Guarantor forced to repay loan after borrower migrates

Guarantor forced to repay loan after borrower migrates

Margarette MACAULAY

Monday, June 29, 2020

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Dear Mrs Macaulay,

I signed as a guarantor for two loans for my co-worker who now lives in the United States of America and refuses to pay his loan. I am presently paying the credit union monthly for his loan and the only reason the other loan facility has not taken action against me is because I have a loan with them and they are aware that I am not able to pay at this time.

What can I do in this regard because if I sue him, he is not in Jamaica for me to serve the summons and I don't have an address for him overseas.

What an unfortunate situation your kind but ill-conceived acts have placed you in!

You have asked what you can do, as you are now paying this man's loan to the credit union, and when this is cleared, the other loan will be there waiting for you to pay it off.

This is truly dishonourable of him and this illustrates why no one should ignore business prudence because of personal relationships or whatever. Being a guarantor is a truly serious and onerous obligation and ought not to be entered into without sound advice and serious consideration. Even then, one should not agree without taking steps to protect oneself, despite how close the individual may be to the borrower. If the borrower refuses to sign whatever documents are deemed necessary to protect the guarantor, then the only course to be taken is to refuse to guarantee anything.

You seem to feel that there is no point in suing him as he is not in Jamaica and you have no address for him abroad for him to be served.

Well, when you have such a situation it is prudent to go to a lawyer, at some small cost, and seek proper legal advice. You see, if you can find out which city, town and state he resides in, you could file your claim and seek an order of the court for personal service not to be required, and for substituted service to be effected instead by way of (1) the publication of a notice of your claim in a popular local newspaper which you know he used to read and so may still read online; (2) publishing the notice in the most popular daily or community newspaper of the city or town in the state in which he resides abroad. You must also apply for an order that a copy of your processes be also delivered to a member of his family who you know would be in contact with him and therefore he would be bound to find out about your claim.

As an aside, let me just say that in this day and age, we ought to look at the means of substituted service and include the now-existing media as acceptable for this method of service, so it can be more assured that so many dishonourable people will not get away with their wrongful actions.

Anyway, the order you seek will direct how many publications should be made and at what intervals. You will also be required to produce a copy of each publication in the Affidavit of Service, in proof of the obedience of the order for substituted service, and thereafter your claim can proceed to judgement — even if he does not respond to it. You should, if you can, find out in what state, city or town he resides, because you will have years to collect your judgement sum with interest. You can also move against him to collect if he ever comes here, and you can also move against any property he acquires here for an order to sell it. These actions will mean that you will have to be very vigilant and keep checking on him.

There is also the fact that if you do find out where he resides, you can file a claim against him there. This, however, will mean that you would have to obtain legal services there which may be too expensive a step for you to take.

I suggest that you concentrate on trying to find out where he now resides and proceed against him here, and through a substituted service order obtain your judgement and then proceed against him whenever he returns, or against any property he owns here.

I must wish you strength, good planning of action and luck. I am sure you have learned the lesson of never giving a guarantee for anyone.

All the best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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