Defenses, affirmative defenses and counterclaims in debt litigation

What is the difference between an “affirmative defense” and a “counterclaim,” and how do they relate to what might be called “straightforward” 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, what firmness Should the jury or judge be convinced of it? In a civil trial (which are the debt cases) the burden of proof (in the trial) is for “preponderance.” Consider a set of scales with your evidence and the other party’s evidence balancing each other. “Preponderance” means enough to tip the balance one way or another. It is not a difficult burden, but still the jury must believe you rather than the other party. And the ties go to the person who does not have the burden of proof.

“Simple” defenses

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

Affirmative defenses

Suppose you want to argue that although it was your credit card, someone else fraudulently used it to incur 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 rests with the burden of proof.


A “counterclaim” is a completely different animal. A counterclaim asserts a right against the party who sues it. For your counterclaim, they basically treat you like the plaintiff and if you win, you should get some money. The defenses simply prevent you from owing money to the other side. You will bear the burden of proving your counterclaim, and the other party can present affirmative defenses and defenses. A counterclaim will not defeat its 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 generally not the case. A counterclaim that the debt collector harassed you not Be a defense against their 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 have done so. In some cases, the defendants have used the failure of the collector to validate (after a proper request) as a defense of the case. Obviously that would be very temporary as it could easily be remedied.

Likewise, arguing that the plaintiff had not made a prior claim for the money (but simply sued it out of nowhere) is just a technical defense to a contract claim, as the courts will generally simply deal with the petition itself. as demand. On the other hand, in the area of ​​debt litigation, if the request is the first you have heard from the collector, you will still have the right to require verification. Exactly how that works as an affirmative defense and how it affects the timing of the case has been heavily litigated and is still unclear. Again, this is likely to be a very temporary defense, although failure to provide written notification of your right to verification could be a violation of the FDCPA.


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