Guarantor still liable after the debtor is discharged in Spain: now the bank is claiming from you

The case, in five lines

What is brought

Defence against the claim by the bank or by the fund that acquired the debt: a reply to the demand, opposition to the proceso monitorio (fast-track payment procedure) or to enforcement on the grounds inherent in the debt (payment, amount, limitation, unfair terms, extinction of the guarantee) and, where advisable, a negotiated reduction with a full receipt and release. If you cannot pay, your own insolvency proceedings with an application for discharge.

Before which court

A claim against a guarantor is a civil dispute: the monitorio goes before the Sección Civil del Tribunal de Instancia (civil section of the court of first instance) for your place of residence; a full claim or enforcement, before the competent civil section. Your own insolvency proceedings go before the Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance) in the provincial capital for the place where your centre of main interests lies. Revocation of the debtor's discharge goes before the judge of the debtor's insolvency proceedings. Appeals go to the Audiencia Provincial (Provincial Court of Appeal).

Deadline

Twenty days to oppose the monitorio from the payment order (art. 815.1 LEC, the Civil Procedure Act) and ten days to oppose enforcement from notification of the order authorising it (arts. 556.1 and 557.1 LEC). The bank's claim against you becomes time-barred, absent a special period, five years after performance could be demanded (art. 1964.2 of the Código Civil, the Civil Code); a mortgage action against someone who mortgaged their own property, after twenty years (art. 1964.1); and the declaration of the debtor's insolvency does not interrupt that period as regards the guarantor. Revocation of someone else's discharge may only be sought within the three years following the discharge after liquidation or, where there was a payment plan, the provisional discharge (art. 493.2 TRLC).

Who can bring it

The claimant is the creditor bank or the fund to which it assigned the debt, which must prove the assignment. You are liable as surety, guarantor, joint and several co-debtor or third-party mortgagor (art. 492.1 TRLC). The discharged debtor cannot be pursued for the extinguished debt (art. 490). If the guarantors bound themselves jointly and severally, the bank may proceed against any one of you or against all of you at once (art. 1144 of the Civil Code).

Financial risk

If you let the deadlines pass, enforcement is ordered and your salary, accounts and assets are attached, including any home you mortgaged as security. As a rule, what you pay cannot be recovered from the discharged debtor (art. 492.2 TRLC). Losing the case may lead to an order to pay costs. Signing an acknowledgement of debt may close off defences you have today.

Your relative's discharge does not reach you: the law says so expressly

Art. 492.1 of the texto refundido de la Ley Concursal (TRLC, the consolidated Insolvency Act) leaves no room for doubt: the discharge does not affect the creditors' rights against those jointly and severally liable with the debtor, against the debtor's sureties, guarantors, insurers or third-party mortgagor, or against anyone else who must pay all or part of the discharged debt, and none of them may rely on the discharge the debtor obtained. It makes no difference whether it was granted after liquidation of the estate or with a payment plan: the provision draws no distinction.

This clashes with the idea that a guarantee follows the debt. Art. 1847 of the Código Civil (the Civil Code) says that the surety's obligation is extinguished at the same time as the debtor's, but a discharge does not work like a payment or a release: the affected creditors lose any action to recover from the debtor (art. 490 TRLC), and the debt ceases to be enforceable against the debtor, not against those who guaranteed it. This was one of the readings already set out by the Dirección General de Seguridad Jurídica y Fe Pública (the Directorate-General for Legal Certainty and Public Faith) under the previous Act; art. 492.1 has now turned it into law.

What nobody tells you is that, if your guarantee is joint and several, the bank does not have to share the claim out: it may claim the whole outstanding balance from you, not a portion, and then go after the others for as long as it has not been paid in full (arts. 1137 and 1144 of the Civil Code). And if what you gave was a mortgage over your home to secure someone else's debt, the bank can still enforce it: the third-party mortgagor is on the same list in art. 492.1. The other person's discharge does not reduce your risk; sometimes it concentrates it on you.

