Short answer. The creditor is required to ask the court to notify you of the action. Once notified, you may appear and raise defenses available to you. Even if a judgment is entered against both you and the debtor, your right as guarantor to require the creditor to first exhaust the debtor's assets remains intact.
What the law says
In every action by the creditor, which must be against the principal debtor alone, except in the cases mentioned in article 2059, the former shall ask the court to notify the guarantor of the action. The guarantor may appear so that he may, if he so desire, set up such defenses as are granted him by law. The benefit of excussion mentioned in article 2058 shall always be unimpaired, even if judgment should be rendered against the principal debtor and the guarantor in case of appearance by the latter.
Civil Code, Article 2062 — Notice of Action to the Guarantor. Read the full provision →
The creditor must ask the court to notify you
Article 2062 imposes an obligation on the creditor: in any action against the principal debtor, the creditor shall ask the court to notify the guarantor. The action must be directed against the debtor — the guarantor is not a defendant by right — but notification is mandatory. This ensures the guarantor has a chance to participate in the case where the debt will be adjudicated, rather than being bound by a judgment rendered without any opportunity to be heard.
What you can do once notified
Once the court notifies you, you have a choice. You may appear in the case and raise defenses available to you under the law — for example, defenses that would apply to the underlying obligation, or defects in the guaranty itself. Alternatively, you may choose not to appear. The statute says the guarantor "may appear," not that you must. If you have strong defenses to raise, appearing gives you the opportunity to put them on the record while the main case is still pending, rather than having to raise them in a separate proceeding later.
Your right to excussion is protected no matter what
The most important protection in Article 2062 is in its final sentence: even if a judgment is entered against both the debtor and you as guarantor, your right of excussion is always unimpaired. Excussion means the creditor cannot go after you until they have first exhausted all of the debtor's assets and all legal remedies against the debtor. The fact that you appeared in the case and a judgment was entered against you does not allow the creditor to skip the debtor and collect directly from you — they must still try the debtor first.
When the creditor can sue you directly
There are situations where the creditor can bypass the debtor and proceed directly against the guarantor. These include cases where the guarantor expressly renounced the benefit of excussion, where the guarantor bound themselves solidarily with the debtor, where the debtor is insolvent, where the debtor has absconded or cannot be sued in the Philippines, or where execution on the debtor's property would clearly not satisfy the obligation. If your situation falls into one of these exceptions, the normal protection Article 2062 provides may not fully apply, and legal advice about your specific exposure would be appropriate.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Benjamin Bitanga vs. Pyramid Construction Engineering Corporation, G.R. No. 173526, August 28, 2008 — read the decision on LawPhil →
- Pacionara C. Baylon vs. Court of Appeals & Leonila Tomacruz, G.R. No. 109941, August 17, 1999 — read the decision on LawPhil →