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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [____________]

Case No. [____________]
[☐ Limited Civil ☐ Unlimited Civil]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

Filed Pursuant to Cal. Code Civ. Proc. § 431.30

Defendant, [____________] ("Defendant"), appearing [☐ in propria persona / ☐ by and through undersigned counsel], answers the Complaint filed by Plaintiff, [____________] ("Plaintiff"), as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant timely files this Answer within the thirty (30) day period prescribed by Cal. Code Civ. Proc. § 412.20(a)(3). Defendant reserves all rights, defenses, and objections, including the right to demur, to move to strike, or to challenge jurisdiction and venue.

2. By filing this Answer, Defendant does not admit that Plaintiff has stated a cause of action, that Plaintiff owns or has standing to sue upon the alleged debt, or that the amount claimed is correct. Defendant expressly preserves all defenses.

3. Defendant does not have possession of the underlying account documents and demands that Plaintiff produce strict legal proof of each element of its claims, including the existence, ownership, amount, and enforceability of the alleged debt. Defendant reserves the right to serve a demand for a bill of particulars under Cal. Code Civ. Proc. § 454.

II. GENERAL AND SPECIFIC DENIALS

4. ☐ General Denial (unverified complaint). Pursuant to Cal. Code Civ. Proc. § 431.30(d), Defendant generally denies each and every allegation of the Complaint, and the whole thereof, and further denies that Plaintiff has been damaged in any sum or manner whatsoever.

5. ☐ Specific Denials (verified complaint or where required). Defendant responds to the numbered paragraphs of the Complaint as follows:

a. Paragraph 1: [____________]
☐ Admitted ☐ Denied ☐ Defendant lacks sufficient information or belief and on that basis denies the allegation (Cal. Code Civ. Proc. § 431.30(e)).

b. Paragraph 2: [____________]
☐ Admitted ☐ Denied ☐ Defendant lacks sufficient information or belief and on that basis denies the allegation.

c. Paragraph 3: [____________]
☐ Admitted ☐ Denied ☐ Defendant lacks sufficient information or belief and on that basis denies the allegation.

d. Paragraph [____]: [____________]
☐ Admitted ☐ Denied ☐ Defendant lacks sufficient information or belief and on that basis denies the allegation.

III. AFFIRMATIVE DEFENSES

As separate and affirmative defenses, and without conceding that Defendant bears the burden of proof on any matter that is Plaintiff's burden, Defendant alleges as follows, reserving the right to amend under Cal. Code Civ. Proc. § 473. Defendant should assert only those defenses supported by the facts.

☐ First Defense — Statute of Limitations. Each purported cause of action is barred, in whole or in part, by the applicable statute of limitations. An action on a contract, obligation, or liability founded upon a writing must be brought within four (4) years (Cal. Code Civ. Proc. § 337(a)); an action on a book account, an account stated based upon an account in writing, or a balance due on a mutual open and current account must be brought within four (4) years (Cal. Code Civ. Proc. § 337(b)); an action on an oral contract must be brought within two (2) years (Cal. Code Civ. Proc. § 339). The alleged debt accrued more than the applicable period before suit, and under Cal. Code Civ. Proc. § 337(d) a person may not bring suit or initiate an arbitration or other legal proceeding to collect a debt once the limitations period has run.

☐ Second Defense — Lack of Standing; Failure to Prove Ownership and Chain of Assignment. Plaintiff is not the original creditor and has not pleaded or proven 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 (Cal. Code Civ. Proc. § 367) and lacks standing.

☐ Third Defense — Failure to State a Cause of Action. The Complaint, and each purported cause of action, fails to state facts sufficient to constitute a cause of action against Defendant.

☐ Fourth Defense — FDCPA and Rosenthal Act 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 to California's Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. (which incorporates the FDCPA by reference at Civ. Code § 1788.17), and failed to provide the validation required by 15 U.S.C. § 1692g and/or engaged in false, deceptive, abusive, or unfair collection practices, including filing or threatening suit on a time-barred or unverified debt.

☐ Fifth Defense — Plaintiff Not Licensed Under the Debt Collection Licensing Act. Effective under the California Debt Collection Licensing Act, Cal. Fin. Code § 100000 et seq., a "debt collector" — expressly including a debt buyer (Cal. Fin. Code § 100001) — must hold a license issued by the Department of Financial Protection and Innovation to engage in the business of debt collection in California. Plaintiff has failed to plead or prove that it holds a valid license, and is therefore barred from collecting or maintaining this action. [verify Plaintiff's licensure on the NMLS Consumer Access database and confirm any applicable statutory exemption (Cal. Fin. Code § 100001(b)) before relying on this defense.]

☐ 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, Cal. Civ. Code § 1624.

☐ 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 Cal. Const. Art. XV, § 1. 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. Cal. Code Civ. Proc. §§ 418.10, 415.10 et seq.

