Answer to Debt Collection Lawsuit (with FDCPA Affirmative Defenses) - Arkansas

IN THE [____________] COURT OF [____________] COUNTY, ARKANSAS

Case No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Ark. R. Civ. P. 8 and 12

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and for Defendant's Answer to the Complaint filed by Plaintiff, [____________] ("Plaintiff"), states as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant timely files this Answer within the thirty (30) day period prescribed by Ark. R. Civ. P. 12(a)(1). Defendant reserves all rights, defenses, and objections available under the Arkansas Rules of Civil Procedure, including those enumerated in Rule 12(b).

2. By filing this Answer, Defendant does not admit that Plaintiff has stated a claim upon which relief may be granted, that Plaintiff owns or has standing to sue upon the alleged debt, that this Court has personal jurisdiction over Defendant, or that venue is proper. Defendant expressly preserves the right to raise any applicable motion, defense, or objection.

3. Defendant does not have possession of the underlying account documents and demands that Plaintiff produce strict legal proof of each element of its claim, including the existence, ownership, amount, and enforceability of the alleged debt.

II. RESPONSES TO THE NUMBERED ALLEGATIONS

4. Paragraph 1 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

5. Paragraph 2 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

6. Paragraph 3 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

7. Paragraph 4 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

8. Paragraph 5 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

9. Paragraph [____] of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

10. Pursuant to Ark. R. Civ. P. 8(b), Defendant denies each and every allegation of the Complaint not expressly admitted above and demands strict proof thereof.

III. AFFIRMATIVE DEFENSES

Without assuming any burden of proof not imposed on Defendant by law, and expressly reserving the right to amend or supplement under Ark. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under Ark. R. Civ. P. 8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to Ark. R. Civ. P. 11.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under Arkansas law, an action to enforce a written obligation must be commenced within five (5) years after the cause of action accrues (Ark. Code § 16-56-111(a)); an action founded on a contract, obligation, or liability not in writing — including an oral agreement, an open account, or an implied contract — must be commenced within three (3) years (Ark. Code § 16-56-105). The alleged debt accrued more than the applicable limitations period before this action was filed, and the claim is time-barred.

☐ Second Defense — Lack of Standing; Failure to Prove Ownership and Chain of Assignment. Plaintiff is not the original creditor and has failed to plead or prove that it owns the alleged debt. Plaintiff must establish a complete, unbroken chain of assignment from the original creditor to Plaintiff, including each bill of sale and assignment document specifically identifying Defendant's account. Absent such proof, Plaintiff is not the real party in interest under Ark. R. Civ. P. 17(a) and lacks standing to bring or maintain this action.

☐ Third Defense — Failure to State a Claim. The Complaint fails to state facts upon which relief can be granted and is subject to dismissal under Ark. R. Civ. P. 12(b)(6).

☐ Fourth Defense — FDCPA Violations; Failure to Validate. Plaintiff and/or its predecessors are "debt collectors" subject to the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and failed to provide the validation notice and verification required by 15 U.S.C. § 1692g and/or engaged in false, deceptive, abusive, or unfair collection practices in violation of 15 U.S.C. §§ 1692d, 1692e, and 1692f, including filing or threatening suit on a time-barred or unverified debt.

☐ Fifth Defense — Plaintiff Not Licensed / Authorized to Collect or Sue in Arkansas. To the extent Plaintiff is required to be registered, bonded, or licensed to engage in the collection of consumer claims in Arkansas, Plaintiff has failed to plead or prove compliance and is therefore barred from maintaining this action. [verify the current licensing/registration requirement applicable to debt buyers and collection agencies in Arkansas; Arkansas does not maintain a comprehensive collection-agency operating-license scheme comparable to some states, and any reliance on this defense must be confirmed against current authority before filing.]

☐ Sixth Defense — Payment, Accord and Satisfaction, Discharge. The alleged debt has been paid, satisfied, settled, released, discharged (including by discharge in bankruptcy), or otherwise extinguished, in whole or in part.

☐ Seventh Defense — No Account Stated; No Agreement to the Balance. Defendant never received, reviewed, or assented to the balance alleged, and never agreed that the stated sum was a true and correct statement of the account. The elements of an account stated are not satisfied.

☐ Eighth Defense — Statute of Frauds. To the extent Plaintiff relies on an agreement required to be in writing, the claim is barred by the Statute of Frauds, Ark. Code § 4-59-101.

☐ Ninth Defense — Erroneous or Unauthorized Amount; Unauthorized Fees; Usury. The amount claimed is incorrect, inflated, or includes interest, fees, or charges that were not authorized by any agreement, are unconscionable, or are usurious under Ark. Const. Art. 19, § 13. Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Tenth Defense — Improper Service / Lack of Personal Jurisdiction. Service of process was insufficient or defective, and/or this Court lacks personal jurisdiction over Defendant. Ark. R. Civ. P. 12(b)(2), (4), (5).

