Affirmative Defense: Your Secret Weapon Against Debt Collectors
Affirmative defenses give you legal grounds to dismiss debt collection lawsuits, even when you technically owe the money. You must list these defenses in your Answer document or you can't use them later. The statute of limitations is the most powerful defense, preventing collectors from suing after your state's deadline expires.
Answer Your LawsuitYou just received notice of a debt lawsuit. Your heart sinks. You feel cornered and overwhelmed.
But here’s something most people don’t know: You have legal defenses available, even if you technically owe the debt.
Don't Let Debt Collectors Win By Default
You have until your Answer deadline to fight back with affirmative defenses. Missing this deadline means automatic judgment against you. Get help building your Answer now.
Respond to Your LawsuitThese are called affirmative defenses. They can get your case dismissed entirely. You just need to know how to use them properly.
What Is an Affirmative Defense in a Civil Case?
An affirmative defense proves you’re not liable for the debt. You’re acknowledging the plaintiff’s claim but providing a valid legal reason why you shouldn’t pay.
The plaintiff normally has the burden of proof. When you use an affirmative defense, that burden shifts to you. You must demonstrate how your defense applies to your case.
The risk is worth it. A strong affirmative defense can result in complete dismissal of your lawsuit.
Most debt collectors don’t expect you to fight back. They count on you ignoring the lawsuit or just paying up. When you stand up for yourself, you often win.
How Private Arbitration Works as a Defense
Private arbitration isn’t technically an affirmative defense. But it works similarly in debt cases.
You signal that you want to move the dispute to private arbitration. The case leaves the court system. Arbitration is expensive for plaintiffs.
In many cases, requesting arbitration leads to dismissal. At minimum, it moves your case out of court.
How Can an Affirmative Defense Help You?
Affirmative defenses work even when you’re technically guilty. If you prove your defense, the judge dismisses the lawsuit against you.
You must fully demonstrate how your defense applies. You’ll answer questions from the plaintiff and judge to substantiate your claim.
Most creditors file lawsuits expecting easy wins. They assume you’ll either pay or ignore the summons. They don’t anticipate a strong defense.
When you effectively use an affirmative defense, you can achieve the best possible outcome: complete case dismissal. Our partner Solo can help you build your defense correctly.
8 Affirmative Defenses for Debt Collection Lawsuits
More than 200 affirmative defenses exist in civil and criminal law. Only some apply to debt collection cases.
Here are the 8 most common affirmative defenses that may help you:
- The statute of limitations has expired
- Someone stole your identity
- You already paid off your debt
- No business relationship exists with the debt collector
- You filed for bankruptcy
- Court officers didn’t serve you properly
- You don’t owe the money as an authorized user
- The debt collector changed the balance
1. The Statute of Limitations Has Expired
The statute of limitations is your first defense to consider. Each state sets a deadline for creditors to sue you for old debt.
The deadline varies by state and debt type. Most range from three to ten years. Kentucky allows up to fifteen years for certain debts.
Credit card debt has different limits than auto loans or promissory notes. You need to check your state’s specific rules.
Debt collectors often buy old debts for pennies on the dollar. Several years may pass before they attempt collection. The statute of limitations may have already expired.
An expired statute can’t stop collectors from calling or sending letters. But it can prevent them from winning a lawsuit against you.
Example: Franklin faces a lawsuit in California for an $800 credit card debt. He doesn’t even remember the debt. After investigating, he discovers the account has been inactive for over six years. California’s statute of limitations for credit card debt is four years. The debt collector has no legal right to sue. Franklin uses the expired statute as an affirmative defense. The case gets dismissed.
Check your state’s statute of limitations on debt immediately. Even if you’re unsure it applies, raise it in your Answer.
2. Someone Stole Your Identity
You receive a lawsuit for a debt you know nothing about. You may be a victim of identity theft.
Identity theft is widespread and damaging. Criminals obtain your Social Security number, name, and address. They use your information to borrow money from lenders.
