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

STATE OF WISCONSIN CIRCUIT COURT — [____________] COUNTY

Case No. [____________]

Case Classification Code: [____________]

Assigned Judge: [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Wis. Stat. §§ 802.02 and 802.06

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 serves and files this Answer within the period prescribed by Wis. Stat. § 802.06(1) (or, in a small claims action, on the return date under Wis. Stat. § 799.20(1)). Defendant reserves all rights, defenses, and objections, including the defenses that may be presented by motion under Wis. Stat. § 802.06(2).

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 Wis. Stat. § 802.02(2), 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 Wis. Stat. § 802.09 as discovery proceeds, Defendant asserts the following affirmative defenses under Wis. Stat. § 802.02(3). Defendant should select only those defenses supported by the facts; pleading clearly inapplicable defenses may be subject to Wis. Stat. § 802.05.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the applicable statute of limitations. Under Wisconsin law, an action upon a contract — including a written contract, an oral contract, an open account, or a promissory note — must be commenced within six (6) years (Wis. Stat. § 893.43). The alleged debt accrued (and any last payment was made) more than six 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 and is not the real party in interest under Wis. Stat. § 803.01.

☐ 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 Wis. Stat. § 802.06(2)(a)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.

☐ Fifth Defense — Violations of the Wisconsin Consumer Act. To the extent this is a consumer credit transaction, Plaintiff and/or its predecessors violated the Wisconsin Consumer Act (Wis. Stat. chs. 421–427), including the prohibited debt-collection practices in Wis. Stat. ch. 427 and the notice and procedural requirements in Wis. Stat. ch. 425 (including any required notice of right to cure default under Wis. Stat. § 425.104–425.105). Plaintiff's noncompliance bars or limits its recovery and may give rise to the remedies in Wis. Stat. ch. 425.

☐ Sixth Defense — Plaintiff Not Licensed Under Wis. Stat. § 218.04. To the extent Plaintiff is a "collection agency" within the meaning of Wis. Stat. § 218.04(1)(a), it is required to be licensed by the Department of Financial Institutions, and an unlicensed collection agency may not lawfully collect in Wisconsin. Plaintiff has failed to plead or prove that it holds a valid license. [verify whether Plaintiff is a licensed collection agency or qualifies for an exemption (e.g., a nonresident collecting solely by interstate mail/telecommunications, or an attorney authorized to practice in Wisconsin) 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 (Wis. Stat. § 241.02; Wis. Stat. § 402.201 for the sale of goods).

☐ 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 exceed lawful limits (see Wis. Stat. ch. 422 for consumer credit charges). 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. Wis. Stat. § 802.06(2)(a)2.–4.

☐ 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 (Wis. Stat. § 908.03(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.

☐ 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 Wis. Stat. § 802.09.

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, and (if applicable) proof that Plaintiff is licensed under Wis. Stat. § 218.04.

V. NOTICE OF POTENTIAL FDCPA / WISCONSIN CONSUMER ACT 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, statutory damages up to $1,000, and attorney's fees and costs under 15 U.S.C. § 1692k, and under the Wisconsin Consumer Act (Wis. Stat. chs. 421–427), the remedies of which (Wis. Stat. ch. 425) may include actual damages, statutory penalties, and attorney's fees, for conduct such as filing suit on a time-barred or unverified debt, failing to provide § 1692g validation, violating the prohibited collection practices of Wis. Stat. ch. 427, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the counterclaim(s) 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 the Wisconsin Consumer Act, 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 Wis. Stat. § 805.01 and Wis. Const. Art. I, § 5. [A jury demand must be served within the time and with the fee required by Wis. Stat. § 814.61(4) and § 805.01(2); verify the deadline and fee.]

☐ 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
Wisconsin State Bar No. (if attorney): [____________]
[Street Address]
[City], Wisconsin [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

IX. CERTIFICATE OF SERVICE

I 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 Wis. Stat. § 801.14, by the following method:

☐ Wisconsin Circuit Court eFiling system (notice to all counsel of record; mandatory for attorneys under Wis. Stat. § 801.18)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

WISCONSIN PRACTICE NOTES

• Answer deadline: 20 calendar days after service of the complaint in an ordinary civil action (Wis. Stat. § 802.06(1)(a)); 45 days if the defendant is an insurer, any cause of action is founded in tort, or the State is the moving party. In Small Claims (and eviction), the defendant responds on the return date stated in the summons under Wis. Stat. § 799.20(1) — there is no separate counted-answer window. The general small claims return date is 8–30 days from issuance. Read the summons to confirm.
• Courts: Circuit Court hears ordinary civil actions and (through the small claims track, ch. 799) consumer collection claims. Confirm the track and court named in the summons.
• Statute of limitations on debt: 6 years for written contracts, oral contracts, open accounts, and promissory notes (Wis. Stat. § 893.43), running generally from when the debt became due / from the last payment. Note the borrowing statute (Wis. Stat. § 893.07).
• Wisconsin Consumer Act: chs. 421–427 govern consumer credit transactions; ch. 427 addresses debt collection practices, ch. 425 provides remedies and penalties (including the right-to-cure notice procedure). The Department of Financial Institutions administers the Act.
• Licensing: Collection agencies are regulated under Wis. Stat. § 218.04 and Wis. Admin. Code ch. DFI-Bkg 74 and must be licensed; a nonresident collecting solely by interstate mail/telecommunications, and an attorney authorized to practice in Wisconsin, are generally excluded. Verify Plaintiff's status before asserting the licensing defense.
• Compulsory counterclaim: An FDCPA or Wisconsin Consumer Act claim arising from the collection of this debt may be compulsory under Wis. Stat. § 802.07 if it arises from the same transaction.

Sources and References

• Wis. Stat. § 802.06 (responsive pleadings; time to answer): https://docs.legis.wisconsin.gov/document/statutes/802.06
• Wis. Stat. § 799.20 (small claims — return date response): https://docs.legis.wisconsin.gov/document/statutes/799.20
• Wis. Stat. § 893.43 (action on contract — 6 years): https://docs.legis.wisconsin.gov/statutes/statutes/893/43
• Wis. Stat. ch. 427 (Consumer Transactions — Debt Collection): https://docs.legis.wisconsin.gov/statutes/statutes/427
• Wis. Stat. ch. 425 (Consumer Transactions — Remedies and Penalties): https://docs.legis.wisconsin.gov/statutes/statutes/425
• Wis. Stat. § 218.04 (Collection Agencies): https://docs.legis.wisconsin.gov/document/statutes/218.04
• DFI — Wisconsin Consumer Act Statutes & Rules: https://dfi.wi.gov/Pages/ConsumerServices/WisconsinConsumerAct/StatutesRules.aspx
• 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/