Consumer bankruptcy and debt guarantee

Guaranteeing a debt in a consumer’s bankruptcy has significant consequences for the guarantor. When a debtor decides to declare bankruptcy due to difficulties in repaying loans or credits, there is a risk that the third party providing the guarantee will also be involved in the debt collection process.

Debt surety – bill of exchange or mortgage

In documents related to incurring an obligation (credit/loan), you can sometimes find debt guarantee institutions, which means that there is another person or institution that has guaranteed the debt. Examples of such security may be a bill of exchange or a mortgage on real estate, which makes the guarantor liable for the obligation on an equal basis with the debtor.

Bankruptcy and the creditor’s demand for payment

If bankruptcy is declared, the debtor’s obligations expire, which means that the creditor cannot demand repayment of outstanding amounts from the bankrupt. It is worth remembering that the regulations do not provide for the protection of the guarantor during bankruptcy proceedings, which may pose a serious threat to him.

How much is the guarantor responsible for?

In the light of applicable regulations, the principle of accessory security applies, which means that the scope of the guarantor’s liability depends on the scope of the debtor’s obligation. For example, if the debtor incurred a liability of PLN 50,000, the guarantor is liable up to the same amount. In the light of Art. 491 (15) section 5 of the Bankruptcy Law, establishing a repayment plan does not violate the creditor’s rights towards the guarantor and co-debtors. Even if a repayment plan has been agreed, the creditor can still pursue the security provided by the third party as if no changes had occurred.

Enforcement of receivables from a guarantor

As for enforcement against the guarantor, despite the debtor’s bankruptcy, the receivables covered by the repayment plan do not change. The guarantor is liable to the creditor in accordance with the original content of the obligation, which means that the creditor may continue legal and enforcement proceedings in the full amount of the debt.

Declaration of bankruptcy by the guarantor

If the guarantor finds himself in financial difficulty due to the debt collection process, he may also decide to declare bankruptcy. It is worth considering due diligence when granting a surety, because lack of diligence may result in the court extending the repayment plan period in the event of bankruptcy.

Author:

Grzegorz Streckbein

Advocate

Advocate. He completed his legal studies at the Faculty of Law and Administration of the University of Silesia in Katowice. In his daily practice, he deals primarily with issues related to the day-to-day service of business entities, with particular emphasis on corporate service. His interests also include reorganization and mergers and acquisitions (M&A) matters. He advises management boards and supervisory boards of capital companies.

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