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

STATE OF NORTH DAKOTA

COUNTY OF [____________]

IN THE DISTRICT COURT, [____________] JUDICIAL DISTRICT

Case No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to N.D. R. Civ. P. 8 and 12

NOW COMES 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 serves this Answer within the twenty-one (21) day period prescribed by N.D. R. Civ. P. 12(a)(1). Defendant reserves all rights, defenses, and objections available under the North Dakota 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 N.D. 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 N.D. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under N.D. R. Civ. P. 8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to N.D. 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 North Dakota law, an action upon a contract, obligation, or liability, express or implied, must be commenced within six (6) years after the claim for relief has accrued (N.D.C.C. § 28-01-16(1)). The alleged debt accrued more than six years before this action was commenced, 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 N.D. R. Civ. P. 17 and lacks standing to bring or maintain this action.

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

☐ Fourth Defense — Plaintiff Not Licensed as a Collection Agency. No person, other than a collection agency licensed and authorized under N.D.C.C. ch. 13-05, may engage in debt collection in North Dakota where the debtor resides in North Dakota (N.D.C.C. § 13-05-02). The North Dakota Department of Financial Institutions treats passive debt buyers as engaged in "debt collection" requiring licensure (N.D.C.C. § 13-05-01.1(7)), and a person who takes assignment or transfer of a debt that was in default at the time of purchase does not qualify for the creditor exemption and must be licensed to collect. To the extent Plaintiff is required to be licensed under ch. 13-05 and has failed to plead or prove that it holds a North Dakota collection agency license, Plaintiff is barred from maintaining this action. [verify Plaintiff's licensure via the NMLS Consumer Access portal and confirm no exemption applies before relying on this defense.]

☐ Fifth 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.

☐ 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. N.D.C.C. § 9-06-04.

☐ 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. 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. N.D. 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 N.D. R. Ev. 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 N.D. 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, and that Plaintiff holds any collection agency license required under N.D.C.C. ch. 13-05.

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, using false, deceptive, or unfair means to collect, or attempting to collect in North Dakota without the collection agency license required by N.D.C.C. ch. 13-05.

☐ 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 N.D. R. Civ. P. 38 and Article I, Section 13 of the North Dakota Constitution.

☐ 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
North Dakota State Bar Board ID (if attorney): [____________]
[Street Address]
[City], North Dakota [____]
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 N.D. R. Civ. P. 5, by the following method:

☐ North Dakota Odyssey File & Serve (electronic filing; 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/ [____________________________________]
[____________________________________]

NORTH DAKOTA PRACTICE NOTES

• Answer deadline: 21 days after service of the summons and complaint (N.D. R. Civ. P. 12(a)(1)). North Dakota actions are frequently commenced by service before filing; serve the Answer on Plaintiff's counsel and file it with the court. Verify the deadline and calendar it immediately.
• Court: Debt collection actions are heard in the District Court. Verify the proper court and any small claims option on the face of the summons.
• Statute of limitations on debt: 6 years for actions on contracts, obligations, and accounts, including credit card and most consumer debt (N.D.C.C. § 28-01-16(1)); judgments — 10 years (N.D.C.C. § 28-01-15). Confirm the accrual date and any revival issue before relying on this defense.
• Licensing: A collection agency license is required to engage in debt collection where the North Dakota debtor resides (N.D.C.C. § 13-05-02). The Department of Financial Institutions treats passive debt buyers as engaged in debt collection (N.D.C.C. § 13-05-01.1(7)); a buyer of debt that was in default when purchased does NOT qualify for the creditor exemption and must be licensed. Verify Plaintiff's licensure through the NMLS Consumer Access portal before asserting the defense.
• Compulsory counterclaim: An FDCPA claim arising from the collection of this debt may be compulsory under N.D. R. Civ. P. 13(a).

Sources and References

• North Dakota Rules of Civil Procedure: https://www.ndcourts.gov/rules/civil-procedure
• N.D.C.C. § 28-01-16 (6-year limitation): https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-16.html
• N.D.C.C. § 28-01-15 (10-year limitation - judgments): https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-15.html
• N.D.C.C. ch. 13-05 (Collection Agencies): https://law.justia.com/codes/north-dakota/title-13/chapter-13-05/
• N.D. Department of Financial Institutions — Collection Agency FAQs (debt buyers / default-debt exemption): https://www.nd.gov/dfi/about-dfi/non-depository/frequently-asked-questions-non-depository
• NMLS Consumer Access (verify licensure): https://www.nmlsconsumeraccess.org/
• North Dakota Courts — Answering a Debt Collection Summons and Complaint Checklist: https://www.ndcourts.gov/Media/Default/legal-resources/legal-self-help/civil-action/Answering%20a%20Debt%20Collection%20Civil%20SC%20Checklist.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
• 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/