Dear Mrs Macaulay,
One of my siblings apparently took out a loan and used my mother as guarantor without her knowledge. At some point he told her he was taking out an insurance policy and asked that she send a picture of her ID to him, which she did. She, however, did not sign any loan document at any point, nor did she receive as much as a call from any loan entity prior to his getting the loan.
A few days ago my mom was contacted by a debt management company to say that my sibling had taken out a loan and used her as a guarantor, and if he could not pay $50,000 the following day then they would come to my mother's house and take away her things.
I ensured that she had a correct address for my sibling, and advised her to give it to them should they call again. My questions are, is it legal for my mother's furniture/appliances, etc to be taken away because she is allegedly listed as a guarantor, albeit without her knowledge? What course of action can be taken to protect my mom?
I note the fact that you are concerned for your mother who acted in an ill-advised way when she sent her son her picture ID. Surely she must have known that there was no need for her identity to be confirmed for her to be named as a beneficiary in an insurance policy! From what you have stated it is clear that your brother committed a fraud on your mother and an act of forgery. You see, he would have had to sign as your mother as the guarantor, which would be a forgery.
You have asked if the debt collectors can legally just go and take your mother's furniture/appliances. Well, the short answer to that is no. They must first seek to get paid from the actual debtor and when all fails in that direction, then they can seek to claim it from the guarantor. Since your mother clearly never appeared in person and signed the documents as guarantor, she should ask for a copy of the document(s) she purportedly signed and check the signature(s). It could be that the forgery may be obvious to the naked eye and, if not, she can have it checked by a handwriting expert who can give their opinion on it in writing. However, the first thing she must do is deny in writing to the collectors if they get around to writing to her about the claim; or on the phone if they call again. She should make a note of the date and time of the call and what they said to her and she to them.
She must not, if they ever turn up at her house purporting to be there to collect goods, let them into her house. She must shut the door quickly and tell them she never signed any document for a loan. If they push their way in she must call the police and report a home invasion. They would be trespassers. They only way, following her denial, that they can enter her house and take goods is if they have a court order against her. And they cannot have that unless they make their claim against her in a court of law and serve her with the claim documents. If that happens, she must, I repeat must, then go to court and contest their claim by denying that she had signed as guarantor.
You should be aware that what your sibling did is a criminal offence; this in addition to the fact of utter disrespect for his mother. If he truly cared he would have kept servicing the loan until it was paid off and she would never have known of his fraud upon her. Your mother may not want any criminal liability to fall on him. If this is so, then the debt would have to be paid, plus expenses.
So please let your mother understand what she must do to protect herself. It is more than likely that her contest of their claim in the civil courts will not result in the matter being reported for any criminal action to be taken against your sibling. She therefore has to decide what she wants to do. You can, of course, put pressure on your sibling to pay his debt and remove its burden from his mother.
All the very best to your mother.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.