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

THE STATE OF NEW HAMPSHIRE

[____________] COUNTY [☐ SUPERIOR COURT / ☐ CIRCUIT COURT — DISTRICT DIVISION]

Docket No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to N.H. Super. Ct. Civ. R. 9 / N.H. Cir. Ct. Dist. Div. R. 3.9

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 files this Answer within the thirty (30) day period prescribed by N.H. Super. Ct. Civ. R. 9(a) / N.H. Cir. Ct. Dist. Div. R. 3.9(a). Defendant asserts only the defenses and objections pleaded below or raised by a timely, separately filed motion; this Answer makes no open-ended reservation that overrides the applicable waiver rules.

2. Filing this Answer does not itself waive a timely challenge to personal jurisdiction, sufficiency of process, or sufficiency of service. Any such challenge must be made by Motion to Dismiss within thirty (30) days after service under N.H. Super. Ct. Civ. R. 9(e) or N.H. Cir. Ct. Dist. Div. R. 3.9(e). Defendant has ☐ filed that motion on [__/__/____] / ☐ determined after counsel review that no such challenge will be made. Other affirmative defenses are stated below or raised by a timely motion as the selected court's rules require.

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. Defendant specifically 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 as discovery proceeds, Defendant asserts the following affirmative defenses. CRITICAL: Under N.H. Cir. Ct. Dist. Div. R. 3.9(d), failure to plead affirmative defenses — including the statute of limitations — within the time allowed constitutes WAIVER of those defenses. Plead every applicable defense in this Answer.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under New Hampshire law, all personal actions, including actions on open accounts and contracts not otherwise specified, must be brought within three (3) years (RSA 508:4). An action for breach of a contract for the sale of goods must be brought within four (4) years (RSA 382-A:2-725), and an action on a negotiable promissory note within six (6) years (RSA 382-A:3-118). 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 and is the real party in interest. 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 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 a Motion to Dismiss.

☐ 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 — Violation of New Hampshire's Unfair Collection Practices Act. Plaintiff and/or its predecessors are "debt collectors" within the broad definition of RSA 358-C:1, VIII — which expressly includes a person who, pursuant to an assignment, sale, or transfer of a claim against a consumer, attempts to enforce that obligation — and have collected or attempted to collect a debt in an unfair, deceptive, or unreasonable manner in violation of RSA 358-C:2 and RSA 358-C:3. [verify any applicable New Hampshire debt-collector or debt-adjustment licensing/registration requirement before relying on a separate licensing defense; New Hampshire regulates collection conduct primarily through RSA 358-C rather than a general collection-agency operating license.]

☐ 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. [verify the controlling New Hampshire statute of frauds provision, e.g., RSA 506:2, and the UCC statute of frauds at RSA 382-A:2-201 for sales of goods.]

☐ 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. (A challenge to personal jurisdiction, sufficiency of process, or sufficiency of service must be raised by Motion to Dismiss within 30 days of service or it is waived; N.H. Cir. Ct. Dist. Div. R. 3.9(e).)

☐ 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.H. 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, subject to leave of court.

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, court-allowed additional damages up to $1,000 in an individual action and, upon a successful action, costs and a reasonable attorney's fee 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 / RSA 358-C 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.H. Const. Pt. I, Art. 20. To preserve the right to a jury trial, this request must appear on the FIRST PAGE of the Answer at the time of filing (N.H. Cir. Ct. Dist. Div. R. 3.9(c)); failure to do so waives the jury.

☐ 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
N.H. Bar No. (if attorney): [____________]
[Street Address]
[City], New Hampshire [____]
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) by the following method:

☐ New Hampshire electronic-filing system (notice to all registered filers; e-service upon registration)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

NEW HAMPSHIRE PRACTICE NOTES

• Answer deadline: 30 days after service in Superior Court (N.H. Super. Ct. Civ. R. 9(a)) and in the Circuit Court — District Division (N.H. Cir. Ct. Dist. Div. R. 3.9(a)); in small claims, a written Response is due 30 days from the date the court mails the Notice of Claim (R. 4.3). An Appearance is required within the same 30 days. Calendar immediately; a default judgment may follow.
• Courts: Larger civil matters go to Superior Court; the Circuit Court — District Division handles smaller civil actions, with a small-claims division up to $10,000. Most consumer-debt suits are in the District Division. Verify current thresholds and the court named on the papers.
• Statute of limitations on debt: general 3-year period for personal actions, open accounts, and contracts (RSA 508:4); sales of goods — 4 years (RSA 382-A:2-725); negotiable promissory notes — 6 years (RSA 382-A:3-118). New Hampshire's 3-year period is comparatively short and frequently bars stale credit-card claims.
• Collection regulation: New Hampshire regulates debt-collection conduct primarily through the Unfair, Deceptive or Unreasonable Collection Practices Act (RSA 358-C), whose definition of "debt collector" expressly reaches assignees and debt buyers (RSA 358-C:1, VIII). Verify any applicable debt-collector or debt-adjustment registration/licensing requirement before asserting a licensing defense.
• State UDAP: RSA 358-C (remedies at RSA 358-C:4) and the Consumer Protection Act, RSA 358-A, may apply; assert FDCPA claims under federal law.
• Affirmative-defense and jury waivers: Affirmative defenses (including the statute of limitations) are WAIVED if not pleaded within the time allowed (R. 3.9(d)); the jury demand must appear on the first page of the Answer (R. 3.9(c)).

Sources and References

• New Hampshire Superior Court Civil Rules: https://www.courts.nh.gov/rules-superior-court
• New Hampshire Circuit Court — District Division Civil Rules (Rule 3.9; Rule 4.3): https://www.courts.nh.gov/rules-circuit-court-state-new-hampshire-district-division
• RSA 508:4 (3-year limitation): https://www.gencourt.state.nh.us/rsa/html/lii/508/508-4.htm
• RSA 358-C (Unfair, Deceptive or Unreasonable Collection Practices Act): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXXI-358-C.htm
• RSA 358-C:4 (Remedies): https://law.justia.com/codes/new-hampshire/title-xxxi/chapter-358-c/section-358-c-4/
• 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/
• 603 Legal Aid — debt collection: https://www.603legalaid.org/debt-collection