Sequencing collection against the borrower and the guarantor.
Esshaki Legal Media TeamCurrent as of May 2025
When a credit defaults, the order in which a lender pursues the borrower, the
collateral and the guarantors is a strategic decision with legal consequences.
Absolute and unconditional guaranties permit suit against the guarantor
without first pursuing the borrower or the collateral. Where the guaranty is one
of collection rather than of payment, exhaustion is required.
One-action rules and anti-deficiency statutes in several states restrict the
sequence — requiring the lender to proceed against real property collateral
first, or barring a deficiency after a non-judicial sale. Suing the guarantor
first in such a state can extinguish the claim entirely.
Commercially reasonable disposition of personal property collateral is
required, and a failure reduces or eliminates the deficiency. Guarantors have
standing to raise it.
Fair value credit. Many states require the deficiency to be measured against
the property’s fair value rather than the foreclosure sale price, determined by
appraisal in a hearing.
Guarantor defenses preserved despite waivers, including those the statute
makes non-waivable.
Practical sequencing. Obtain a judgment against solvent guarantors early
while the collateral process runs, subject to the state’s restrictions, because
guarantors reorganize their affairs during a long foreclosure.