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

IN THE [CIRCUIT / MAGISTRATE] COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [____________]

Judge / Magistrate: [____________]

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to W. Va. R. Civ. P. 8 and 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 RESERVATION OF RIGHTS

1. Defendant timely files this Answer within the period prescribed by W. Va. R. Civ. P. 12(a)(1) (or, in Magistrate Court, W. Va. R. Civ. P. Magis. Cts. 4). Defendant reserves all rights, defenses, and objections, including those enumerated in W. Va. R. Civ. P. 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 W. Va. 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 W. Va. R. Civ. P. 15 as discovery proceeds, Defendant asserts the following affirmative defenses under W. Va. 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 West Virginia law, an action upon a written contract must be commenced within ten (10) years (W. Va. Code § 55-2-6); an action upon an oral contract or upon a debt on account is governed by a five (5) year period (W. Va. Code § 55-2-6). The alleged debt accrued (and any last payment was made) more than the 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 and is not the real party in interest under W. Va. R. Civ. P. 17.

☐ 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 W. Va. 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.

☐ Fifth Defense — Violations of the West Virginia Consumer Credit and Protection Act (WVCCPA). Plaintiff and/or its predecessors used fraudulent, deceptive, or misleading representations or means to collect the alleged claim (W. Va. Code § 46A-2-127) and/or unfair or unconscionable means to collect the alleged claim (W. Va. Code § 46A-2-128), in violation of the WVCCPA. Such violations bar or reduce Plaintiff's recovery and give rise to the civil remedies in W. Va. Code § 46A-5-101.

☐ Sixth Defense — Plaintiff Not Licensed / Authorized to Collect in West Virginia. To the extent Plaintiff is required to be registered, bonded, or licensed to engage in the collection of consumer claims in West Virginia, Plaintiff has failed to plead or prove compliance, and is therefore barred from maintaining this action. [verify the licensing/registration requirement applicable to collection agencies and debt buyers in West Virginia 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, W. Va. Code § 55-1-1 (and W. Va. Code § 46-2-201 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 W. Va. Code § 47-6-5 et seq.; the WVCCPA finance-charge provisions). 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. W. Va. 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 (W. Va. 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.

☐ 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 W. Va. 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 / WVCCPA 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, and under the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-5-101, which authorizes actual damages, statutory penalties, and attorney's fees for violations of W. Va. Code §§ 46A-2-127 and 46A-2-128, for conduct such as filing suit on a time-barred or unverified debt, failing to provide § 1692g validation, or using fraudulent, deceptive, unfair, or unconscionable 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 WVCCPA, 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 W. Va. R. Civ. P. 38 and W. Va. Const. Art. III, § 13. [In Magistrate Court, a jury must be demanded under W. Va. R. Civ. P. Magis. Cts. 6A within the time the rule prescribes; verify.]

☐ 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
West Virginia State Bar No. (if attorney): [____________]
[Street Address]
[City], West Virginia [____]
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 W. Va. R. Civ. P. 5 (or W. Va. R. Civ. P. Magis. Cts. 8), by the following method:

☐ West Virginia E-Filing system (notice to all counsel of record, where authorized)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

WEST VIRGINIA PRACTICE NOTES

• Answer deadline (Circuit Court): 20 days after service of the summons and complaint (W. Va. R. Civ. P. 12(a)(1)); extended to 30 days when the defendant serves a notice of bona fide defense within the 20-day period, when service is made on an authorized agent, when in-state constructive service is made under Rule 4(e), or when out-of-state personal service is made under Rule 4(f). The Rules were restyled effective 2025; verify the current text and the Rule 6(a) time computation (intermediate weekends/holidays are now counted).
• Answer deadline (Magistrate Court): 20 days after service of the summons and complaint; 30 days if service is on an authorized agent; 5 days in unlawful entry and detainer / wrongful occupation of residential rental property cases. W. Va. R. Civ. P. Magis. Cts. 4.
• Courts: Circuit Court has general civil jurisdiction; Magistrate Court handles civil claims up to $20,000, exclusive of interest and costs. Confirm the court named in the summons.
• Statute of limitations on debt: written contract — 10 years (W. Va. Code § 55-2-6); oral contract and debt on account — 5 years (W. Va. Code § 55-2-6). The period generally runs from default / last payment. Note West Virginia's "borrowing" and tolling rules may apply.
• WVCCPA: The West Virginia Consumer Credit and Protection Act is a robust consumer-protection statute. § 46A-2-127 bars fraudulent/deceptive collection means; § 46A-2-128 bars unfair/unconscionable means; § 46A-5-101 provides the private right of action and remedies (actual damages, statutory penalties, attorney's fees). WVCCPA claims carry their own limitations periods (4 years for revolving accounts; 1 year after the last scheduled payment due date for non-revolving consumer credit) and Article 6 UDAP claims require 20 days' pre-suit notice and opportunity to cure. § 46A-5-108 addresses cure offers.
• Compulsory counterclaim: An FDCPA or WVCCPA claim arising from the collection of this debt may be compulsory under W. Va. R. Civ. P. 13(a).

Sources and References

• West Virginia Rules of Civil Procedure (restyled 2025): https://www.courtswv.gov/sites/default/pubfilesmnt/2025-02/RCP%20Final.pdf
• West Virginia Rules of Civil Procedure for Magistrate Courts: http://www.courtswv.gov/legal-community/court-rules/rules-of-civil-procedure-for-magistrate-court
• W. Va. Code § 55-2-6 (limitations — contracts): https://code.wvlegislature.gov/55-2-6/
• W. Va. Code § 46A-2-128 (WVCCPA — unfair/unconscionable means): https://code.wvlegislature.gov/46A-2-128/
• W. Va. Code § 46A-5-101 (WVCCPA — civil liability / right of action): https://code.wvlegislature.gov/46A-5-101/
• W. Va. Code § 46A-5-108 (WVCCPA — cure offer): https://code.wvlegislature.gov/46A-5-108/
• 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/