Defenses Against Eviction, Debt Collection, and Foreclosure

When you stand to lose your home or livelihood in an eviction, debt collection, or foreclosure case, you must choose your weapons wisely. Choosing the wrong one can leave you vulnerable. What’s more, your opponent is almost always represented by one or more attorneys. So that weapon must be the biggest and best you can find. In litigation, affirmative defenses are like weapons.

You can use them to fight allegations in a complaint. Every complaint has its own set of facts, but certain affirmative defenses are most appropriate for a particular type of claim.  We’ll share some of the main affirmative defenses for eviction, debt collection, and foreclosure cases.

A Quick Overview of Affirmative Defenses

Affirmative defenses are facts that wholly or partially exonerate the behavior of the defendant even if everything the plaintiff says is true. Elements are the basic ingredients needed to prove a claim or an affirmative defense. Elements are stated in the form of facts. Learn more about elements and affirmative defenses in our blog.

Though there is no surefire way to answer this question outside of some serious legal research. You go to your legal case search tool and try to find a case similar to yours and determine which affirmative defenses fit your set of circumstances.

Affirmative Defenses to Eviction Claims

Your landlord wants to kick you out of your rental. What defenses are there? Unlike the other claims in this article, eviction is a speedy process. You must show up in court prepared to argue your case and to have the case kicked up to a higher court. Eviction courts don’t play. So “I didn’t have the money” does not work. Neither does, “I didn’t pay on principle”. Below are some better defenses.

Acceptance of Partial Rent

A tenant who has made partial payments toward rent may use this affirmative defense to counter an eviction. The landlord generally loses the right to evict for nonpayment of rent after accepting a partial payment unless the tenant signed a waiver that eliminated this right.

Constructive Eviction

In some jurisdictions, a tenant could apply this defense when a landlord tries to collect rent for a leased property that was not in a habitable condition.

Failure of the Landlord to Maintain the Premises

This legal claim applies to unpaid rent that was redirected by a tenant to pay for repairs that a landlord failed to do despite being asked to do it in writing. State laws vary in the application of this affirmative defense, so check the laws in your jurisdiction before using this one.

Improper Notice

Landlords must provide written notice according to certain timelines and procedures. Failure to do so enables a tenant to force the landlord to restart an eviction suit.

Retaliatory Eviction

A tenant who is threatened with eviction after reporting property code violations or asking for repairs may potentially block eviction after citing the landlord’s vengeful behavior.

Claim of Ownership

Finally, in the “best defense is a good offense” department, claiming some right to the property can bring an eviction process to a screeching halt. Claiming ownership interest in a property, even if you cannot prove it right now can get the case sent to a higher court. You’ll have more time in your residence.

Affirmative Defenses to Debt Collection Claims

With this claim, you’re typically up against a big company lawyer who is ready to sucker punch you. When you arrive with some affirmative defenses, well, he’s not so eager then. Below are some affirmative defenses to debt collection cases.

Discharge in Bankruptcy

A former debtor sued for an old debt may use the bankruptcy defense if a completed bankruptcy case has already issued a court order erasing the debt.

Violation of the Fair Debt Collection Practices Act

This affirmative defense based on federal law prohibits debt collectors from harassing or threatening debtors. Better still, violations of federal consumer rights statutes provide an opportunity to countersue to recover up to $1,000 in damages per violation.

Fraudulent Credit Card Charges

When a vendor charges a credit card improperly or charges result from card or identity theft, a claim of fraudulent credit card charges could undermine a creditor’s lawsuit.

Inaccurate or Incomplete Credit and Billing Histories

With this defense, the debtor challenges the debt collector to produce the records about the credit account. When a plaintiff cannot provide this evidence, the defendant prevails on his affirmative defenses.

Mistaken Identity

People are sometimes sued for debts belonging to a person with the same or similar name. When using this affirmative defense, the defendant asks the plaintiff to produce documentation related to the debt so that the defendant can prove a lack of a signature and other personally-identifying information.

Payment of the Credit Card Account, in Part or in Full
Did you already pay the debt? Use this when the creditor appears not to have received proper notice of payments. This may also work when a debtor has partially paid a debt but the claim does not reflect this.

Affirmative Defenses to Foreclosure Claims

Even more so than with eviction and debt collection, you’re up against big company lawyers in a foreclosure case. Those lawyers are ready to sucker punch you. Below are some affirmative defenses to fight back as a foreclosure defendant.

Failure of Conditions Precedent
Most mortgages have loads of conditions and requirements built into the contract, especially if a federal home loan is involved. A condition precedent is an event that must happen before a party to a contract is required to do his or her part. If your mortgage company failed to meet one or more conditions precedent before filing suit against you, then you have one or more affirmative defenses.

Failure to Join Indispensable (or Necessary) Party
Foreclosure plaintiffs can be very messy with paperwork. For years, foreclosure companies skipped what had been standards for the exchange of property and proof of ownership. If there is no clear line of ownership, the party you made the deal with may still have rights to the property. You could still owe them! So in your affirmative defense, state that they must be brought into the case.

Violation of the Fair Debt Collection Practices Act
Like debt collection cases, foreclosure cases can also be susceptible to violations of consumer rights laws.

Inaccurate or Incomplete Billing Histories
As in debt collection cases, foreclosure defendants can use affirmative defenses to challenge the creditor’s records about the mortgage.

No Standing to Sue
Through an affirmative defense, a foreclosure defendant can challenge the bank or mortgage company’s legal ownership of the property.

What are your biggest and best weapons against eviction, debt collection, and foreclosure? If they’re not here, we encourage you to seek them out so that when you show up in court with a case full of affirmative defenses and, of course, a court reporter, you will be a force to reckon with.

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