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

STATE OF SOUTH CAROLINA

COUNTY OF [____________] — [☐ COURT OF COMMON PLEAS (CIRCUIT COURT) / ☐ MAGISTRATE COURT]

Civil Action No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to S.C. R. Civ. P. 8 and 12 (or applicable Magistrate Court procedure)

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 S.C. R. Civ. P. 12(a). Defendant reserves all rights, defenses, and objections available under the South Carolina 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 S.C. 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 S.C. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under S.C. R. Civ. P. 8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to Rule 11.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under South Carolina law, an action upon a contract, obligation, or liability, express or implied — including most consumer and open-account debt — must be commenced within three (3) years (S.C. Code Ann. § 15-3-530(1)). The alleged debt accrued (and any last payment occurred) more than three years 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 lacks standing to bring or maintain this action and is not the real party in interest under S.C. R. Civ. P. 17(a).

☐ Third Defense — Failure to State a Claim. The Complaint fails to state facts sufficient to constitute a cause of action and is subject to dismissal under S.C. 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, or misrepresenting the right to garnish wages (which is prohibited for consumer debt in South Carolina under S.C. Code Ann. § 37-5-104).

☐ Fifth Defense — Plaintiff Not Authorized to Collect; Compliance Not Pleaded. To the extent Plaintiff or its agents were required to register, be bonded, or otherwise comply with any applicable South Carolina requirement governing the collection of consumer debt, Plaintiff has failed to plead or prove compliance. [Note: South Carolina does not require most third-party collection agencies/debt buyers to obtain an operating license, though certain consumer-credit lenders are licensed and collectors may register with the S.C. Department of Consumer Affairs. Verify the current requirement and any registration 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, including the UCC Statute of Frauds, S.C. Code Ann. § 36-2-201, and S.C. Code Ann. § 32-3-10.

☐ 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 exceed the amounts permitted under the South Carolina Consumer Protection Code (S.C. Code Ann. Title 37) or other applicable law. A debt buyer may recover no amount not authorized by the original contract. 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. S.C. 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 S.C. 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 S.C. 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, 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 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 S.C. R. Civ. P. 38 and S.C. Const. Art. I, § 14.

☐ 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
South Carolina Bar No. (if attorney): [____________]
[Street Address]
[City], South Carolina [____]
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 S.C. R. Civ. P. 5, by the following method:

☐ South Carolina Electronic Filing (E-Filing) System (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/ [____________________________________]
[____________________________________]

SOUTH CAROLINA PRACTICE NOTES

• Answer deadline: 30 days after service of the Summons and Complaint (S.C. R. Civ. P. 12(a)), including in Magistrate Court debt cases. Mail a copy to the Plaintiff/Plaintiff's attorney and file with the court with a written statement of mailing. Failure to answer timely may result in a default judgment.
• Courts: Magistrate Court hears civil claims up to $7,500; the Court of Common Pleas (Circuit Court) hears larger matters. Confirm the current jurisdictional limit and the court named on the summons.
• Statute of limitations on debt: contract / open account / most consumer debt — 3 years (S.C. Code Ann. § 15-3-530(1)), running from default / last payment; a sealed written instrument or bond may be 20 years (§ 15-3-520). A written acknowledgment or new written promise (or partial payment) can revive a time-barred debt (§ 15-3-120). Confirm characterization and accrual before relying on the defense.
• Licensing: South Carolina generally does NOT require most third-party collection agencies or debt buyers to hold an operating license, although consumer-credit lenders are licensed under Title 37 and collectors may register with the S.C. Department of Consumer Affairs. The licensing defense is weak in South Carolina; verify before asserting it.
• No wage garnishment for consumer debt: Under S.C. Code Ann. § 37-5-104, a creditor may not garnish unpaid earnings for a consumer credit sale, consumer lease, consumer loan, or consumer rental-purchase agreement. A collector's threat to garnish wages for such a debt may violate the FDCPA.
• FDCPA / state law interplay: The South Carolina Consumer Protection Code (Title 37) and the S.C. Unfair Trade Practices Act (§ 39-5-10 et seq.) supplement the federal FDCPA (15 U.S.C. § 1692 et seq.). Assert federal FDCPA claims under 15 U.S.C. § 1692 et seq.
• Compulsory counterclaim: An FDCPA claim arising from the collection of this debt may be compulsory under S.C. R. Civ. P. 13(a).

Sources and References

• South Carolina Rules of Civil Procedure (Rule 12 — 30-day answer): https://www.sccourts.org/courtReg/displayRule.cfm?ruleID=12.0&subRuleID=&ruleType=CIV
• S.C. Code Ann. § 15-3-530 (3-year limitation): https://www.scstatehouse.gov/code/t15c003.php
• S.C. Code Ann. § 15-3-520 (20-year sealed instrument): https://www.scstatehouse.gov/code/t15c003.php
• S.C. Code Ann. § 15-3-120 (acknowledgment / revival): https://www.scstatehouse.gov/code/t15c003.php
• S.C. Code Ann. Title 37 (Consumer Protection Code; § 37-5-104 no garnishment): https://www.scstatehouse.gov/code/t37c005.php
• S.C. Code Ann. § 39-5-10 et seq. (Unfair Trade Practices Act): https://www.scstatehouse.gov/code/t39c005.php
• S.C. Department of Consumer Affairs — Fair Debt Collection FAQs: https://consumer.sc.gov/consumer-faqs/fair-debt-collection-faqs
• 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/
• South Carolina Legal Services — Debt Collection: Summons and Complaint: https://sclegal.org/brochures/debt-collection-summons-and-complaint/