Indiana Tenant's Answer to Eviction Complaint with Affirmative Defenses and Counterclaims

DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS — INDIANA EVICTION

TABLE OF CONTENTS

1. Caption
2. General Denial and Specific Responses
3. Affirmative Defenses
4. Counterclaims
5. Demand for Jury Trial / Trial De Novo
6. Reservation of Rights
7. Prayer for Relief
8. Verification
9. Signature and Service Blocks
10. Certificate of Service
11. Indiana Practice Notes
12. Sources and References

1. CAPTION

STATE OF INDIANA

COUNTY OF [____________________]

[☐ ____________ TOWNSHIP SMALL CLAIMS COURT (Marion County)
☐ [____________] CIRCUIT COURT — SMALL CLAIMS DOCKET
☐ [____________] CIRCUIT / SUPERIOR COURT — REGULAR CIVIL DOCKET]

CAUSE NO.: [________________________________]

DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

Defendant [TENANT NAME] ("Defendant" or "Tenant"), by counsel [or pro se], for Answer to Plaintiff's Complaint for Possession of Real Estate and Damages, states as follows:

2. GENERAL DENIAL AND SPECIFIC RESPONSES

2.1. As to paragraph 2.1 of the Complaint (Plaintiff's status): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.2. As to paragraph 2.2 (Defendant's residency): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.3. As to paragraph 2.3 (additional defendants): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.4. As to paragraph 2.4 (subject-matter jurisdiction): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.5. As to paragraph 2.5 (personal jurisdiction): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.6. As to paragraph 2.6 (venue): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge].

2.7. As to paragraph 3.1 (description of Premises): [☐ Admitted ☐ Denied].

2.8. As to paragraph 3.2 (Plaintiff's interest): [☐ Admitted ☐ Denied ☐ Without sufficient knowledge — Plaintiff's standing to sue is denied; Defendant demands strict proof of ownership / authority to act].

2.9. As to paragraph 3.3 (Rental Agreement): [Admit existence of Rental Agreement to extent attached as Exhibit B; deny any characterizations inconsistent with the document].

2.10. As to paragraph 4 (pre-suit notice): DENIED. Defendant denies the validity, sufficiency, content, and proper service of any pre-suit notice and demands strict proof.

2.11. As to paragraphs 5–8 (Counts I–IV): DENIED.

2.12. General denial. Each and every allegation of the Complaint not expressly admitted herein is denied.

3. AFFIRMATIVE DEFENSES

Defendant pleads the following affirmative defenses pursuant to Ind. Trial Rule 8(C), without admitting any matter not herein expressly admitted, and without conceding which party bears the burden of any issue:

FIRST AFFIRMATIVE DEFENSE — Defective Pre-Suit Notice

3.1. The Complaint should be dismissed because Plaintiff's pre-suit notice fails to comply with Ind. Code § 32-31-1-6, § 32-31-1-7, § 32-31-1-1, and/or § 32-31-1-2 in one or more of the following respects: ☐ insufficient notice period; ☐ failure to use statutory form; ☐ improper service under § 32-31-1-8; ☐ demand for non-rent amounts in 10-day notice; ☐ failure to identify the Premises with specificity; ☐ landlord identity not disclosed; ☐ premature filing before notice period expired.

SECOND AFFIRMATIVE DEFENSE — CARES Act 30-Day Notice Required

3.2. The Premises are a "covered dwelling" under 15 U.S.C. § 9058(a) and Plaintiff failed to give the required 30-day notice to vacate under § 9058(c). Defendant bases this defense on, inter alia: ☐ Plaintiff's participation in HUD / Section 8 / LIHTC / USDA RD / public housing programs; ☐ a federally backed mortgage loan encumbering the Premises (as identified in Fannie Mae / Freddie Mac loan look-up tools, the FHA / VA / USDA RD insured loan registry, or the recorded deed of trust); ☐ public records evidence further identified at hearing.