☐ 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; Improper CCP § 98 Declaration. Plaintiff's account records, affidavits, and computer printouts are inadmissible hearsay and lack the foundation required for the business-records exception (Cal. Evid. Code § 1271). In a limited civil case, any declaration offered in lieu of live testimony under Cal. Code Civ. Proc. § 98 is inadmissible unless served at least 30 days before trial, supported by a current address of the affiant within 150 miles of the place of trial, and the affiant is available for service of process there during the 20 days before trial (see Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844). Plaintiff cannot establish its 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, or cross-complaints that become known through investigation or discovery, consistent with Cal. Code Civ. Proc. § 473.

IV. DEMAND FOR DOCUMENTATION AND STRICT PROOF

6. 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, and that Plaintiff holds a current license under the Debt Collection Licensing Act.

V. NOTICE OF POTENTIAL FDCPA / ROSENTHAL ACT COUNTERCLAIM

7. Defendant gives notice that the facts of this matter may give rise to a cross-complaint or claim against Plaintiff and/or its predecessors under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq., including claims for actual damages, statutory damages (up to $1,000 under 15 U.S.C. § 1692k and up to $1,000 under Cal. Civ. Code § 1788.30(b)), and attorney's fees and costs, for conduct such as filing suit on a time-barred debt (Cal. Code Civ. Proc. § 337(d)), failing to provide § 1692g validation, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no cross-complaint at this time and reserves all rights.
☐ Defendant asserts the FDCPA/Rosenthal Act cross-complaint set forth in the attached/following pleading.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully prays that:

A. Plaintiff take nothing by its Complaint and the Complaint be dismissed with prejudice;

B. Judgment be entered in favor of Defendant on all causes of action;

C. Defendant be awarded the costs of suit and, to the extent permitted by law or contract, reasonable attorney's fees;

D. Defendant be granted any cross-complaint relief asserted herein; and

E. The Court grant such other and further relief as it deems just and proper.

VII. JURY DEMAND

☐ Yes — Defendant demands trial by jury on all issues so triable, pursuant to Cal. Const. Art. I, § 16 and Cal. Code Civ. Proc. § 631.

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

VIII. SIGNATURE

Dated: [__/__/____]

/s/ [____________________________________]

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

IX. PROOF OF SERVICE

I, the undersigned, declare that I am over the age of 18 and not a party to this action. On [__/__/____], I served the foregoing DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) at the address below, by the following method (Cal. Code Civ. Proc. §§ 1013, 1010.6):

☐ U.S. First-Class Mail, postage prepaid
☐ Electronic service through the court's e-filing/e-service system (where authorized)
☐ Personal Delivery
☐ Overnight Delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [____________], California.

/s/ [____________________________________]

[____________________________________]

CALIFORNIA PRACTICE NOTES

• Answer deadline: 30 days after service of the summons and complaint (Cal. Code Civ. Proc. § 412.20(a)(3); see § 430.40 for demurrers). A default may be entered under § 585 if no timely response is filed.
• Court / classification: Superior Court. The case is limited civil if the demand is $35,000 or less, otherwise unlimited civil. The economic-litigation rules (CCP § 90 et seq.), including the § 98 declaration procedure, apply in limited civil. Many debt cases also fall under Cal. Rules of Court, Rule 3.740 ("collections cases"). Verify the current limited-civil threshold.
• Statute of limitations on debt: written contract — 4 years (CCP § 337(a)); book account / account stated based on a writing — 4 years (CCP § 337(b)); oral contract — 2 years (CCP § 339). CCP § 337(d) prohibits bringing suit on a debt after the period has run. AB 1414 (Stats. 2023) excluded consumer debt from the "book account" definition — verify current text.
• Heightened CCP § 98 affidavit issue (limited civil): A creditor's declaration in lieu of live testimony is inadmissible unless the affiant has a current address within 150 miles of the place of trial and is available for service of process there during the 20 days before trial. Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844. This is a frequent and powerful objection against debt-buyer "custodian" declarations.
• Rosenthal Act + DCLA: California has BOTH the Rosenthal Fair Debt Collection Practices Act (Cal. Civ. Code § 1788 et seq., incorporating FDCPA standards at § 1788.17) and the Debt Collection Licensing Act (Cal. Fin. Code § 100000 et seq.), which requires debt collectors and debt buyers to be licensed by the DFPI. Check the plaintiff's license status on NMLS Consumer Access.
• Bill of particulars: On a common count, Defendant may demand a bill of particulars under CCP § 454 to force the creditor to itemize the account.

Sources and References

• Cal. Code Civ. Proc. § 412.20 (time to respond): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=412.20
• Cal. Code Civ. Proc. § 337 (4-year limitation; § 337(d) bar on time-barred suits): https://law.justia.com/codes/california/code-ccp/part-2/title-2/chapter-3/section-337/
• Cal. Code Civ. Proc. § 98 (declaration in lieu of live testimony): https://law.justia.com/codes/california/code-ccp/part-1/title-1/chapter-5-1/article-2/section-98/
• Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=CIV&division=3.&title=1.6C.
• Debt Collection Licensing Act — DFPI: https://dfpi.ca.gov/regulated-industries/debt-collection-licensee/
• Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844 (CCP § 98 affiant availability): https://www.courts.ca.gov/opinions/documents/S243753.PDF
• 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
• California DOJ — Debt Collectors: https://oag.ca.gov/consumers/general/debt-collectors