Suretyship and Mortgages Flashcards
Guarantor
A guarantor is a person who promises to pay a debtor’s obligation if the debtor defaults, and whom the creditor may approach for payment only after seeking payment from the debtor.
Accommodation party
One who guarantees a debtor’s performance on a promissory note is an accommodation party. An accommodation party incurs liability on the instrument in the capacity in which he signs.
Failure to perfect and accommodation parties.
Impairing the value of the collateral that secures an instrument discharges an accommodation party to the extent of the impairment. Failure to perfect a security interest in collateral impairs its value, because perfection maximizes the creditor’s rights in the collateral and puts others on notice of the security interest.
Guarantor of collection
A guarantor of collection becomes liable on the instrument only if:
- execution of a judgment against the debtor has been returned unsatisfied;
- the debtor is insolvent; or
- it otherwise appears that it is useless to proceed against the debtor.
Subrogation
Under a surety’s right to subrogation, the surety may step into the shoes of the creditor. Therefore, all of the remedies that the creditor could have used against the principal, the surety can use if he has paid the debt in full.
Consideration in surety contracts
Virginia law indicates that consideration is not required in order to obtain a guaranty of a loan.
Alteration in instrument
Virginia law states that an “alteration” is an unauthorized change in an instrument that purports to modify the obligation of a party, or an unauthorized addition of words or numbers relating to the obligation of a party. In addition, an alteration that is fraudulently made discharges a party whose obligation is affected by the alteration. No other alteration discharges a party and the instrument may be enforced according to its original terms.
If not material, correcting a typographical error, not an “alteration.”
Enforcement of incomplete instrument
Under Article 3 of the UCC, an incomplete instrument may be enforced according to its incomplete terms or as augmented by authorized completion.
What happens when a surety makes a promise by signing a negotiable instrument?
He becomes an accommodation party under Article 3
What is a surety?
A person who agrees to be primarily liable for the obligation of another
What is a guarantor?
A person who agrees to be secondarily liable for the obligation of another. His obligation arises only when the debtor defaults
What is a guarantor of collection?
Before creditor can seek recovery from the guarantor of collection, he must exhaust his legal remedies against the principal debtor (sue him, obtain judgment, and try to satisfy that judgment)
Contract interpretation of a surety/guaranty agreement
1) Compensated guarantor/surety: usual rules of contract interpretation 2) Gratuitous guarantor/surety: promise will be construed in favor of the surety
Is a suretyship contract subject to the SOF?
Yes, subject to the main purpose exception
Main purpose exception to SOF requirement
No writing is necessary if the main purpose of the surety’s promise is to benefit the surety