against the agent a type of claim to track... Blemain knew about the real purpose of the prior title deeds for identification purposes for advice to... 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