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

[____________] COURT OF THE STATE OF NEW YORK

COUNTY OF [____________]

Index No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to C.P.L.R. 3018, 3211, and the Consumer Credit Fairness Act

Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], answers the Complaint of Plaintiff, [____________] ("Plaintiff"), as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant timely serves this Answer within the time prescribed by C.P.L.R. 320(a) and 3012, that is, twenty (20) days after personal delivery within the State or thirty (30) days where service was made by another method enumerated in those provisions. Defendant reserves all rights, defenses, and objections, including the grounds for dismissal preserved under C.P.L.R. 3211(a).

2. By serving 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, that this Court has personal jurisdiction over Defendant, or that venue is proper. Defendant expressly preserves the right to move under C.P.L.R. 3211 and to assert any applicable defense or objection.

3. This action arises out of a consumer credit transaction within the meaning of the Consumer Credit Fairness Act, and is therefore subject to C.P.L.R. 214-i, 3016(j), 306-d, and 3012(a). Defendant does not have possession of the underlying account documents and demands strict proof of each element of Plaintiff's 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 denies knowledge or information sufficient to form a belief as to the truth of this allegation.

5. Paragraph 2 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant denies knowledge or information sufficient to form a belief as to the truth of this allegation.

6. Paragraph 3 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant denies knowledge or information sufficient to form a belief as to the truth of this allegation.

7. Paragraph 4 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant denies knowledge or information sufficient to form a belief as to the truth of this allegation.

8. Paragraph 5 of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant denies knowledge or information sufficient to form a belief as to the truth of this allegation.

9. Paragraph [____] of the Complaint: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant denies knowledge or information sufficient to form a belief as to the truth of this allegation.

10. Pursuant to C.P.L.R. 3018(a), 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 otherwise imposed by law, and reserving the right to amend under C.P.L.R. 3025 as discovery proceeds, Defendant pleads the following affirmative defenses under C.P.L.R. 3018(b). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may implicate 22 NYCRR Part 130.

☐ First Defense — Statute of Limitations (CCFA Three-Year Period). Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Because this action arises out of a consumer credit transaction, it is governed by the three (3) year limitations period of C.P.L.R. 214-i, enacted by the Consumer Credit Fairness Act and effective April 7, 2022. The alleged debt accrued more than three years before this action was commenced, and the claim is time-barred. C.P.L.R. 3211(a)(5).

☐ Second Defense — Failure to Comply with C.P.L.R. 3016(j) (Heightened Pleading; Failure to Attach the Contract or Charge-Off Statement). The Complaint fails to comply with C.P.L.R. 3016(j), which requires a complaint in a consumer credit action to be accompanied by the contract or charge-off statement and to plead, among other things: the name of the original creditor; the last four digits of the account number; the date and amount of the last payment (or a statement that none was made); an itemization of the amount sought (principal, finance charges, fees, collection costs, attorney's fees, interest, and other charges, or the revolving-account itemization where applicable); the account balance on the most recent monthly statement; and, where Plaintiff is not the original creditor, the date of each sale or assignment and the name of each prior owner. The Complaint is therefore defective and subject to dismissal.

☐ Third Defense — Failure to State a Cause of Action. The Complaint fails to state facts sufficient to constitute a cause of action. C.P.L.R. 3211(a)(7).

☐ Fourth Defense — Disputed Ownership and Assignment. Plaintiff is not the original creditor, and Defendant disputes that Plaintiff owns or may enforce the alleged debt. In a covered consumer-credit action, C.P.L.R. 3016(j)(7) requires the complaint to identify the assignment to Plaintiff and each prior account owner with the required dates. Plaintiff must prove the assignment of this account and its right to recover. State the specific missing pleading facts or disputed transfers here: [FACTS]. C.P.L.R. 3211(a)(3) concerns legal capacity to sue and should be invoked only if a separate capacity defect exists.

