He must sign for the loan for the SCF a direct liability guarantee. Even for the self-employed, there are guarantees without a bank. Also in the area of financing, the type of collateral required by the bank depends to a large extent on the nature of the loan. In a recent case, the Bank’s lawsuit against Bailing SCF was dismissed by the Supreme Court (OGH). This means that the guarantor is liable as a debtor and must pay the guarantee amount on first request of the bank – without having a right to object.
Do shareholders have to guarantee a SCF loan?
Dear questioner, on the basis of the information I would like to answer your question as follows: It is common practice for credit institutions to rely on a limited liability company to guarantee that the managing director or (controlling) partner guarantees the loan. This is to avoid the risk that in the case of insolvency of the SCF or insolvency of the loan, the funds of the SCF on the guarantor company “deferred”.
Criminal fraud would only occur if you cheated the house bank of your economic situation and the house bank granted the loan only because of misleading, because it makes the mistake of allowing you to fulfill your guarantee obligations when the guarantee event occurs. In addition, the house bank by the lending would be a financial loss.
This can only be the case if the SCF becomes insolvent.
If there is no evidence of impending insolvency of the SCF and the SCF is usually able to repay the loan according to their economic situation, and asks the house bank you as a guarantor for information or give the house bank no incorrect information in one Self-disclosure, the promise of a guarantee does not constitute a hoax.
The remaining exclusion of claims can be denied by request of a creditor, if you give incorrect or incomplete written information up to three years before applying for a loan application (“§ 290 Abs. 1 Nr. 2 InsO”). This is not the case if you only give a guarantee so that a third party (SCF) gets a loan.
Pursuant to Section 290 (1) (4) of the Regulation, the waiver of the debtor’s debt may be refused if you have deliberately or grossly negligently affected the satisfaction of the creditor in the past year by filing for an insolvency claim by finding unreasonable debts or wasting your assets. This is not the case if, as the majority shareholder of a strong-performing SCF, you have assumed a guarantee that the SCF will receive a loan.
In the event of the assumption of the private insolvency of the managing director, there is the risk that the banks will dissolve (“cancel”) the loans of the SCF affected by the loss of the collateral, provided that no other collateralisation is possible. This could lead to the insolvency of the SCF. In this case, is the manager still not to be attributed an act which leads to the rejection of the remaining debt relief of his own private insolvency?
Dear questioner, if one (or all) credit (s) of the SCF is (are) terminated because of the loss of collateral, because you apply for private insolvency, you can not be deprived of the remaining debt relief for this reason. The same applies if the SCF has to file for insolvency as a result. However, you must make sure that in case of a bankruptcy petition of the SCF everything is in order with the bookkeeping and the financial statements.
If you are finally found guilty of a so-called bankruptcy offense (283 – 283 letter c SGB) – including the failure to comply with the commercial accounting and financial reporting obligation – you must be denied the remaining debt exemption, at the request of a creditor, 290 (1) No. 1 Coll. The same applies if you as a managing partner of the SCF commit one of these crimes.