THIRD AFFIRMATIVE DEFENSE — Payment / Tender of Rent During Cure Period

3.3. Defendant tendered, attempted to tender, or paid in full all amounts demanded in the 10-day notice within the notice period, thereby curing any default under Ind. Code § 32-31-1-6 ("unless ... the tenant pays the rent in full before the notice period expires"). Plaintiff refused the tender or accepted partial payment without proper application.

FOURTH AFFIRMATIVE DEFENSE — Waiver / Acceptance of Rent

3.4. Plaintiff accepted rent or other lease consideration AFTER the alleged default and AFTER the alleged termination, thereby waiving the alleged default and the right to terminate. Plaintiff is estopped from now denying the existence of a continuing tenancy.

FIFTH AFFIRMATIVE DEFENSE — Breach of Implied Warranty of Habitability

3.5. Plaintiff materially breached Ind. Code § 32-31-8-5, requiring the Landlord to "deliver the rental premises ... in compliance with the rental agreement, in a safe, clean, and habitable condition" and to "comply with all health and housing codes." Specifically, the Premises suffered the following defects, of which Plaintiff was given written notice on [__/__/____] and which Plaintiff failed to remedy within a reasonable time: [itemize: heat failure; plumbing; mold; pest infestation; electrical; roof leak; structural; lack of running water; sewer backup; lack of locks; broken windows; etc.]. Defendant is entitled to: rent abatement, set-off, recovery of repair-and-deduct costs, consequential damages, and attorney fees pursuant to Ind. Code § 32-31-8-6.

SIXTH AFFIRMATIVE DEFENSE — Retaliation (Ind. Code § 32-31-8.5-5)

3.6. Plaintiff's notice and filing constitute a "retaliatory act" prohibited by Ind. Code § 32-31-8.5-5, taken in response to one or more of the following protected activities by Defendant within the recent past:

☐ Complaint to [name code-enforcement / health / building authority] about the rental premises (filed [__/__/____], complaint #[____]);

☐ Written complaint to Plaintiff under Ind. Code § 32-31-5-6 or § 32-31-8-5 demanding repair of conditions affecting health and safety (delivered [__/__/____]);

☐ Action filed against Plaintiff under Ind. Code § 32-31-6 or § 32-31-8 (Cause No. [____]);

☐ Organizing, joining, or becoming a member of a tenants' organization;

☐ Testifying in a court proceeding or administrative hearing against Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE — Discrimination (FHA / Ind. Code § 22-9.5)

3.7. Plaintiff's notice and filing are motivated, in whole or in part, by Defendant's status in a protected class under the federal Fair Housing Act (42 U.S.C. § 3604) and Ind. Code § 22-9.5: race, color, religion, sex (including sexual harassment / gender identity), familial status, disability, national origin, and ancestry. [In Marion County / Indianapolis, additional local protections apply to sexual orientation, gender identity, and veteran/military status under Indianapolis-Marion County Code of Ordinances Title VIII, Chapter 581.]

EIGHTH AFFIRMATIVE DEFENSE — Failure to Accommodate (FHA / ADA)

3.8. Defendant requested a reasonable accommodation or modification under 42 U.S.C. § 3604(f) and Ind. Code § 22-9.5 on [__/__/____] for [describe disability and accommodation requested], which Plaintiff unreasonably denied or failed to engage in the interactive process to address. The notice underlying this action arises from conduct that would have been excused or modified by the requested accommodation.

NINTH AFFIRMATIVE DEFENSE — Domestic Violence / Sexual Assault / Stalking Survivor

3.9. Defendant is a victim of domestic violence, sexual assault, or stalking, with the rights provided by Ind. Code § 32-31-9. The conduct underlying Plaintiff's notice arises from the abuse and may not lawfully be the basis for eviction. Defendant has provided Plaintiff with the documentation required by § 32-31-9 (e.g., civil protection order, qualified third-party verification).

TENTH AFFIRMATIVE DEFENSE — Servicemembers Civil Relief Act

3.10. Defendant [or a co-tenant or dependent of Defendant] is on active military duty and is entitled to a stay of the eviction proceeding under 50 U.S.C. § 3951.

