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Affirmative Defenses: You Can Beat the Debt Collectors

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There are several ways in which you can defend a lawsuit filed against you by a credit card company, debt collector, bank, auto finance company and other plaintiffs.  One of those ways is by proving an affirmative defense.

An affirmative defense is different than just defending your lawsuit.  In order for a plaintiff to win a lawsuit against you, they have to prove each of the “elements” of their claim.  For example, in a breach of contract lawsuit, they have to prove the existence of a contract with you (which includes offer, acceptance and valid consideration), that you breached the contract, and that they suffered damages as a result of the breach.  In a traditional defense, you can simply point out that they failed to prove one of those elements with admissible evidence and win your lawsuit.  Click here for a more detailed description of how I, as an experienced Florida debt attorney, can defend your debt collection lawsuit.

But what do you do if the credit card company or other plaintiff can prove its case?  Does that mean you automatically lose and will have a judgment entered against you?  The answer is not necessarily, if you can prove a valid affirmative defense.

An affirmative defense is a defense that essentially provides a reason why you should win even if the plaintiff in a lawsuit can prove its case.  If you prove an affirmative defense, you can win the lawsuit or reduce the amount of money the plaintiff can recover.

One such affirmative defense is the Statute of Limitations.  A Statute of Limitations is a state law that prohibits a plaintiff from winning a lawsuit if they simply wait too long to enforce their rights.  For example, the Statute of Limitations for a breach of contract in Florida can be four years.  If they wait more than four years from the breach of contract, you can assert the affirmative defense of Statute of Limitations and have their lawsuit dismissed.  Click here for an example of a credit card lawsuit against our client that violated the statute of limitations and was dismissed.

Another affirmative defense can arise if you reached a settlement agreement with the credit card company and fully performed your obligations under that agreement.  If they then sue you for the original amount owed before the settlement, you can assert the affirmative defense of Accord and Satisfaction.  That simply means you reached a new agreement that you fully complied with, and they are not entitled to renege on their deal.

Examples of other potential affirmative defenses are:

  • Plaintiff’s failure to attach the contract or other necessary paperwork to the lawsuit complaint
  • Plaintiff’s failure to comply with court rules regarding how they must present their claim and describe
  • An out-of-state Plaintiff’s failure to post the necessary bond with the clerk of the court
  • Being sued on credit card charges that you did not authorize: if you did not authorize the charges (and are not a co-signer for someone else’s account), you are not responsible for the charges
  • Being sued for late fees, over limit charges, collection fees, attorney fees, court costs and other fees and charges, unless those charges are explicitly allowed under the contract or Florida law

There are also many other affirmative defenses, depending on the type of case.  The key point, however, is that you can lose your affirmative defenses if you do not assert them properly and at the right time.  In some cases, these affirmative defenses can also allow you to bring a counterclaim against the debt collector or its attorneys.  In those cases, you may be able to not only win your case, but recover money from the other side.

You should consult with a knowledgeable Florida consumer attorney who is experienced in defending debt collection lawsuits.  If you are located in Central Florida (including Seminole County, Orange County, Lake County, Brevard County, Volusia County or Flagler County), we would be honored if you would call us at 386-444-3032 for a free consultation.  That one call can mean the difference between winning and losing your lawsuit.  Of course, you can also contact us by using our convenient website contact form or by faxing us.  As a Florida debt lawyer, I am committed to pursuing justice on your behalf.