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

STATE OF VERMONT

SUPERIOR COURT — [____________] UNIT, CIVIL DIVISION

Docket No. [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Vt. R. Civ. P. 8 and 12

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se (self-represented) / ☐ 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 twenty-one (21) day period prescribed by Vt. R. Civ. P. 12(a)(1). Defendant reserves all rights, defenses, and objections available under the Vermont 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 [____] 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. Pursuant to Vt. 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 Vt. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under Vt. R. Civ. P. 8(c). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to Vt. 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 Vermont law, a civil action (including an action on an oral contract or for economic loss) must be commenced within six (6) years after the cause of action accrues. 12 V.S.A. § 511. The alleged debt accrued (generally upon the date of the last payment or default) more than six years before this action was filed, and the claim is time-barred.

☐ Second Defense — No Revival; New Promise/Payment Not in Writing. Any payment, promise, or acknowledgment relied upon by Plaintiff to extend or revive the limitations period is ineffective because a new promise or acknowledgment must be in writing and signed by the party to be charged. 12 V.S.A. §§ 591-592.

☐ Third 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 — every bill of sale and assignment specifically identifying Defendant's account. Absent such proof, Plaintiff is not the real party in interest under Vt. R. Civ. P. 17 and lacks standing to maintain this action.

☐ Fourth 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 Vt. R. Civ. P. 12(b)(6).

☐ 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 used false, deceptive, abusive, or unfair means 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 — Authority to Collect / Licensing. Plaintiff has failed to plead or prove its lawful authority to collect the alleged debt in Vermont. [Verify whether the plaintiff is required to be licensed or registered as a debt collector, debt buyer, or sales finance/loan company in Vermont — certain entities are regulated by the Vermont Department of Financial Regulation. Confirm the current requirement and the plaintiff's status before relying on this defense.]

☐ Seventh 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.

☐ 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, 12 V.S.A. § 181.

☐ Tenth Defense — Erroneous or Unauthorized Amount; Unauthorized Fees; Usury. The amount claimed is incorrect, inflated, or includes interest, fees, or charges not authorized by any agreement, that are unconscionable, or that are usurious. Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Eleventh Defense — Improper Service / Lack of Personal Jurisdiction. Service of process was insufficient or defective, and/or this Court lacks personal jurisdiction over Defendant. Vt. R. Civ. P. 12(b)(2), (4), (5).

☐ 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. Plaintiff's account records, affidavits, and computer printouts are inadmissible hearsay and lack the foundation required for the business-records exception (V.R.E. 803(6), 902(11)). 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.

☐ Fourteenth 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 Vt. R. Civ. P. 15.

IV. DEMAND FOR DOCUMENTATION AND STRICT PROOF

9. 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 / CONSUMER PROTECTION COUNTERCLAIM

10. 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, statutory damages up to $1,000, and attorney's fees and costs under 15 U.S.C. § 1692k, and/or under the Vermont Consumer Protection Act, 9 V.S.A. ch. 63 (§§ 2451, 2453; private right of action under § 2461), for conduct such as suing on a time-barred or unverified debt, failing to provide § 1692g validation, or using unfair or deceptive acts or practices to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA / Consumer Protection Act 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 a trial by jury on all issues so triable, pursuant to Vt. R. Civ. P. 38 and Chapter I, Article 12 of the Vermont Constitution.

☐ No — Defendant does not demand a jury trial at this time.

VIII. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, self-represented ☐ Attorney for Defendant
Vermont Bar No. (if attorney): [____________]
[Street Address]
[City], Vermont [____]
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 Vt. R. Civ. P. 5, by the following method:

☐ Odyssey File & Serve electronic-filing system (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/ [____________________________________]
[____________________________________]

VERMONT PRACTICE NOTES

• Answer deadline: 21 days after service of the summons and complaint in the Civil Division (Vt. R. Civ. P. 12(a)(1)). Default may be entered under Vt. R. Civ. P. 55(a) if no timely Answer is filed. Vermont small claims uses a separate 30-day form-answer process.
• Court: Superior Court, Civil Division, for the county Unit named on the summons. Self-represented litigants may e-file through Odyssey File & Serve; a fillable Answer form (100-00051) is available.
• Statute of limitations on debt: general civil action / oral contract — 6 years (12 V.S.A. § 511), the period that typically governs credit-card and consumer debt, running from the last payment. Special longer periods (12 V.S.A. § 507 specialties — 8 years; § 508 witnessed promissory note — 14 years) rarely apply to ordinary credit-card debt, and the UCC 6-year period (9A V.S.A. § 3-118) may control negotiable instruments. Judgments — 8 years (12 V.S.A. § 506). Confirm characterization and accrual.
• Revival: A new promise or acknowledgment must be in writing and signed to extend the period. 12 V.S.A. §§ 591-592.
• Licensing: Verify whether the plaintiff must be licensed/registered with the Vermont Department of Financial Regulation as a debt collector, debt buyer, or loan/sales-finance company before asserting a licensing defense; the FDCPA applies in all events.
• UDAP: The Vermont Consumer Protection Act (9 V.S.A. ch. 63) prohibits unfair/deceptive acts and authorizes a private action with damages and attorney's fees (9 V.S.A. § 2461). Verify applicability to the specific collection conduct.
• Compulsory counterclaim: An FDCPA/CPA claim arising from collection of this debt may be compulsory under Vt. R. Civ. P. 13(a).

Sources and References

• Vermont Rules of Civil Procedure: https://www.vermontjudiciary.org/rules
• 12 V.S.A. § 511 (6-year civil action): https://legislature.vermont.gov/statutes/section/12/023/00511
• 12 V.S.A. § 507 (specialties): https://legislature.vermont.gov/statutes/section/12/023/00507
• 12 V.S.A. § 508 (witnessed promissory note): https://legislature.vermont.gov/statutes/section/12/023/00508
• 12 V.S.A. § 506 (judgments): https://legislature.vermont.gov/statutes/section/12/023/00506
• 12 V.S.A. §§ 591-592 (new promise / payment in writing): https://law.justia.com/codes/vermont/title-12/chapter-23/
• Vermont Consumer Protection Act, 9 V.S.A. ch. 63: https://legislature.vermont.gov/statutes/chapter/09/063
• VTLawHelp — Debt and Debt Collection / Defending Yourself in Court: https://vtlawhelp.org/debtdebt-collection
• 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 — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/