☐ Eleventh Defense — Failure to Mitigate. Plaintiff and/or its predecessors failed to take reasonable steps to mitigate the damages alleged.

☐ Twelfth Defense — Hearsay; Lack of Foundation for Account Records. Plaintiff's account records, affidavits, and computer printouts are inadmissible hearsay and lack the foundation required for the business-records exception under Ark. R. Evid. 803(6). Plaintiff cannot establish the records through a witness with personal knowledge of the original creditor's record-keeping practices, and "robo-signed" affidavits are insufficient.

☐ Thirteenth Defense — Reservation of Right to Amend. Defendant reserves the right to assert additional affirmative defenses, counterclaims, cross-claims, or third-party claims that become known through investigation or discovery, consistent with Ark. R. Civ. P. 15.

IV. DEMAND FOR DOCUMENTATION AND STRICT PROOF

11. Defendant demands that, before judgment, Plaintiff produce admissible evidence of each of the following:

a. The signed account agreement, cardholder agreement, or contract under which the alleged debt arose, together with all amendments and change-of-terms notices;

b. A complete set of monthly account statements from inception through charge-off, evidencing the transactions, charges, payments, interest, and fees that make up the balance claimed;

c. An itemization of the principal, interest, fees, and other charges comprising the amount demanded, with the contractual or statutory authority for each charge;

d. The complete chain of title to the alleged debt — every bill of sale, assignment, and account-transfer document from the original creditor through each intermediate owner to Plaintiff — together with the specific account-level data showing Defendant's account was among those transferred; and

e. Proof that Plaintiff is the present owner and real party in interest entitled to enforce the alleged debt.

V. NOTICE OF POTENTIAL FDCPA COUNTERCLAIM

12. Defendant gives notice that the facts of this matter may give rise to a counterclaim against Plaintiff and/or its predecessors under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., including but not limited to claims for actual damages, statutory damages up to $1,000, and attorney's fees and costs under 15 U.S.C. § 1692k, for conduct such as filing suit on a time-barred or unverified debt, failing to provide § 1692g validation, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA counterclaim set forth in the attached/following pleading.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

A. Dismiss Plaintiff's Complaint with prejudice and order that Plaintiff take nothing;

B. Enter judgment in favor of Defendant on all claims;

C. Award Defendant the costs of this action and, to the extent permitted by law or contract, reasonable attorney's fees;

D. Grant Defendant any counterclaim relief asserted herein; and

E. Grant such other and further relief as the Court deems just and proper.

VII. JURY DEMAND

☐ Yes — Defendant demands trial by jury on all issues so triable, pursuant to Ark. R. Civ. P. 38 and Ark. Const. Art. 2, § 7.

☐ No — Defendant does not demand a jury trial at this time.

VIII. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]

[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Arkansas Bar No. (if attorney): [____________]
[Street Address]
[City], Arkansas [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

IX. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Defendant's Answer and Affirmative Defenses upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Ark. R. Civ. P. 5(b), by the following method:

☐ Arkansas Court e-filing system (eFlex / CourtConnect), notice to all counsel of record
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]

[____________________________________]

ARKANSAS PRACTICE NOTES

• Answer deadline: 30 calendar days after service of the summons and complaint (Ark. R. Civ. P. 12(a)(1)) for both resident and nonresident defendants. A default judgment may be entered under Rule 55(a) if no timely answer is filed.
• Courts: Collection agencies, collection agents, and persons in the business of lending money at interest may NOT file in the Small Claims Division of District Court (Ark. Code § 16-17-606). Debt-buyer/collector suits proceed in the District Court civil division or in Circuit Court (general jurisdiction). Confirm the court named in the summons and current jurisdictional limits.
• Statute of limitations on debt: written obligations/instruments in writing — 5 years (Ark. Code § 16-56-111(a)); oral contracts, open accounts, and implied contracts — 3 years (Ark. Code § 16-56-105). Partial payment or written acknowledgment of default can toll/restart the period (§ 16-56-111(b)). Characterization of credit-card debt is litigated; confirm before relying.
• Licensing: Verify the current Arkansas requirement, if any, for debt-buyer/collection-agency licensing or registration before asserting the licensing defense. Arkansas does not maintain a comprehensive operating-license scheme comparable to some states.
• FDCPA counterclaim: A claim arising from the collection of this debt may be compulsory under Ark. R. Civ. P. 13(a). Plead it under federal law (15 U.S.C. § 1692 et seq.).

Sources and References

• Arkansas Rules of Civil Procedure: https://opinions.arcourts.gov/ark/courtrules/en/nav.do
• Ark. Code § 16-56-111 (5-year limitation — written obligations): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-56/subchapter-1/section-16-56-111/
• Ark. Code § 16-56-105 (3-year limitation — oral/open account): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-56/subchapter-1/section-16-56-105/
• Arkansas Attorney General — Guide to Small Claims Court: https://arkansasag.gov/divisions/public-protection/legal-resources/guide-to-small-claims-court/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — debt that is several years old / time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/