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When is an SBA Guarantee Legally Unenforceable
Book a Consultation CallObtaining commercial financing is one of the most difficult challenges facing small businesses. Many small businesses turn to SBA loan programs to finance their businesses.
Without adequate sources of collateral, the participating SBA lender and the SBA always require a personal guarantee before it agrees to approve a loan to the small business. While SBA lenders, banks, financing companies, or other SBA loan underwriters attempt to collect on a personal guarantee, there are certain circumstances where the SBA personal guarantee agreement may be legally unenforceable.
An SBA personal guarantee is a promise to pay a debt for another –which is usually the small business borrower. The SBA personal guarantor is the person making the promise – who is usually a member or shareholder of the small business borrower seeking the SBA loan. SBA Standard Operating Procedures (SOPs) state that participating SBA lenders are required to obtain the personal guarantees of individuals owning at least 20% of a small business’s interest or shares.
When you sign an SBA personal guarantee on behalf of an eligible small business, you agree to be personally responsible for repaying that SBA debt in the event the small business later becomes insolvent. For example: your small business manufactures and sells widgets, and it needs commercial equipment to do so. You go to an SBA lender and obtain financing for the commercial equipment, and part of the financing agreement contains an SBA personal guarantee. Sometime later, due to unexpected circumstances, your small business customers suddenly no longer need your widgets, and your small business fails as a result. If the SBA lender cannot recover the balance of its loan from the assets of your small business, it will then consider suing you personally for the remaining balance pursuant to the SBA personal guarantee you signed.
In other words, when you sign an SBA personal guarantee in order for your small business to receive a loan, you pledge your personal assets as collateral, including your home, the cash in your personal checking account, your savings and investments, and your future wages, which the SBA lender or SBA can try to seize.
SBA personal guarantees are a critical aspect of many SBA loan transactions, so entrepreneurs and small business owners should familiarize themselves with the potential consequences of signing one. In general, to be enforceable, SBA personal guarantee must meet certain criteria.
An SBA personal guarantee must be in writing and it must be signed by the SBA guarantor in the SBA guarantor’s personal capacity.
While this may be obvious, this cannot be overlooked. To be legally enforceable, the signatory to the SBA personal guarantee agreement must sign in his or her personal capacity and not as the “President” or “CEO” of the small business receiving the loan, which is its own legal entity, separate and apart from the people that run and operate it.
An SBA personal guarantee is not legally enforceable without consideration
In fact, no contract is legally enforceable without consideration. An SBA personal guarantee is a type of contract. A contract is an enforceable promise. The legal enforceability of a contract comes from one party’s giving of “consideration” to the other party. Here, the SBA lender gives an SBA-guaranteed loan (the consideration) in exchange for the SBA personal guarantor’s promise to repay it. In a lawsuit to collect a debt, the SBA lender must prove that it has the right to collect the debt, i.e., that it gave the loan (i.e., the consideration) to the debtor. Sometimes, the parties to an SBA loan transaction cannot produce documents showing a right to collect; this may be attributable, at least in part, to the number of times that SBA loans are resold on the secondary market or assigned to other counterparties.
An SBA personal guarantee may be legally unenforceable if it was obtained under fraudulent circumstances or it violates federal law or public policy.
Under certain circumstances, an SBA personal guarantee may be found to legally unenforceable if, for example, it was required from a business owner’s spouse who was not an owner, shareholder, officer or employee of the small business. Obtaining a spousal guarantee under certain circumstances may violate the Equal Credit Opportunity Act (ECOA) and could render the SBA personal guarantee signed by the spouse void.
Can an SBA personal guarantee be revoked?
An otherwise valid and legally enforceable SBA personal guarantee can be revoked in several different ways. An SBA personal guarantee much like any other contract, can be revoked if both the SBA guarantor and the SBA lender agree (with the SBA’s approval) in writing. Some debts owed by SBA personal guarantors can also be discharged in bankruptcy or declared invalid pursuant to court order through litigation.
Many factors can affect the legal enforceability of SBA personal guarantees. If you have any questions about the legal enforceability of an SBA personal guarantee that you are about to sign or have already signed, consult with one of our experienced SBA debt attorneys who can assess your situation and offer thoughtful and practical guidance to assist in your decision.
Contact us today to set up an appointment to discuss your SBA loan issues and problems.
Millions of Dollars in SBA Debts Resolved via Offer in Compromise and Negotiated Repayment Agreements without our Clients filing for Bankruptcy or Facing Home Foreclosure
Millions of Dollars in Treasury Debts Defended Against via AWG Hearings, Treasury Offset Program Resolution, Cross-servicing Disputes, Private Collection Agency Representation, Compromise Offers and Negotiated Repayment Agreements
Our Attorneys are Authorized by the Agency Practice Act to Represent Federal Debtors Nationwide before the SBA, The SBA Office of Hearings and Appeals, the Treasury Department, and the Bureau of Fiscal Service.
Small business sole proprietor obtained an SBA COVID-EIDL loan for $500,000. Client defaulted causing SBA to charge-off the loan, accelerate the balance and refer the debt to Treasury's Bureau of Fiscal Service for aggressive collection. Treasury added $180,000 in collection fees totaling $680,000+. Client tried to negotiate with Treasury but was only offered a 3-year or 10-year repayment plan. Client hired the Firm to represent before the SBA, Treasury and a Private Collection Agency. After securing government records through discovery and reviewing them, we filed an Appeals Petition with the SBA Office of Hearings & Appeals (OHA) court challenging the SBA's referral of the debt to Treasury citing a host of purported violations. The Firm was able to negotiate a reinstatement and recall of the loan back to the SBA, participation in the Hardship Accommodation Plan, termination of Treasury's enforced collection and removal of the statutory collection fees.
Our firm successfully resolved an SBA COVID-19 Economic Injury Disaster Loan (EIDL) default in the amount of $150,000 on behalf of Illinois-based client. After the business permanently closed due to the economic impacts of the pandemic, the owners faced potential personal liability if the business collateral was not liquidated properly under the SBA Security Agreement.
We guided the client through the SBA’s Business Closure Review process, prepared a comprehensive financial submission, and negotiated directly with the SBA to release the collateral securing the loan. The borrower satisfied their collateral obligations with a payment of $2,075, resolving the SBA’s security interest.
Our firm successfully assisted a client in closing an SBA Disaster Loan tied to a COVID-19 Economic Injury Disaster Loan (EIDL). The borrower obtained an EIDL loan of $153,800, but due to the prolonged economic impact of the COVID-19 pandemic, the business was unable to recover and ultimately closed.
As part of the business closure review and audit, we worked closely with the SBA to negotiate a resolution. The borrower was required to pay only $1,625 to release the remaining collateral, effectively closing the matter without further financial liability for the owner/officer.
This case highlights the importance of strategic negotiations when dealing with SBA settlements, particularly for businesses that have shut down due to unforeseen economic challenges. If you or your business are struggling with SBA loan debt, we focus on SBA Offer in Compromise (SBA OIC) solutions to help settle outstanding obligations efficiently.
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