Defenses, Affirmative Defenses and Counterclaims in Debt Litigation

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 you might call “plain” defenses in debt litigation?

The Burden of Proof

The main meaningful 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 ever be proven beyond any doubt, how firmly must the jury or estimate be convinced of the fact. In a civil trial (which debt situations are) the burden of proof (at trial) is by “the preponderance.” Consider a set of scales with your evidence and the other side’s evidence balancing each other. The “preponderance” method just enough to tip the scales one way or another. It’s not a hard burden, but nevertheless the jury must believe you instead of the other side. And ties go to the person who does not have the burden of proof.

“Plain” Defenses

Let’s start with “plain” defenses. Remember that the plaintiff produces the burden of proof regarding its case against you. It must prove that you (1) owe some money, (2) that they are the correct person you owe it to, (3) that you have never paid it back, and (4) how much you owe. To put it in simple terms, if they are suing you for an old credit card debt of $500, they must prove the following: (1) you used the credit card to borrow money or buy stuff; (2) they bought or otherwise acquired the right to go after 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 fail to present enough evidence on any one or more of these issues, you should win. A “plain” defense is simply you alleging in your Answer to the lawsuit denying one or all of these elements of the plaintiff’s case. Once you argument the debt collector’s allegations against you, it produces the burden of proof as to each disputed allegation.

Affirmative Defenses

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


A “counterclaim” is an thoroughly different animal. A counterclaim asserts a right against the party suing you. For your counterclaim, you are basically treated as the plaintiff, and if you win, you should get some money. Defenses merely keep you from owing the other side money. You will bear the burden of proof for your counterclaim, and the other side may present defenses and affirmative defenses. A counterclaim will not defeat their claim, although in some kinds of situations, such as consumer fraud situations, counterclaims can double as defenses. In the debt collection context, this is generally not the case. A counterclaim that the debt collector harassed you will not be a defense against their claim that you owe them money. It might, however, be a more valuable claim, though, and could easily be worth more money than their claim against you.

A possible exception might be the rule regarding “verification.” The Fair Debt Collection Practices Act (FDCPA) requires that if you request the debt collector to validate a debt, they must do so within 30 days and must not take any further collection activity until they have done so. In some situations defendants have used the collector’s failure to validate (after a proper request) as a defense to the case. clearly that would be very permanent since it could easily be remedied.

Likewise, arguing that the plaintiff had not made a prior need for the money (but just sued you out of the blue) is only a technical defense to a contract claim, as the courts will usually simply treat the appeal itself as the need. however, in the debt litigation arena, if the appeal is the first you have heard from the collector you would nevertheless have the right to need verification. Exactly how that roles as an affirmative defense and affects the time-table of the case has been much litigated and is not in addition clear. Again, it would likely be a very permanent defense, although failure to provide the written notice of your right to verification might be a violation of the FDCPA.


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

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