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

STATE OF SOUTH DAKOTA

IN CIRCUIT COURT — [____________] JUDICIAL CIRCUIT — COUNTY OF [____________]

Civ. No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to SDCL 15-6-8 and 15-6-12

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 RULE 12 SCREEN

1. Defendant serves this Answer under SDCL 15-6-12(a). The ordinary deadline is thirty (30) days after service of the Complaint unless another statute or rule controls or a permitted Rule 12 motion changes the responsive-pleading period. This form does not determine whether the Answer is timely in this case.

2. Defendant asserts only the responses, defenses, objections, and counterclaims actually stated in this Answer. Omitted objections are not preserved merely by a general reservation; SDCL 15-6-12(h) can waive personal-jurisdiction, process, and service objections that are not timely raised. Defendant should identify every factually and procedurally available Rule 12 objection before serving this Answer.

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 SDCL 15-6-8(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 SDCL 15-6-15 as discovery proceeds, Defendant asserts the following affirmative defenses under SDCL 15-6-8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to SDCL 15-6-11.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under South Dakota law, an action upon a contract, obligation, or liability, express or implied — including an open account — must be commenced within six (6) years (SDCL 15-2-13); an action for breach of a contract for sale of goods under the Uniform Commercial Code must be commenced within four (4) years (SDCL 57A-2-725). The alleged debt accrued (and any last payment occurred) 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. 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 SDCL 15-6-17(a).

☐ 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 SDCL 15-6-12(b)(5).

☐ 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 — Plaintiff Not Licensed / Authorized to Collect in South Dakota. To the extent Plaintiff or its agents were required to be licensed, registered, or bonded to engage in the collection of claims in South Dakota, Plaintiff has failed to plead or prove compliance. [Note: South Dakota does not impose a general statewide collection-agency operating license on most third-party collectors/debt buyers, although certain money lenders are licensed under SDCL ch. 54-4. Verify the current requirement and any applicable 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, SDCL 53-8-2, and the UCC Statute of Frauds, SDCL 57A-2-201.

☐ 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 rate permitted by law. Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Tenth Defense — Personal Jurisdiction / Process / Service. Select only the ground supported by the facts: ☐ lack of personal jurisdiction; ☐ insufficient process; ☐ insufficient service of process. SDCL 15-6-12(b)(2), (3), (4). These objections may be waived if omitted from the first available Rule 12 motion or responsive pleading. SDCL 15-6-12(g), (h)(1).

☐ 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 SDCL 19-19-803(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 SDCL 15-6-15.

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 SDCL 15-6-38 and S.D. Const. Art. VI, § 6.

☐ 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 Dakota Bar No. (if attorney): [____________]
[Street Address]
[City], South 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 SDCL 15-6-5, by the following method:

☐ Electronic service through the South Dakota Odyssey 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 DAKOTA PRACTICE NOTES

• Answer deadline: 30 days after service of the summons and complaint in Circuit Court (SDCL 15-6-12(a)). In small claims, appear or file a written answer by the date the clerk sets on the summons (no fewer than 5 court days from commencement) under SDCL 15-39-54. Failure to answer timely may result in a default (SDCL 15-6-55) and a default judgment.
• Courts: Circuit Court is the court of general jurisdiction for consumer debt cases; small claims is an alternative track (SDCL ch. 15-39). Confirm the court named on the summons.
• Statute of limitations on debt: contract / open account — 6 years (SDCL 15-2-13), running from default / last payment; UCC contract for sale of goods — 4 years (SDCL 57A-2-725); sealed instrument — 20 years (SDCL 15-2-7); actions not otherwise provided for — 10 years (SDCL 15-2-8). Confirm characterization and accrual before relying on the defense.
• Licensing: South Dakota does not impose a general statewide collection-agency operating license on most third-party collectors or debt buyers, although money lenders are licensed under SDCL ch. 54-4. The licensing defense is therefore limited; verify the current requirement and any applicable registration before asserting it.
• FDCPA / state law interplay: South Dakota's Deceptive Trade Practices and Consumer Protection statute (SDCL ch. 37-24) may 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 SDCL 15-6-13(a).

Sources and References

• South Dakota Codified Laws ch. 15-6 (Rules of Procedure in Circuit Courts; SDCL 15-6-12(a) — 30-day answer): https://sdlegislature.gov/Statutes/15-6
• SDCL 15-2-13 (6-year contract / open account limitation): https://sdlegislature.gov/Statutes/15-2-13
• SDCL 57A-2-725 (UCC sale of goods — 4 years): https://sdlegislature.gov/Statutes/57A-2-725
• SDCL 15-2-7 (sealed instrument — 20 years): https://sdlegislature.gov/Statutes/15-2-7
• SDCL 15-2-8 (actions not otherwise provided for — 10 years): https://sdlegislature.gov/Statutes/15-2-8
• SDCL ch. 37-24 (Deceptive Trade Practices and Consumer Protection): https://sdlegislature.gov/Statutes/37-24
• 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/