Can Guarantors be sued?

You can sue only the guarantor

If as guarantor you have been executed by your bank in a foreclosure proceeding, you should know that you will be liable with all your present and future assets and waiving the benefit of excusion, since you have almost certainly waived this right when you signed as guarantor of the loan.

Article 1911 of the Civil Code establishes that: “1.- The debtor is liable for the fulfillment of the obligations with all his present and future assets.    Therefore, the joint and several guarantor without benefit of excusion is liable for future debts, just like the debtor, because he has the same obligations as the debtor. This is provided for in the provisions of the Civil Code:

Article 1831. The excusion does not take place: 1st When the guarantor has expressly renounced to it.    2.º When it has been obligated jointly and severally with the debtor. 3.º In the case of bankruptcy or insolvency of the debtor. 4.º When this one cannot be sued judicially within the Kingdom.

Since it has become common practice for banks to initiate foreclosure proceedings against the debtor and his guarantors in the event of non-payment of the mortgage loan, the Order in question determines the procedural inappropriateness of directing the foreclosure against the guarantors, taking into account that in this type of proceedings what is involved is a real action against a mortgaged property, and not a personal action against them.

Obligations of the guarantor

If you are thinking of becoming a guarantor of an obligation, it is necessary that you first study the credit. In this article I will explain what the guarantor’s responsibilities are, what they consist of, when he/she can be charged and when he/she can be excused from his/her obligation.

Accepting to be a guarantor implies becoming a joint and several co-debtor of a certain credit, that is to say, being a debtor for the total amount of the debt and without it being a requirement for the holder of the credit to first sue who we will call the original debtor.

The plaintiff, before initiating an executive lawsuit for the collection of the credit, may decide to go directly against you as guarantor, without you being able to excuse yourself from payment because the original debtor was not sued first. Of course, if your financial situation is better than the debtor’s, the plaintiff will not hesitate to turn against you.

The most important thing before offering generously to guarantee a credit requested by a relative or friend, is to be aware of the implications of this act and above all, to study the possibilities that you will have to pay the credit if for any circumstance the original debtor could not comply in time and form. In this way, you will be able to save yourself from the real nightmare of being forced to pay someone else’s debt, even risking your own assets in case you are not able to pay it.

Who gets foreclosed first, the debtor or the guarantor?

However, on many occasions, the mortgagee, faced with the need to initiate the corresponding foreclosure process for non-payment of the loan secured by the mortgage, files the corresponding lawsuit, in addition to against any of the persons mentioned in the previous paragraph, against the third party who appears as guarantor or joint guarantor, who has provided a personal guarantee, the controversial question being whether or not this third party is passively legitimated to bear the exercise of the action against him.

1. In the first place and as a minority criterion, there are those who consider that in the LEC, since there is no excluding rule in the area of the specialities of mortgage foreclosure in relation to the general provisions of the foreclosure procedure, in this case, art. 538, the conclusion cannot be other than the possibility of suing the guarantors.

The followers of this reasoning consider that art. 685 LEC, although it does not expressly mention the guarantor as a person against whom the foreclosure suit can be directed, does not expressly exclude it either, and since it can be directed against the debtor, without specifying that it must be the principal debtor, it can also be directed against the joint debtors, such as the guarantors, as permitted by the aforementioned art. 538.

Guarantee claim against principal debtor

If the guarantee is simple or indefinite, it guarantees the principal obligation and all its accessories, including legal expenses, responding those that have been generated and always after the debtor has been requested before.

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