Loan guidelines
Dear Mrs Macaulay,
I have some questions about borrowing a loan.
1) If a borrower has been delinquent from 2018 and it’s now 2024, what measures can be taken for repayment? 2) Can a bailiff can post a picture of a delinquent borrower in the media, even though the borrower did not sign that in their contract? 3) Can a bailiff threaten a borrower?
I must first state that it is advisable for anyone who is thinking of applying for a loan or guaranteeing one, to seek the advice of a lawyer and/or accountant, so that the person understands all the implications, their exact obligations, and their entitlements for the duration of the contract, as well as those of the lender. Some people who have borrowed a relatively small sum have found themselves, when their repayments were irregular and their arrears and the interest thereon built up, to be owing several times more than the principal sum they had borrowed. They’re then placed in an impossible financial position. So it is prudent for those contemplating entering into a loan contract to obtain proper legal and accounting advice before signing on the dotted line.
Everyone who is to sign a contract is entitled to be given a copy of the drafted contract to peruse and analyse the terms included, and determine if they are within the law and fair and equitable.
Now let me deal with your questions as I understand them:-
First, what did the lender do during the delinquent years? Did they send demands for repayments throughout these years? Did they send detailed accounts to the borrower with the demands which contained all the required details? Has the period of limitations expired? Did the borrower demand that the lender supply the particulars of the loan and they failed to provide this? Did the lender suggest to the borrower that a new loan agreement be signed encompassing the arrears and any further sum which could be borrowed to defray the old loan? Has the lender filed a claim in court for the repayment of the principal sum and the interest due on it which are in arrears? Did the lender go after the guarantor for the repayment of the full indebtedness?
All these which I have put as questions can be asked by the lender and the borrower in the circumstances of the existence of arrears. As most are clear, I just wish to add to the one regarding the borrower demanding particulars of the loan from the lender. The lender must respond to the demand within a reasonable time and the particulars must contain the terms of the contract, the amounts already repaid, the amounts still due and unpaid with the relevant due dates and the interests which accrued thereon, and on which dates. The lender must also provide to the borrower all relevant documents relating to the loan and any security held on it upon the borrower agreeing to pay for the copies. If the lender fails to respond and send the particulars demanded within a reasonable time and without a reasonable excuse, the lender could lose the capacity to recover any sum due on the contract while it is in default. So, once the borrower demands such particulars, the lender must comply.
The lender has the right to take the borrower to court or claim the entire sum due and owing from the guarantor, and if this person fails to pay, then the lender can take the guarantor to court for what is due and owing on the loan agreement on the failure of the borrower to pay. The guarantor can in such a circumstances, if sued, apply to join the borrower in the case, or they can sue the borrower after the case for what the whole thing cost them.
The lender must of course show the court that they have not charged any compound interest and that they handled the whole transaction legally, equitably and reasonably, otherwise their claim can be thrown out by the court and costs awarded against them.
Secondly, the short answer to the bailiff question is no. The bailiff has to act according to the legal and regulatory provisions which apply to the conduct of their work and pursuant to the orders of the court in its judgements and orders. The posting of a person’s picture without their consent and without a lawful order so to do, is unconstitutional and illegal and actionable against the bailiff for damages for the breach of their right of privacy.
And it is also illegal for anyone to threaten anyone, and a bailiff is not exempt from this legal stricture. Not only can a criminal complaint be laid against such a bailiff, but he can and should lose his position in such a service.
I think I have answered all your questions and I hope that I have clarified the positions for you.
Remember, do not sign a contract without seeking and obtaining proper legal and financial advice, and especially with any loan contract, which could have dire consequences on your financial status and your entire future life.
All the very best.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2
Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
