Can a personal guarantee be enforceable against a party who has mortgaged their home to secure a loan?

British Columbia, Canada


The following excerpt is from Wilburn Properties Inc. v. Silver Peak Resources Ltd., 2001 BCSC 1084 (CanLII):

Similarly, in Villeneuve v. Turner, [1990] O.J. No. 385 (Q.L.) (Ont. Dist. Ct.) the plaintiffs were only partially successful in enforcing a personal guarantee against a number of defendants. The plaintiffs had mortgaged their home in order to secure a loan for a company the parties were shareholder and directors of. A guarantee was signed making the defendants jointly liable in case the company defaulted in payment of the loan. However, a number of the defendants signed the guarantee after the loan monies had been advanced. The defendants who signed the guarantee after the debt was already in existence were held not to be liable under the guarantee. Another defendant was held liable under the guarantee because, although there was confusion as to whether he signed the guarantee before or after the funds were advanced, he had agreed to give a guarantee before consideration was executed.

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