ELEVENTH AFFIRMATIVE DEFENSE — Defective Service of Process

3.11. Plaintiff did not properly serve the summons and complaint upon Defendant under Ind. Trial R. 4 / 4.1 (regular civil) or Indiana Small Claims Rule 2 (small claims). The Court lacks personal jurisdiction over Defendant.

TWELFTH AFFIRMATIVE DEFENSE — Standing / Real Party in Interest

3.12. Plaintiff lacks standing to sue. Plaintiff is not the record owner of the Premises, is not the lawful landlord, has not produced a valid power of attorney or property-management agreement, or has otherwise failed to demonstrate the right to bring this action under Ind. Trial R. 17.

THIRTEENTH AFFIRMATIVE DEFENSE — Acceptance of Rent After Notice / Waiver

3.13. Plaintiff accepted full or partial rent for periods after the date of the pre-suit notice or after the alleged termination date, thereby waiving any claim to terminate based on the alleged default.

FOURTEENTH AFFIRMATIVE DEFENSE — Estoppel / Course of Dealing

3.14. Throughout the parties' tenancy, Plaintiff routinely accepted late rent payments without objection or demand, creating a course of dealing on which Defendant reasonably relied. Plaintiff is estopped from now demanding strict compliance.

FIFTEENTH AFFIRMATIVE DEFENSE — Set-off

3.15. Defendant is entitled to a set-off against any amount allegedly owed to Plaintiff in the amount of: (a) the wrongfully withheld security deposit (Ind. Code § 32-31-3-12); (b) repair-and-deduct expenditures (Ind. Code § 32-31-8-6); (c) rent abatement attributable to habitability defects; (d) damages caused by Plaintiff's breach of quiet enjoyment.

SIXTEENTH AFFIRMATIVE DEFENSE — Constructive Eviction / Breach of Quiet Enjoyment

3.16. Plaintiff materially interfered with Defendant's quiet enjoyment of the Premises by [entering without notice in violation of § 32-31-5-6; harassment; turning off utilities; removing doors/locks; refusing repairs that rendered the Premises uninhabitable], which constitutes constructive eviction and excuses Defendant's continued performance.

SEVENTEENTH AFFIRMATIVE DEFENSE — Self-Help Eviction Prohibited

3.17. To the extent Plaintiff has engaged in self-help to recover possession (lockout, utility shutoff, removal of belongings, intimidation), such acts are unlawful at Indiana common law (Watson v. Brown, 213 Ind. 40 (1937); cf. Berns Constr. Co. v. Highley, 162 Ind. App. 175 (1974)) and bar Plaintiff's recovery; further, they are independently actionable.

EIGHTEENTH AFFIRMATIVE DEFENSE — Failure to Mitigate

3.18. Plaintiff failed to mitigate damages by failing to make reasonable efforts to re-rent the Premises and is barred from recovering rent for periods during which mitigation would have prevented loss. See Stewart v. Riley, 144 Ind. App. 26 (1968) (mitigation duty in landlord-tenant context).

NINETEENTH AFFIRMATIVE DEFENSE — Statute of Frauds / Statute of Limitations

3.19. To the extent Plaintiff alleges an oral lease for a term longer than three years, the Rental Agreement is unenforceable under Ind. Code § 32-21-1-1 (statute of frauds). To the extent any claim is barred by the applicable statute of limitations, that defense is preserved.

TWENTIETH AFFIRMATIVE DEFENSE — Reservation of Defenses

3.20. Defendant reserves the right to assert additional affirmative defenses as may be revealed by discovery or further investigation.

4. COUNTERCLAIMS

Pursuant to Ind. Trial R. 13 (or Indiana Small Claims Rule 5(D) in small claims), Defendant asserts the following counterclaims against Plaintiff:

COUNTERCLAIM I — Breach of Implied Warranty of Habitability (Ind. Code § 32-31-8)

4.1. The allegations of paragraphs 3.5 and 3.16 are incorporated.

4.2. Defendant gave Plaintiff written notice of habitability defects on [__/__/____] and a reasonable opportunity to cure. Plaintiff failed to cure within a reasonable time.

4.3. Pursuant to Ind. Code § 32-31-8-6, Defendant is entitled to actual and consequential damages, attorney fees, and court costs.

