Exactly what is the distinction in between an “affirmative defense” and a “counterclaim,” and how do they associate with exactly what you might call “plain” defenses in financial obligation lawsuits?

The Problem of Evidence

The primary secret to comprehending the distinctions in defenses is to bear in mind exactly what attorneys call the “problem of evidence.” The problem of evidence uses to whoneeds to show something, and given that couple of things can ever be shown beyond any doubt, how securelyneed to the jury or judge be persuaded of the reality. In a civil trial (which financial obligation cases are) the problem of evidence (at trial) is by “the prevalence.” Think about a set of scales with your proof and the opposite’s proof stabilizing each other. The “prevalence” indicates simply enough to tip the scales one method or another. It’s not a difficult problem, however still the jury should think you instead of the opposite. And ties go to the individual who does not have the problem of evidence.

” Plain” Defenses

Let’s begin with “plain” defenses. Bear in mind that the complainant bears the problem of evidence concerning its case versus you. It should show that you (1) owe some cash, (2) that they are the proper individual you owe it to, (3) that you have actually never ever paid it back, and (4) just how much you owe. To put it in easy terms, if they are suing you for an old charge card financial obligation of $500, they need to show the following: (1) you utilized the charge card to obtain cash or purchase things; (2) they purchased or otherwise obtained the right to pursue you for the cash; (3) that you never ever paid the cash back to the initial lender or another financial obligation collector; and (4) that the overall quantity due is $500 You need to win if they stop working to provide adequate proof on any one or more of these problems. A “plain” defense is merely you declaring in your Response to the claim rejecting one or all these components of the complainant’s case. It bears the problem of evidence as to each challenged accusation when you challenge the financial obligation collector’s claims versus you.

Affirmative Defenses

Expect you wish to argue that although it was your charge card, somebody else fraudulently utilized it to sustain the financial obligation. That may be an “affirmative” defense. An affirmative defense is something that, if real, would avoid the financial obligation from standing versus you even if all the claims of the complainant’s petition hold true The celebration asserting an affirmative defense bears the problem of evidence on it.


A “counterclaim” is a totally various animal. A counterclaim asserts a right versus the celebration suing you. For your counterclaim, you are essentially dealt with as the complainant, and if you win, you need to get some cash. Defenses simply keep you from owing the opposite cash. You will bear the problem of evidence for your counterclaim, and the opposite might provide defenses and affirmative defenses. A counterclaim will not beat theirclaim, although in some sort of cases, such as customer scams cases, counterclaims can function as defenses. In the financial obligation collection context, this is typically not the case. A counterclaim that the financial obligation collector bothered you will notbe a defense versus their claim that you owe them cash. It might, nevertheless, be a better claim, however, and might quickly deserve more cash than their claim versus you.

A possible exception may be the guideline relating to “confirmation.” The Fair Financial obligation Collection Practices Act (FDCPA) needs that if you ask for the financial obligation collector to verify a financial obligation, they need to do so within 30 days and need to not take any more collection activity till they have actually done so. Sometimes offenders have actually utilized the collector’s failure to verify (after a correct demand) as a defense to the case. Undoubtedly that would be extremely short-lived given that it might quickly be corrected.

Also, arguing that the complainant had actually not made a previous need for the cash (however simply sued you out of the blue) is just a technical defense to an agreement claim, as the courts will normally merely deal with the petition itself as the need. On the other hand, in the financial obligation lawsuits arena, if the petition is the very first you have actually spoken with the collector you would still can require confirmation. Precisely how that operates as an affirmative defense and impacts the time-table of the case has actually been much prosecuted and is not yet clear. Once again, it would likely be an extremely short-lived defense, although failure to offer the composed notification of your right to confirmation may be an offense of the FDCPA.


If you are reacting to a claim brought by a financial obligation collector, you will wish to consider your plain defenses, any possible affirmative defenses,andyour counterclaims. They are all different and need to be pleaded (declared) and showed independently.

Leave a Reply