What you pay, as a rule, cannot be recovered from the discharged debtor

Under an ordinary guarantee, a surety who pays is entitled to be indemnified by the debtor for the debt, statutory interest and costs (art. 1838 of the Civil Code), and is subrogated to the creditor's rights (art. 1839). A discharge cuts off that route: art. 492.2 TRLC provides that claims for recourse or reimbursement are affected by the discharge on the same terms as the principal claim. If the bank's debt was discharged, so is your right to recover what you paid.

There are exceptions, and they have to be looked for. If your reimbursement claim was itself secured in rem, for example by a mortgage the debtor granted you as counter-security, it is treated as a secured claim (art. 492.2). And if the debt you pay had not been discharged, because it was not dischargeable or because it was left out, payment gives you rights of recourse, reimbursement and subrogation against the debtor and against the other guarantors (art. 494.1). The Tribunal Supremo (Supreme Court), in its judgments 254/2026 and 260/2026 of 18 February, has held that the discharge only covers the claims the debtor listed and that the order identifies: if the loan you guaranteed was not listed, that debt was not discharged.

The other route is revocation. Any affected creditor may ask the judge of the debtor's insolvency proceedings to revoke the discharge if the debtor concealed assets, rights or income, if in the three years following the discharge, or the provisional discharge where there was a payment plan, the debtor's position improves substantially through an inheritance, legacy, gift or gambling so that all or part can be paid, or if a final conviction or penalty is handed down in proceedings that were already under way (art. 493.1 TRLC), and never once those three years have passed (art. 493.2). Since your reimbursement claim is affected by the discharge, you can argue that you are an affected creditor. If you know the discharged debtor has inherited or is hiding assets, the clock is already running.

The benefit of discussion will rarely save you, but read your loan agreement in full

The Civil Code starts from the premise that the surety undertakes to pay if the debtor does not (art. 1822) and that the surety cannot be compelled to pay before all of the debtor's assets have been pursued (art. 1830). That is the beneficio de excusión (benefit of discussion): the bank must exhaust the principal debtor's assets before coming after you. If your guarantee were a simple one and you still had that benefit, it would be your first line of defence.

But art. 1831 excludes it in four cases, and here two or three of them usually apply at once: where the surety expressly waived it, where the surety bound itself jointly and severally with the debtor, and where the debtor is in insolvency proceedings. Bank loan agreements almost always contain a waiver of the benefits of discussion, order and division, together with a joint and several liability clause; if so, your guarantee is governed by the rules on joint and several obligations (art. 1822, second paragraph). And against a discharged debtor the bank no longer has any action to recover that debt (art. 490 TRLC): there are no assets left to pursue.

What does need close reading is the history of the loan. If the bank granted the debtor an extension without your consent, the guarantee is extinguished (art. 1851 of the Civil Code); many loan agreements include advance consent to such extensions, and how far it reaches is argued case by case. And sureties, even joint and several ones, are released if an act of the bank prevents them from being subrogated to its rights, mortgages and preferences (art. 1852), for example if it cancelled a security it held. The impossibility of recovering from the discharged debtor comes from the law, not from an act of the bank, and does not support this argument.

What you can raise against the bank is the debt, not the discharge

A surety may raise against the creditor every defence available to the principal debtor that is inherent in the debt, but not those that are purely personal to the debtor (art. 1853 of the Civil Code). The discharge is a defence personal to the debtor, and art. 492.1 TRLC expressly shuts that door on you. What remains open is everything that concerns the debt itself: whether it exists, how much it is, whether it has been paid, whether it is due and whether its terms are valid.

What nobody tells you: the figure being claimed must deduct everything the bank has already collected in the insolvency proceedings. The price of assets sold in the liquidation, the payments under the plan, the proceeds of enforcing the mortgage: if the security was enforced before the discharge, only the remaining debt was discharged (art. 492 bis.1 TRLC), and that remaining debt is the ceiling of what can be asked of you. Default interest, fees and charges added afterwards are disputed one by one, and if you gave the guarantee as a private individual, unconnected with the business, you may qualify as a consumer and rely on unfair terms, which are also a ground for opposing enforcement (art. 557.1.7.ª LEC).