4.4. Damages: $[__________].

COUNTERCLAIM II — Wrongful Withholding of Security Deposit (Ind. Code § 32-31-3-12 et seq.)

4.5. [For tenants whose tenancies have ended OR who have abandoned the Premises and demand return of the deposit; or for tenants seeking declaratory relief.]

4.6. Plaintiff failed to return the security deposit and/or failed to provide the written itemization of damages within 45 days of termination of occupancy as required by Ind. Code § 32-31-3-12.

4.7. Defendant is entitled to: (a) the entire amount of the security deposit ($[__________]); (b) reasonable attorney fees (Ind. Code § 32-31-3-12(d)); and (c) damages for any bad-faith withholding.

COUNTERCLAIM III — Retaliatory Eviction (Ind. Code § 32-31-8.5)

4.8. The allegations of paragraph 3.6 are incorporated.

4.9. Plaintiff's filing of this action and any related notice is a "retaliatory act" within the meaning of Ind. Code § 32-31-8.5-4 taken in response to Defendant's protected activity.

4.10. Defendant is entitled to actual damages (including the cost of relocation if forced to move), attorney fees as the prevailing party, and dismissal of the underlying possession action.

COUNTERCLAIM IV — Fair Housing Violation (Ind. Code § 22-9.5; 42 U.S.C. § 3604)

4.11. The allegations of paragraphs 3.7 and 3.8 are incorporated.

4.12. Plaintiff's conduct constitutes unlawful discrimination on the basis of [protected characteristic], and/or unlawful refusal to make a reasonable accommodation or modification.

4.13. Defendant is entitled to actual damages, punitive damages, civil penalties, and attorney fees and costs under 42 U.S.C. § 3613(c) and Ind. Code § 22-9.5-7.

COUNTERCLAIM V — Self-Help Eviction / Wrongful Lockout

4.14. To the extent Plaintiff engaged in self-help eviction (changed locks, removed belongings, shut off utilities, threatened or intimidated Defendant), Plaintiff is liable to Defendant for: (a) actual damages; (b) cost of replacing personal property; (c) emotional-distress damages; (d) punitive damages; and (e) attorney fees.

COUNTERCLAIM VI — Violation of Right of Privacy / Improper Entry (Ind. Code § 32-31-5-6)

4.15. Plaintiff entered the Premises without Defendant's consent and without reasonable notice in violation of Ind. Code § 32-31-5-6, on or about [dates].

4.16. Defendant is entitled to actual damages, statutory damages where authorized, and attorney fees.

COUNTERCLAIM VII — Eviction Record Sealing (Ind. Code § 32-31-11-3)

4.17. Upon dismissal of this action, judgment for Defendant, or full satisfaction of any money judgment, Defendant is entitled to an order sealing the records of this case from public view pursuant to Ind. Code § 32-31-11-3.

4.18. Defendant requests that the Court enter such an order at the earliest appropriate time.

5. DEMAND FOR JURY TRIAL / TRIAL DE NOVO

5.1. [For regular civil ejectment cases.] Defendant demands trial by jury on all issues so triable pursuant to Ind. Trial R. 38(B).

5.2. [For small-claims cases.] Defendant requests removal to the regular civil docket of the Circuit / Superior Court for trial by jury, pursuant to Indiana Small Claims Rule 8(C) (right to jury trial in small claims by timely demand and payment of jury fee).

6. RESERVATION OF RIGHTS

6.1. Defendant reserves the right to amend this Answer to assert additional defenses and counterclaims as discovery proceeds, pursuant to Ind. Trial R. 15.

