Defenses, Affirmative Defenses and Counterclaims in Debt Litigation | Nara

What’s the distinction between an “affirmative protection” and a “counterclaim,” and the way do they relate to what you would possibly name “plain” defenses in debt litigation?

The Burden of Proof

The principle key to understanding the variations in defenses is to recollect what legal professionals name the “burden of proof.” The burden of proof applies to who has to show one thing, and since few issues can ever be confirmed past any doubt, how firmly should the jury or choose be satisfied of the very fact. In a civil trial (which debt circumstances are) the burden of proof (at trial) is by “the preponderance.” Contemplate a set of scales along with your proof and the opposite aspect’s proof balancing one another. The “preponderance” means simply sufficient to tip the scales a method or one other. It is not a tough burden, however nonetheless the jury should consider you moderately than the opposite aspect. And ties go to the one who doesn’t have the burden of proof.

“Plain” Defenses

Let’s begin with “plain” defenses. Do not forget that the plaintiff bears the burden of proof relating to its case towards you. It should show that you just (1) owe some cash, (2) that they’re the right individual you owe it to, (3) that you’ve got by no means paid it again, and (4) how a lot you owe. To place it in easy phrases, if they’re suing you for an previous bank card debt of $500, they need to show the next: (1) you used the bank card to borrow cash or purchase stuff; (2) they purchased or in any other case acquired the suitable to go after you for the cash; (3) that you just by no means paid the cash again to the unique creditor or one other debt collector; and (4) that the overall quantity due is $500. In the event that they fail to current sufficient proof on any a number of of those points, it is best to win. A “plain” protection is solely you alleging in your Reply to the lawsuit denying one or all of those parts of the plaintiff’s case. When you dispute the debt collector’s allegations towards you, it bears the burden of proof as to every disputed allegation.

Affirmative Defenses

Suppose you wish to argue that though it was your bank card, another person fraudulently used it to incur the debt. That may be an “affirmative” protection. An affirmative protection is one thing that, if true, would forestall the debt from being legitimate towards you even when all of the allegations of the plaintiff’s petition are true. The occasion asserting an affirmative protection bears the burden of proof on it.


A “counterclaim” is a completely totally different animal. A counterclaim asserts a proper towards the occasion suing you. On your counterclaim, you might be mainly handled because the plaintiff, and if you happen to win, it is best to get some cash. Defenses merely preserve you from owing the opposite aspect cash. You’ll bear the burden of proof in your counterclaim, and the opposite aspect could current defenses and affirmative defenses. A counterclaim won’t defeat their declare, though in some sorts of circumstances, equivalent to client fraud circumstances, counterclaims can double as defenses. Within the debt assortment context, that is usually not the case. A counterclaim that the debt collector harassed you’ll not be a protection towards their declare that you just owe them cash. It’d, nonetheless, be a extra invaluable declare, although, and will simply be value extra money than their declare towards you.

A attainable exception may be the rule relating to “verification.” The Honest Debt Assortment Practices Act (FDCPA) requires that if you happen to request the debt collector to validate a debt, they need to achieve this inside 30 days and should not take any additional assortment exercise till they’ve completed so. In some circumstances defendants have used the collector’s failure to validate (after a correct request) as a protection to the case. Clearly that may be very momentary because it may simply be remedied.

Likewise, arguing that the plaintiff had not made a previous demand for the cash (however simply sued you out of the blue) is barely a technical protection to a contract declare, because the courts will normally merely deal with the petition itself because the demand. Then again, within the debt litigation enviornment, if the petition is the primary you’ve gotten heard from the collector you’d nonetheless have the suitable to demand verification. Precisely how that features as an affirmative protection and impacts the time-table of the case has been a lot litigated and isn’t but clear. Once more, it will probably be a really momentary protection, though failure to supply the written discover of your proper to verification may be a violation of the FDCPA.


In case you are responding to a lawsuit introduced by a debt collector, you’ll want to take into account your plain defenses, any attainable affirmative defenses, and your counterclaims. They’re all separate and have to be pleaded (alleged) and proved individually.

Source by Kenneth Gibert

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