After a suit is filed against a debtor to collect upon a debt, the defendant will file an Answer which may include ” affirmative defenses ” or ” counterclaims. ” These allegations must be handled with vigilance from the onset to attempt successful recovery in the litigation.
An ” affirmative defense ” is a defense to a law suit which must be proved by the defendant. Examples of affirmative defenses would include, e.g., bankruptcy, statute of limitations, improper service, and accord and satisfaction. The notion is that those types of defenses would likely be determinative to the claim. Therefore, the defendant must assert them in the Answer so as not to “surprise” the plaintiff-creditor at the time of trial. Some affirmative defenses must be asserted either pre-Answer or in the Answer, or they are deemed waived by the defendant. After receipt of the Answer, the plaintiff’s counsel should scan the Answer to identify any affirmative defenses and assess their viability. To the extent that an affirmative defense seems frivolous, meritless, or superfluous, an appropriate motion to dismiss the affirmative defense should be made sooner rather than later. The court will then determine whether to sustain the affirmative defense or dismiss it from the onset of the litigation.
As to any counterclaims which may be asserted in the Answer, a careful review must take place as to whether it relates to the matter complained of in the complaint, or relates to a separate matter. Sometimes, the plaintiff will have an insurance policy which covers the counterclaim, and the insurance company will provide a defense to the counterclaim separate from the prosecution of the underlying suit. If it is deemed that the counterclaim “fails to state a valid cause of action,” then an appropriate motion may be brought to dismiss the same.