6.2. Defendant reserves all rights, defenses, counterclaims, set-offs, and recoupments not expressly waived herein.

7. PRAYER FOR RELIEF

WHEREFORE, Defendant prays that the Court:

A. Dismiss the Complaint with prejudice and award Defendant possession of the Premises;

B. Enter judgment for Defendant on each Counterclaim and award damages as proven, plus pre- and post-judgment interest at the statutory rate (Ind. Code § 24-4.6-1-101);

C. Award Defendant reasonable attorney fees and costs under Ind. Code §§ 32-31-3-12(d), 32-31-8-6, 22-9.5-7, and 42 U.S.C. § 3613(c), as applicable, and Lease § [____] (with reciprocity under Ind. Code § 34-52-1-1 if applicable);

D. Seal the record of this action pursuant to Ind. Code § 32-31-11-3;

E. Award Defendant punitive damages for any willful, malicious, or bad-faith conduct;

F. Such other and further relief as the Court deems just and proper.

8. VERIFICATION

I, [DEFENDANT NAME], having read the foregoing Answer, Affirmative Defenses, and Counterclaims, declare under penalty of perjury under the laws of the State of Indiana (Ind. Code § 35-44.1-2-1) that the matters of fact alleged are true and correct to the best of my knowledge and belief.

Signature: [________________________________]

Date: [__/__/____]

9. SIGNATURE AND SERVICE BLOCKS

Respectfully submitted,

[ATTORNEY NAME], Attorney No. [__________]

[LAW FIRM / LEGAL AID ORGANIZATION]

[ADDRESS]

[CITY, IN ZIP]

Telephone: [________________________________]

Email: [________________________________]

Attorney for Defendant

[OR — Pro Se:

[DEFENDANT NAME], pro se

[ADDRESS]

[CITY, IN ZIP]

Telephone: [________________________________]

Email: [________________________________]

10. CERTIFICATE OF SERVICE

I certify that on [__/__/____] I caused a true and complete copy of the foregoing Answer, Affirmative Defenses, and Counterclaims to be served on Plaintiff and Plaintiff's counsel of record by:

☐ Indiana e-filing system (IEFS).

☐ U.S. First-Class Mail to [counsel address].

☐ Personal delivery / hand delivery.

☐ Email (where authorized by Trial Rule 5(B) and counsel's appearance).

Signature: [________________________________]

11. INDIANA PRACTICE NOTES

11.1. Small claims — no answer required, but appearance required. Under Indiana Small Claims Rule 5(A), a defendant in a small-claims action need not file a written answer. The defendant must appear at the scheduled hearing. Failure to appear results in default judgment. A written answer is, however, the only way to assert COUNTERCLAIMS in advance (Small Claims Rule 5(D)).

11.2. Regular civil — answer due in 20 days. Trial Rule 6(C). One automatic 30-day enlargement under Trial Rule 6(B) by Notice of Enlargement.

11.3. Immediate possession — appear at the show-cause hearing. § 32-30-3-2 hearing is held no earlier than 5 business days after service. The tenant may appear on the date set, present defenses orally, and request an expedited hearing on 48 hours' notice if needed.

11.4. Habitability prerequisites (§ 32-31-8-6). The tenant must have given the landlord written notice and a reasonable opportunity to cure. If not yet given, give it now and preserve a copy. Indiana courts read the notice requirement strictly.

11.5. Retaliation defense — § 32-31-8.5. "Protected activity" is narrower than in some states (the five enumerated categories in § 32-31-8.5-3). General complaints not within the categories may not support the defense. Document the temporal proximity between protected activity and the eviction notice.

11.6. Federal CARES Act 30-day notice. Continuing post-pandemic law. The tenant must investigate whether the Premises are a "covered dwelling" — Fannie Mae/Freddie Mac loan look-up tools, USDA/HUD/VA/FHA insurance status, and the presence of any federal housing subsidy. A defective CARES Act notice is dispositive in many Indiana courts.

11.7. Eviction record sealing — § 32-31-11-3. Whenever an eviction case is dismissed, the tenant prevails, or a money judgment is satisfied in full, the tenant should immediately move to seal the record. Sealing prevents the case from appearing in tenant-screening reports and is critical for the tenant's future housing search.

11.8. Marion County township courts. Each township has its own bench and procedures. Center, Pike, Warren, Washington, Wayne, Lawrence, Decatur, Franklin, and Perry Township small-claims courts. Local rule check is essential before filing.