☐ Fifth Defense / Potential Counterclaim — FDCPA Violations. 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 engaged in false, deceptive, abusive, or unfair collection practices in violation of 15 U.S.C. §§ 1692d, 1692e, or 1692f, such as filing or threatening suit on a time-barred debt or continuing collection after a timely written pre-suit dispute without first mailing the verification required by § 1692g(b). Section 1692g(d) provides that a formal civil pleading is not an "initial communication," so the lawsuit itself does not create a § 1692g(a) validation-notice violation.

☐ Sixth Defense — Required Debt-Collection License (if applicable). If Plaintiff's claim against a consumer arises from business that requires a New York City DCWP debt-collection license, and Plaintiff lacks the required license or the complaint omits the license allegations, Defendant raises the applicable objection under C.P.L.R. 3015(e) and may seek relief under C.P.L.R. 3211(a)(7). Identify the licensing facts and any exemption: [FACTS]. NYDFS's 23 NYCRR Part 1 governs collection conduct and disclosures; its application alone does not establish a license defect or bar this action.

☐ Seventh Defense — Payment, Accord and Satisfaction, Release, Discharge, Set-Off. Any alleged obligation has been paid, satisfied, settled, released, or discharged (including by discharge in bankruptcy), in whole or in part; alternatively, any recovery must be reduced by set-off or recoupment.

☐ Eighth 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.

☐ Ninth 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. C.P.L.R. 3211(a)(5); N.Y. Gen. Oblig. Law § 5-701.

☐ Tenth 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.

☐ Eleventh Defense — Improper Service / Lack of Personal Jurisdiction. Service of the Summons and Complaint was defective under C.P.L.R. 308, 312-a, or related provisions, and/or this Court lacks personal jurisdiction over Defendant. C.P.L.R. 3211(a)(8).

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

☐ Thirteenth Defense — Hearsay; Lack of Foundation for Account Records. Defendant objects to admission of the account records identified as [RECORDS] because [SPECIFIC MISSING FOUNDATION FACTS]. Under C.P.L.R. 4518(a), Plaintiff must establish that the records were made and kept in the regular course of business at the required time. Lack of personal knowledge by the record maker alone affects weight, rather than admissibility. Delete this defense if the record and available facts do not support it.

☐ Fourteenth Defense — Reservation of Right to Amend. Defendant reserves the right to assert additional defenses, cross-claims, third-party claims, or counterclaims that become known through investigation or discovery, consistent with C.P.L.R. 3025.

IV. DEMAND FOR DOCUMENTATION AND STRICT PROOF

11. Defendant demands that, before judgment, Plaintiff produce admissible evidence of each of the following — much of which the Consumer Credit Fairness Act already requires to accompany or support the complaint and any application for judgment (C.P.L.R. 3016(j), 3215):

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

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, finance charges, fees, collection costs, attorney's fees, interest, and other charges comprising the amount demanded, including the revolving-account itemization required by C.P.L.R. 3016(j) where applicable;

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 the affidavits required by C.P.L.R. 3215; and

e. Proof that Plaintiff presently owns or otherwise has the right 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 actual damages, additional damages the court may allow 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. Potential violations may include filing or threatening suit on a time-barred debt; continuing collection after a timely written pre-suit dispute without first mailing verification under § 1692g(b); or using false, deceptive, abusive, or unfair means to collect. A formal civil pleading is not an initial communication under § 1692g(d).

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA and/or GBL § 349 counterclaim set forth in the attached/following pleading.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court:

A. Dismiss the Complaint in its entirety, with prejudice, and order that Plaintiff take nothing;

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

C. Award Defendant the costs and disbursements of this action and, where 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 TRIAL PROCEDURE

☐ Defendant intends to request a jury trial of eligible factual issues. This Answer is not the CPLR 4102(a) jury demand. To demand a jury, serve all other parties and file a note of issue containing the demand. If another party serves a note of issue without a jury demand, serve each party and file a jury demand within fifteen (15) days after that service. Pay the applicable filing fee when the demand is filed (C.P.L.R. 8020(c)); confirm the procedure for the court named in the summons.

