HomeIn The MediaMy Bank Has Called In Its Loan

My bank has called in its loan

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Source: FT - Fri April 26, 2013

Two years ago I took out a business loan. My business has been repaying it since then, but I made underpayments for three months due to cash-flow difficulties. When I spoke to my bank about these, I was told that there was no problem and it even increased our overdraft limit. The bank has now said it is calling in the loan and using a personal guarantee that would place me in a lot of difficulty.

Where do I stand?

This is sadly typical of cases I see where banks, having the security of a personal guarantee, act in a way that is contrary to the interests of the business, knowing that you, the owner, will ultimately pay. In these situations the wording of the facility documentation and guarantee is crucial.

In this case, the bank appears to have represented to you that it would waive the underpayments and even increased your overdraft facility.

Undoubtedly, the written loan agreement will have a "no waiver" clause. It could be argued, however, that the verbal waiver by the bank manager induced the company to extend its liabilities by an increased overdraft.

This arrangement could amount to a new agreement, one of the terms being that earlier underpayments would not be relied upon to call in the loans. As guarantor, you could argue that the bank has breached the agreement and that the granting of any waiver or further advances to the business discharges your guarantee in its entirety.

However, most bank guarantees are worded in the bank's favour. Cases such as this depend on the particular facts and early advice should be taken. Patrick Selley is a consultant solicitor at Keystone Law


 Patrick Selley

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Profile Patrick Selley

Patrick is an experienced commercial litigator who has taken many cases to trial in the High Court and the Court of Appeal. Patrick strongly believes in using flexible approaches to dispute resolution; he is a qualified mediator and a Fellow of the Chartered Institute of Arbitrators. Previously, Patrick has conducted professional negligence defence work, but he now acts for claimants, particularly against solicitors and financial advisers.

Patrick was admitted as a solicitor in the UK in 1983 and in Hong Kong in 1986.

Patrick is a keen exponent of mediation from the outset having been a director of ADR Net and, with Bond Pearce, a branch founder of the Centre for Mediation in the 1990’s. Trained with both CEDR and ADR Net Patrick has successful experience of many mediations both as mediator and advocate. In addition to his work as a litigator and a mediator, Patrick also runs mediation training courses for non legal professionals.

 

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