What is the difference between an “affirmative defense” and a “counterclaim” and how do they relate to what you might call “simple” defenses in debt litigation?

The burden of proof

The main key to understanding the differences in defenses is to remember what lawyers call the “burden of proof.” The burden of proof applies to who has to prove something, and since few things can be proven beyond doubt, how firmly must the jury or the judge be convinced of the fact. In a civil trial (which are debt cases) the burden of proof (at trial) is by “preponderance.” Consider a set of scales with your evidence and the other side’s evidence balancing against each other. “Preponderance” means just enough to tip the balance one way or the other. It is not a difficult charge, but the jury must still believe you rather than the other side. And the ties go to those who don’t have the burden of proof.

“Simple” defenses

Let’s start with the “simple” defenses. Remember that the plaintiff has the burden of proof regarding their case against them. You must prove that (1) you owe some money, (2) that it is the right person to owe it to, (3) that you have never paid it back, and (4) how much you owe. To put it simply, if you are being sued for a past $500 credit card debt, they must prove the following: (1) you used the credit card to borrow money or buy things; (2) bought or otherwise acquired the right to pursue you for the money; (3) that you never paid the money back to the original creditor or another debt collector; and (4) that the total amount due is $500. If they don’t present enough evidence on one or more of these issues, you should win. A “simple” defense is simply to allege in your Answer to the Complaint that you deny one or all of these elements of the Plaintiff’s case. Once you dispute the debt collector’s allegations against you, you have the burden of proof for each disputed allegation.

Affirmative Defenses

Suppose you want to argue that even though it was your credit card, someone else used it fraudulently to incur the debt. That could be an “affirmative” defense. An affirmative defense is something that, if true, would prevent the debt from being valid against you even if all the allegations in the plaintiff’s petition are true. The party asserting an affirmative defense has the burden of proof on it.

counterclaims

A “counterclaim” is a completely different animal. A counterclaim asserts a right against the party that is suing you. For your counterclaim, you are essentially treated as the plaintiff, and if you win, you should get some money. Defenses simply prevent you from owing money to the other party. You will bear the burden of proof of your counterclaim, and the other party may present defenses and affirmative defenses. A counterclaim will not expire their claim, although in some types of cases, such as consumer fraud cases, counterclaims can function as defenses. In the context of debt collection, this is often not the case. A counterclaim that the debt collector harassed you No be a defense against your claim that you owe them money. However, it could be a more valuable claim and could easily be worth more money than your claim against you.

One possible exception could be the “verification” rule. The Fair Debt Collection Practices Act (FDCPA) requires that if you ask the debt collector to validate a debt, you must do so within 30 days and you must not engage in any other collection activity until you do so. I’ve done. In some cases, defendants have used the collector’s lack of validation (after a proper request) as a defense of the case. Obviously that would be very temporary as it could be easily remedied.

Likewise, arguing that the plaintiff had not previously made a demand for the money (but instead demanded it out of the blue) is only a technical defense to a contract claim, since courts will generally treat the petition itself as the demand. On the other hand, in the realm of debt litigation, if the petition is the first one you hear from the collector, you would still have the right to demand verification. Exactly how that works as an affirmative defense and affects the timeline of the case has been heavily litigated and remains unclear. Again, this would probably be a very temporary defense, although failure to provide written notice of your right to verification could be a violation of the FDCPA.

conclusion

If you’re responding to a lawsuit brought by a debt collector, you’ll want to consider your simple defenses, any possible affirmative defenses, Y your counterclaims. They are all separate and must be alleged (alleged) and proven separately.