The other defence is time. The action against you becomes time-barred, absent a special period, five years after performance could be demanded (art. 1964.2 of the Civil Code); for a loan, normally from the acceleration of the debt or from each unpaid instalment, and a transitional rule applies to contracts entered into before October 2015. The Insolvency Act provides that the interruption of limitation produced by the declaration of insolvency has no effect against joint and several co-debtors, sureties and guarantors, so the period as regards you may have kept running while your relative's insolvency proceedings lasted. Every demand addressed to you, and depending on the case any court claim against the debtor, has to be traced, because those may indeed have interrupted it.

Twenty days for the monitorio, ten for enforcement: an unforgiving deadline

The bank or the fund usually starts with a burofax and follows up with a proceso monitorio (fast-track payment procedure) before the Sección Civil del Tribunal de Instancia (civil section of the court of first instance) for your place of residence. The payment order gives you twenty days to pay or to file a written, reasoned objection explaining why you do not owe all or part of the amount (art. 815.1 LEC, the Civil Procedure Act). If you neither pay nor object, enforcement is ordered against you, and what you did not dispute then you will not be able to dispute in later proceedings.

Once you object, the matter is decided in the type of proceedings that corresponds to the amount, and the judgment has the force of res judicata (art. 818.1 LEC). If the amount exceeds 2,000 euros, the objection must be signed by a lawyer and a procurador (court representative); at Managora we provide both, and you grant the power of representation free of charge by appearing before the letrado de la Administración de Justicia (court clerk) at any court office, with no digital certificate. If the bank held a directly enforceable loan agreement and goes straight to enforcement, you have ten days from notification of the order, and the grounds of opposition are a closed list: payment, set-off, overclaiming, limitation and expiry, reduction or extension of time, settlement and unfair terms (art. 557.1 LEC).

Against the judgment in the proceedings that follow the objection, an appeal lies, as a rule, to the Audiencia Provincial (Provincial Court of Appeal); in lower-value oral proceedings (juicio verbal) the law restricts it, and we check that against the amount in your case before starting. The quickest alternative, where there are solid defences, is to negotiate: with limitation, overclaiming or a doubtful clause on the table, a written reduction with a full receipt and release from the guarantee closes the matter without litigation. What you should not do is negotiate without those cards, or sign anything that acknowledges the debt before it has been reviewed.

If you cannot pay, the way out is your own discharge

If the amount is beyond you, you are also a natural person and can apply for your own insolvency proceedings and your own discharge as a debtor in good faith (art. 486 TRLC), either with liquidation of your estate or with a payment plan. The precondition is insolvency: current if you cannot regularly meet your obligations as they fall due, or imminent if you foresee that you will be unable to do so within the next three months (art. 2.3). The law sets no minimum debt, but there must be at least two creditors. The case is heard by the Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance), and from the declaration of insolvency enforcement against your assets is suspended, with exceptions.

Having signed for someone else, out of family loyalty, is not in itself a ground for refusing you the discharge. The grounds that bar it are those in art. 487.1, and the Tribunal Supremo (Supreme Court), in its judgments 259/2026, 261/2026, 262/2026 and 263/2026 of 18 February, has held that good faith is the absence of those grounds, that the judge checks them of their own motion even if nobody objects, and that the debtor bears the burden of providing the information, including the origin of debts that were disproportionate to their income at the time. A guarantee explains exactly that origin, and it is proved with the loan agreement and the history of the loan.

What nobody tells you: the guarantee must appear in your list of creditors even if the bank has not yet claimed from you, because the discharge only covers what is listed (Supreme Court judgments 254/2026 and 260/2026). And if you were also a director of a company whose insolvency was classified as culpable, look at that judgment: having been declared an affected person in the culpable insolvency of a third party in the previous ten years bars the discharge unless you have paid your liability in full (art. 487.1.4.º TRLC), an exclusion the Court of Justice of the European Union upheld in Case C-723/23 (Amilla) of 10 April 2025.

How we run the case, step by step

1. 1

   Do not pay or sign anything yet

   No acknowledgement of debt, no payment plan with the bank, no first payment ‘as a goodwill gesture’: each of these can restart a limitation period or leave you without defences. Keep the burofax or the payment order with its date: if it comes from the court, the deadline is already running.

