Q: Is the personal guarantee in a corporate credit card "Cardholder Agreement" binding if I did not sign?
My single member LLC (dissolved since 2015) opened a corporate credit card with Bank of America in 2013. I opened the account as the sole officer/member of the LLC and used it strictly for business. The account went into default when my business closed, and was charged off in 2014.
Recently, the bank performed a setoff against my personal checking account (opened in 2011) as partial payment, claiming that I am a personal guarantor of the LLC's credit card. The only relevant documentation they've produced is a copy of the business "Cardholder Agreement" pamphlet, which is mailed along with the credit card. They claim that I consented to the Cardholder Agreement by using the card, thus, I am subject to its broad, blanket guarantor and 'right of setoff' language. (Can't paste it here for lack of space.)
Without a separate signature, would a judge say the guarantee is valid? And if sued, would a judge require them to prove that I otherwise signed/consend to the guarantee?
A:
Their claim may be barred by the Statute of Frauds.
Florida Statute 725.01 provides in pertinent part that:
"No action shall be brought whereby to ... charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person ..., or upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized."
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