You should monitor your credit reports regularly. Notify creditors immediately if you spot unfamiliar accounts. Many people only discover theft when a debt collector sues them.
You must follow proper steps to report the theft. Notify both law enforcement and the debt collector. The collector cannot pursue action unless authorities determine no theft occurred.
3. You Already Paid Off Your Debt
Debt collectors rarely sue for paid debts. But mistakes happen. Creditors sometimes fail to update their files properly.
In other cases, you pay the debt before the court date. The collector must dismiss their claims once they receive full payment.
You might negotiate a payment plan or reduced settlement before court. Get any agreement in writing. Use a copy of the agreement to have your case dismissed.
Keep all payment records and settlement agreements. Documentation is your proof against wrongful collection attempts.
4. No Business Relationship Exists With the Debt Collector
You can argue that no business relationship exists between you and the debt collector. This defense works when the party suing you isn’t the original creditor.
Show that your original debt was with another lender. Prove the debt collector is a third party that purchased your debt.
The defense strengthens if the collector increased the balance. Compare the original amount you owed to the amount they’re claiming.
5. You Filed for Bankruptcy
Bankruptcy provides a fresh start when debt becomes overwhelming. Filing prevents most creditors from pursuing legal action against you.
Chapter 7 bankruptcy writes off most debts entirely. Chapter 13 bankruptcy discharges some debts and reorganizes others through a payment plan.
Most debts discharge through bankruptcy. Exceptions include some tax liens and student loans. Debt collectors must comply with bankruptcy rules and accept court-ordered payments.
If you’ve filed bankruptcy, debt collectors cannot sue you for discharged debts. Bankruptcy protection is absolute for included debts.
6. Court Officers Didn’t Serve You Properly
State laws require a sheriff or court officer to deliver your summons directly to you. If they failed to do so, you can argue improper service.
You never received the summons. You were unaware of the lawsuit. The service was legally insufficient.
Improper service doesn’t end collection attempts. The collector can refile their lawsuit and ensure proper service next time. But it does delay the process.
7. You Don’t Owe Money as an Authorized User
People sometimes add authorized users to credit cards or financial accounts. Authorized users can review account information and make payments.
Families often add authorized users for transparency or shared financial management. But authorized users aren’t liable for the debt.
As long as you’re not jointly responsible, collectors cannot sue you. Only account holders bear responsibility for unpaid balances.
8. The Debt Collector Changed the Balance
Debt collectors cannot charge you more than the original balance without your agreement. If they’re suing for an inflated amount, you have grounds to dispute.
When you first hear from a debt collector, require them to validate the amount. Compare their figure to your records.
If the amounts don’t match and they sue anyway, use the documentation in your defense. Proof of balance inflation strengthens your case significantly.
How to Use Affirmative Defenses in Your Answer
You must list your affirmative defenses in your initial response to the lawsuit. Your response is called an Answer.
If you don’t include defenses in your Answer, you can’t bring them up later. Federal Rules of Civil Procedure Rule 8(c) requires you to state affirmative defenses upfront.
The rule lists common affirmative defenses including:
- Statute of limitations
- Payment
- Arbitration and award
- Fraud
- Release
- Waiver
- Statute of frauds
Most people don’t understand these legal terms. You don’t need to navigate this alone.
Our partner Solo helps you determine which affirmative defenses apply to your case. The platform translates them into proper legal language for you.
You simply answer questions about your situation. Your affirmative defenses are automatically generated in the correct legal format.
What to Do Right Now
Don’t ignore your debt lawsuit. Ignoring it leads to default judgment against you.
Don’t assume you have no defense just because you owe money. Multiple affirmative defenses likely apply to your case.
Respond to the lawsuit within your state’s deadline. Most states give you 20-30 days to file your Answer.
Check if the statute of limitations has expired on your debt. Even if you’re unsure, raise it as a defense.
Document everything. Keep records of payments, settlement agreements, and all communication with collectors.
You have more power than you think. Debt collectors count on you staying silent. When you fight back with the right defenses, you often win.