2. 2

   Gather the loan agreement and the discharge order

   The loan and guarantee agreement, the debtor's discharge order and, where possible, the list of creditors from the debtor's insolvency proceedings. They show what you signed, what you waived and whether the debt now claimed from you was discharged.

3. 3

   Request and review the statement of the debt

   We require the bank or the fund to provide a breakdown of the claim and, if it is a fund, proof of the assignment. We deduct what was collected in the insolvency proceedings and review interest, fees and terms.

4. 4

   Reconstruct the dates that decide the case

   Acceleration of the loan, unpaid instalments, every demand made to you and the date of the discharge order: from these we calculate limitation and the three years for a possible revocation.

5. 5

   Reply and object in time

   We reply in writing to the demand and, if the monitorio or enforcement arrives, we file the objection within twenty or ten days with a lawyer and a procurador. You grant the power of representation free of charge at any court office, with no certificate. With solid defences, we negotiate a reduction with a full receipt.

6. 6

   Assess your own discharge

   If the debt is still beyond you, we prepare your insolvency application with the report, the inventory and a complete list of creditors, guarantee included, and apply for discharge before the Sección de lo Mercantil.

The law that applies

• Arts. 490, 492 y 494 TRLC. Creditors whose claims have been discharged may take no recovery action against the debtor, other than seeking revocation. The discharge does not affect their rights against joint and several co-debtors, sureties, guarantors, insurers and third-party mortgagors, who cannot rely on it; recourse or reimbursement claims are affected like the principal claim, unless secured in rem. Whoever pays a non-dischargeable or undischarged debt acquires rights of recourse, reimbursement and subrogation. BOE-A-2020-4859
• Arts. 489.1.8.º, 492 bis y 493 TRLC. Debt secured in rem is not discharged within the limit of its special preference; if the security was enforced before the discharge, only the remaining debt is discharged. Any affected creditor may seek revocation for concealment, for a substantial improvement through inheritance, legacy, gift or gambling within three years, or for a final conviction or penalty in pending proceedings, never after three years. BOE-A-2020-4859
• Arts. 2, 486 y 487 TRLC. Insolvency proceedings require current or imminent insolvency. Any natural person, whether or not in business, may apply for discharge, with a payment plan or with liquidation, if a debtor in good faith; the Act lists the grounds that bar it, including having been declared an affected person in a third party's culpable insolvency and reckless or negligent borrowing. BOE-A-2020-4859
• Arts. 1137, 1144, 1822, 1830 y 1831 del Código Civil. Joint and several liability must be expressly agreed, and the creditor may then proceed against any or all of the debtors. A surety undertakes to pay if the debtor does not and cannot be compelled to pay without the debtor's assets being pursued first, unless the surety waived that benefit, bound itself jointly and severally, or the debtor is in insolvency proceedings. BOE-A-1889-4763
• Arts. 1847, 1851, 1852 y 1853 del Código Civil. The surety's obligation is extinguished with the debtor's and on the general grounds; an extension granted to the debtor without the surety's consent extinguishes the guarantee; the surety is released if an act of the creditor prevents subrogation to its rights; and the surety may raise defences inherent in the debt, not those purely personal to the debtor. BOE-A-1889-4763
• Arts. 1838 y 1839 del Código Civil. A surety who pays must be indemnified by the debtor for the debt, statutory interest, costs and any damages, and is subrogated to the creditor's rights; after a settlement, the surety cannot claim more than was paid. For a discharged debt, this is displaced by art. 492.2 TRLC. BOE-A-1889-4763
• Art. 1964 del Código Civil. Personal actions without a special period become time-barred five years after performance of the obligation can be demanded, with transitional rules for relationships predating the 2015 reform. BOE-A-1889-4763
• Arts. 556, 557, 815 y 818 LEC. In the monitorio, twenty days to pay or to file a reasoned objection; once objected to, the matter is decided in the appropriate proceedings, with a lawyer and a procurador where the amount requires. Against enforcement, ten days, and where the instrument is not a court decision, only on a closed list of grounds, including payment, overclaiming, limitation and unfair terms. BOE-A-2000-323

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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