VIII. SIGNATURE

Dated: [____________], New York
[__/__/____]

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
[Firm Name, if attorney]
[Street Address]
[City], New York [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

Verification by Affirmation (complete if required under C.P.L.R. 3020)

I affirm this [____] day of [____________], [____], under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing Answer is true to my knowledge except as to matters alleged on information and belief, and as to those matters I believe it to be true. I understand that this document may be filed in an action or proceeding in a court of law.

[____________________________________]
[DEFENDANT OR OTHER PERSON AUTHORIZED UNDER C.P.L.R. 3020(d)]

IX. CERTIFICATE / AFFIDAVIT OF SERVICE

I certify that on [__/__/____] 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) pursuant to C.P.L.R. 2103, by the following method:

☐ NYSCEF electronic filing (notice to all counsel of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

NEW YORK PRACTICE NOTES

• Answer deadline: 20 days after personal delivery of the summons and complaint to Defendant within New York State; 30 days where service was made by substituted service, "nail-and-mail," service on the Secretary of State, or out-of-state service (C.P.L.R. 320(a), 3012(c)). In a consumer credit action the complaint must be served WITH the summons (C.P.L.R. 3012(a)). Verify how and when service was completed and calendar the deadline immediately.
• Courts: Supreme Court (general jurisdiction); Civil Court of the City of New York (up to $50,000); District Court (Nassau/Suffolk); City/Town/Village Courts. Confirm the court named in the summons and current thresholds.
• Consumer Credit Fairness Act (CCFA, L.2021, c.593): Reduced the limitations period for consumer credit transactions to 3 years (C.P.L.R. 214-i, eff. April 7, 2022); a later payment or affirmation does NOT revive an expired period. Imposes heightened complaint requirements and an attachment mandate (C.P.L.R. 3016(j), eff. May 7, 2022) and a mandatory Additional Notice of Lawsuit mailed by the clerk in English and Spanish (C.P.L.R. 306-d). Under C.P.L.R. 306-d(c), failure to comply prevents a default judgment based on failure to answer; it does not bar all relief after an appearance. Default-judgment applications also require specified affirmations and chain-of-title proof (C.P.L.R. 3215).
• Statute of limitations — non-consumer debt: business debts and other contract claims outside the CCFA remain subject to the 6-year period under C.P.L.R. 213(2). Confirm the transaction is "consumer credit" before relying on the 3-year period.
• Licensing: A NYC DCWP Debt Collection Agency License may be required to collect personal or household debts from NYC residents, including for debt buyers and out-of-state collectors. C.P.L.R. 3015(e) specifies license allegations for a covered plaintiff's consumer claim and permits a dismissal motion for omission. NYDFS's 23 NYCRR Part 1 separately regulates third-party collectors and debt buyers; it is not itself a licensing requirement. Verify the actor, location, and exemption before asserting the defense.
• Judgment interest: Interest on money judgments against a natural person in consumer debt actions is 2% (L.2021, c.831, amending C.P.L.R. 5004), not the general 9% rate.

Sources and References

• N.Y. C.P.L.R. 214-i (3-year consumer credit limitations): https://law.justia.com/codes/new-york/cvp/article-2/214-i/
• N.Y. C.P.L.R. 3016 (heightened pleading; subd. (j)): https://www.nysenate.gov/legislation/laws/CVP/3016
• N.Y. C.P.L.R. 306-d (additional mailing of notice): https://law.justia.com/codes/new-york/cvp/article-3/306-d/
• N.Y. C.P.L.R. 3012 (service of pleadings; answer deadline): https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-3012/
• N.Y. C.P.L.R. 320 (appearance; time): https://www.nysenate.gov/legislation/laws/CVP/320
• New York Courts — Consumer Credit Reform (CCFA forms and notices): https://www.nycourts.gov/consumer-credit-reform
• NYC DCWP Debt Collection Agency License: https://nyc-business.nyc.gov/nycbusiness/description/debt-collection-agency-license
• NYDFS FAQ — 23 NYCRR Part 1 (third-party collectors and debt buyers): https://www.dfs.ny.gov/faqs/industry_faqs/debt
• 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/