I was the director of a company in Scotland that has gone bust. The bank is chasing me for payment of a personal guarantee I gave for a loan. The bank does not have a copy of the guarantee document signed by me and cannot prove that it ever received it. I have two questions. Can the bank prosecute me to force payment without producing the signed guarantee document? Can the bank force my solicitor to let it have a copy of the guarantee he has retained?
System of Law: England-and-Wales
Thank you for your question.The bank can sue on the basis of a copy guarantee. It would have to incidentally prove the terms of the personal guarantee and it will have difficulty in doing so if it can't produce even a copy.Secondly, communications between a solicitor and client are confidential and that includes a client file. However, if the bank were to get a court order for recovery of the file, your solicitor would have to lodge the file sealed with the court and marked confidential and then the bank could apply to the court for the file to be unsealed.You don't want to run this risk therefore ask the solicitor to give you any copies of the guarantee that he has.If the bank can't prove that you signed the guarantee then their action will fail.I hope this helps. Please leave a positive response so that I am credited for my time.
27 years as a practising solicitor.
With regard to my previous question, my solicitor (in England) advises me that even if I close my account with him and demand that he surrender my client file, he will retain a copy of the Guarantee. Can he do this and is there anyway I can force him to give me the copy he has retained?
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