11.9. Right to counsel. Indiana does not yet have a universal right to counsel in eviction cases. Free legal aid is available through Indiana Legal Services (1-800-869-0212), Heartland Pro Bono Council (Marion County), and the Indianapolis Bar Foundation Legal Volunteer Program.

11.10. Implied warranty of habitability is real but limited. Theiss v. Weiss, 166 Ind. App. 244 (1975) recognized common-law warranty; Breezewood Mgmt. Co. v. Maltbie, 411 N.E.2d 670 (Ind. Ct. App. 1980) elaborated. Statute (§ 32-31-8-5) supplements but does not supplant common-law theory. Tenants may pursue both.

11.11. Self-help bar. Indiana common law strongly disfavors landlord self-help. King v. Sweet, 174 Ind. App. 1 (1977). A counterclaim for damages and an injunction against further self-help is appropriate where the landlord has changed locks, removed belongings, or shut off utilities.

11.12. Eviction-diversion programs. Marion County and several other Indiana counties operate court-affiliated eviction-diversion programs that may pause litigation and direct emergency rental assistance to the landlord. Tenants should ask the court clerk on the day of filing.

11.13. Indianapolis Tenants' Rights Act (Ord. 165, 2020). Substantive landlord-tenant regulations were largely preempted by Ind. Code § 36-1-22 (HEA 1389, 2020). However, anti-discrimination and tenant-information-disclosure provisions of the Indianapolis-Marion County Code of Ordinances Chapter 581/582 remain in force.

11.14. Ancestry as protected class. Ind. Code § 22-9.5 includes ancestry as an additional protected class, beyond federal law. Useful where federal national-origin theory may be doubted.

12. SOURCES AND REFERENCES

• Ind. Code § 32-30-2 — Ejectment. https://iga.in.gov/laws/indiana-code/title-32
• Ind. Code § 32-30-2-22 — Defendant's Answer.
• Ind. Code § 32-30-3 — Immediate possession.
• Ind. Code § 32-31-1 — Notice and termination provisions.
• Ind. Code § 32-31-3-12, -13, -14 — Security deposit return; itemization.
• Ind. Code § 32-31-5-6 — Right of entry / privacy.
• Ind. Code § 32-31-7-5 — Tenant obligations.
• Ind. Code § 32-31-8-5 — Implied warranty of habitability.
• Ind. Code § 32-31-8-6 — Tenant remedies.
• Ind. Code § 32-31-8.5-3, -4, -5 — Retaliation.
• Ind. Code § 32-31-9 — DV / sexual-assault / stalking survivor rights.
• Ind. Code § 32-31-11-3 — Eviction record sealing.
• Ind. Code § 22-9.5 — Indiana Fair Housing Act.
• Ind. Code § 24-4.6-1-101 — Statutory interest.
• Ind. Code § 34-52-1-1 — Attorney-fee reciprocity.
• Ind. Code § 36-1-22 — Limit on local landlord-tenant regulation.
• Ind. Trial Rules 4, 5, 6, 8, 12, 13, 15, 17, 38. https://rules.incourts.gov/Content/trial/default.htm
• Indiana Small Claims Rules 2, 5, 8. https://rules.incourts.gov/Content/smcl/default.htm
• 15 U.S.C. § 9058 — CARES Act.
• 42 U.S.C. §§ 3604, 3613(c) — federal Fair Housing Act.
• 50 U.S.C. § 3951 — Servicemembers Civil Relief Act.
• 24 C.F.R. Part 100 — HUD FHA implementing regulations.
• Theiss v. Weiss, 166 Ind. App. 244 (1975) — common-law warranty of habitability.
• Breezewood Mgmt. Co. v. Maltbie, 411 N.E.2d 670 (Ind. Ct. App. 1980).
• King v. Sweet, 174 Ind. App. 1 (1977) — self-help bar.
• Indianapolis-Marion County Code of Ordinances Title VIII, Chapters 581, 582.
• Indiana Legal Help — Eviction Sealing Form. https://indianalegalhelp.org/legal-topic/eviction-sealing-form/
• Heartland Pro Bono Council — https://heartlandprobono.com.
• Indiana Legal Services — 1-800-869-0212.

END OF ANSWER