Using Affirmative Defenses in Your Answer to a Debt Lawsuit
Written by: Kristy Welsh
Last Updated: August 21, 2017
Our article entitled Are You Being Sued? Learn How to Answer a Summons and Complaint explains the mechanics of what to do if you are served a Summons and Complaint. An important part of filing your Answer is to include a list of Affirmative Defenses. Affirmative defenses include any defense, in fact or law, which would prevent the Plaintiff from winning the case. These defenses should be listed at the end of your answer after the section where you have responded to each and every individual complaint made by the Plaintiff. Affirmative defenses should always be used when you file your answer with the court. If you do not give them in your answer, you lose the right to bring them up in court later.
Using Affirmative Defenses in Your Answer
You need to look up the rules of civil procedure in your state to see if it is proper to use any of these defenses and customize them to be specific to your state's laws. Many of these defenses will not be relevant to your case and some courts may not allow them. Using the entire list is total overkill, and could make you look like you don't know what you are doing. This could really hurt your case. Please tailor your defenses, DON'T JUST CUT AND PASTE. If you do not understand fully what a defense means, don't use it. You may be asked in court why you chose a particular defense, so be prepared.
Most Common Affirmative Defenses
The following list is by no means an exhausting listing of defenses but rather the most common and useful ones to use in a debt lawsuit. A complete list can be endless and would include any and all defenses you can use which would likely prevent the Plaintiff from winning his case. You need to make sure you not only list your affirmative defense by name but you also add facts to support this defense.
- Statute of Limitations. Suit was brought on after the statutory limit has passed. Most powerful affirmative defense you can have.
- Lack of Standing. Lack of standing is a powerful defense to use. It basically means that a debt collector has no legal basis for filing a suit. No legal basis means that there is no clear ownership of the debt or legal assignment of a debt to a debt collector. This can occur when there is no clear paper trail (a.k.a. chain of custody) in the sale or assignment of a debt from the original creditor to the debt collector.
- Failure to State a Claim Upon Which Relief May be Granted. Either no statute was cited or the complaint fails to state facts sufficient to constitute a cause of action as against this defendant. In general, listing the facts of the case is enough for basis of claim. Use this if the Plaintiff merely says you owe the money and not much else.
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More Affirmative Defenses You Can Use in a Lawsuit
Consider each of the below affirmative defenses to see if they potentially apply to your case. The vast majority of these may not apply to your specific case, but reviewing these may help you brainstorm and think of some other defenses you may be able to use. Again, these are not a "one size fits all" type of defenses, make sure to tailor them to fit your particular case.
- Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.
- Unclean Hands. If the Plaintiff is giving falsified evidence or producing false witnesses, definitely invoke this defense.
- Failure of Consideration. No exchange of money or goods occurred between the Plaintiff and the Defendant. Failure of consideration will void contracts in some cases.
- Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.
- Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.
- Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.
- Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.
- Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.
- Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.
- Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.
- Defendant alleges that Plaintiff's complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.
- Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.
- Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.
- Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.
- Plaintiff has no Fiduciary Duty.
- Plaintiff has failed to name all necessary parties.
- Plaintiff's complaint alleges damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.
- Plaintiff's complaint alleges damages are the result of acts or omissions committed by the Plaintiff.
- Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.
- Plaintiff's complaint alleges damages are limited to real or actual damages only.
- Defendant invokes the Doctrines of Scienti et volenti non fit injuria (a person who knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm without injury).
- Have you sued these folks before and won? If so, include this defense.
- Since under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of action involving a party to the first case, plaintiff's claims are barred.
- Since a court will not grant a judgment or other legal relief to a party who has not acted fairly by having made false representations or concealing material facts from the other party, we maintain that equitable estoppel bars plaintiff's claim.
- Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
Please note: WE ARE NOT ATTORNEYS. If you are being sued, it's always a good idea to hire an attorney or get some legal assistance. If you cannot afford an attorney, a lot of people have handled their cases pro per or without a lawyer. Our articles are meant to provide basic information on handling litigation.