Tenant's Answer to Complaint in Summary Ejectment (Drafting Companion to AOC-CVM-202)

ANSWER TO COMPLAINT IN SUMMARY EJECTMENT — NORTH CAROLINA (DRAFTING COMPANION TO AOC-CVM-202)

TABLE OF CONTENTS

1. Caption
2. General Denial and Admissions
3. Specific Responses to the Complaint
4. Affirmative Defenses
5. Counterclaims
6. Setoff for Security Deposit and Habitability Damages
7. Federal and Statutory Special Protections
8. Demand for Discovery / Production at Trial
9. Prayer for Relief
10. Verification
11. Signature and Filing
12. Magistrate Hearing Preparation Checklist (Tenant)
13. North Carolina Practice Notes (Tenant Perspective)
14. Sources and References

1. CAPTION

STATE OF NORTH CAROLINA

[COUNTY NAME] COUNTY

IN THE GENERAL COURT OF JUSTICE

DISTRICT COURT DIVISION — SMALL CLAIMS COURT (MAGISTRATE)

FILE NO. [________________________________]

ANSWER TO COMPLAINT IN SUMMARY EJECTMENT
(N.C. Gen. Stat. § 42-26 et seq.; AOC-CVM-202)

Defendant Tenant, in answer to the Complaint in Summary Ejectment, says:

2. GENERAL DENIAL AND ADMISSIONS

2.1. Tenant denies that Plaintiff is entitled to the possession of the Premises and denies any obligation to pay the sums demanded in the Complaint, except as expressly admitted below.

2.2. Tenant admits that:

☐ Tenant occupies the Premises located at [ADDRESS].

☐ A rental agreement exists / existed between Plaintiff and Tenant [written / oral] dated [__/__/____].

☐ [Other admissions, if any.]

2.3. Except as expressly admitted, Tenant denies each and every allegation of the Complaint and demands strict proof thereof.

3. SPECIFIC RESPONSES TO THE COMPLAINT

3.1. Tenancy admitted; nature disputed. Tenant admits a tenancy exists but denies that it is [fixed-term ending [DATE] / month-to-month / etc.] as alleged, and asserts the tenancy is in fact [CORRECT CHARACTERIZATION].

3.2. Rent amount disputed. The base rent is [$_____ correct / less than alleged: $_____]. Plaintiff's calculation includes [CHARGES THAT ARE NOT RENT, NOT AUTHORIZED, OR EXCEED STATUTORY CAPS].

3.3. Pre-suit notice disputed. Tenant [denies receiving the alleged pre-suit notice / disputes the content / disputes the manner of service / disputes the timing], specifying: [FACTS].

3.4. Forfeiture-clause coverage disputed. The Lease does NOT contain a forfeiture-and-reentry clause covering the alleged breach, defeating summary ejectment under § 42-26(a)(2). [Cite or quote relevant lease section.]

3.5. Service of summons disputed. Tenant disputes proper service of the summons and complaint per § 42-29 because [FACTS — e.g., Sheriff did not attempt personal service, posting was not on a conspicuous part, mailing was not sent, etc.].

3.6. Damages disputed. Tenant disputes the amount of damages claimed, particularly [ITEMIZE THE DISPUTED CHARGES].

4. AFFIRMATIVE DEFENSES

Tenant asserts the following affirmative defenses, any one of which is sufficient to defeat or limit Plaintiff's claim:

4.1. Defective Pre-Suit Notice (§ 42-3 / § 42-14)

☐ Plaintiff failed to serve a 10-day demand under § 42-3 before filing on a nonpayment ground.

☐ The demand served was defective in [content / amount / signatory authority / service].

☐ The 10-day period had not elapsed before filing on [FILING DATE].

☐ For periodic-tenancy holdover, Plaintiff failed to serve the § 42-14 notice [7 days month-to-month / 2 days week-to-week / 1 month year-to-year / 60 days mfg-home park] before the end of the rental period.

4.2. No Forfeiture Clause Covering the Breach (§ 42-26(a)(2))

☐ The Lease lacks an express forfeiture-and-reentry clause covering the alleged breach. Summary ejectment is unavailable; Plaintiff must wait for term expiration or sue in District Court for breach. See Stanley v. Harvey, 90 N.C. App. 535 (1988).

4.3. Habitability — Residential Rental Agreements Act (§ 42-42; § 42-44(c))

☐ Plaintiff has breached the duties of § 42-42, including failure to:

• Provide premises fit and habitable (§ 42-42(a)(2)).
• Comply with applicable building and housing codes (§ 42-42(a)(1)).
• Make all repairs and do whatever is necessary to keep the premises fit and habitable.
• Maintain in good and safe working order all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances supplied or required to be supplied by Plaintiff.
• Provide operable smoke detectors and carbon-monoxide detectors (§ 42-42(a)(5), (7)).

☐ Specific defects affecting habitability: [ITEMIZE WITH DATES, REQUESTS MADE, RESPONSES OR LACK THEREOF, PHOTOGRAPHS, INSPECTION REPORTS, CODE VIOLATIONS].

☐ Tenant gave notice to Plaintiff of these defects on [__/__/____], and Plaintiff has failed to cure within a reasonable time.

☐ The duty to pay rent and the duty to maintain are mutually dependent (§ 42-41); Tenant is entitled to a rent abatement equal to the diminution in fair rental value caused by the uncured defects.

4.4. Retaliatory Eviction (§ 42-37.1; § 42-37.2)

☐ Plaintiff's action is substantially in response to Tenant's protected activity within the preceding twelve (12) months, including:

• Good-faith complaint or repair request to Plaintiff regarding habitability defects (§ 42-37.1(a)(2)).
• Filing a complaint with a government authority concerning conditions at the Premises (§ 42-37.1(a)(1)).
• Good-faith attempt to exercise rights under the Lease or NC law (§ 42-37.1(a)(3)).
• Participation in a tenant organization (§ 42-37.1(a)(4)).

☐ Specific protected activity: [DATE, FORM, CONTENT, RECIPIENT].

☐ Plaintiff's stated grounds are pretextual; the action would not have been filed but for Tenant's protected activity.

4.5. Fair Housing — Discrimination (Chapter 41A; FHA)

☐ Plaintiff's action is motivated, in whole or in part, by Tenant's or a household member's protected status under the federal Fair Housing Act (42 U.S.C. §§ 3601 et seq.) and/or the NC State Fair Housing Act (Chapter 41A, particularly § 41A-4): race, color, religion, sex (including sexual orientation/gender identity per HUD guidance), national origin, familial status, or disability.

☐ Plaintiff failed to provide a reasonable accommodation requested by Tenant on [__/__/____] for [DESCRIBE DISABILITY-RELATED REQUEST].

☐ Specific facts demonstrating discriminatory motive: [FACTS].

4.6. Self-Help Eviction (§ 42-25.6) — Tenant Already Constructively Evicted

☐ Plaintiff or Plaintiff's agent has engaged in self-help measures barred by § 42-25.6, including: changing locks, removing personal property, terminating utilities, removing doors or windows, or otherwise constructively ousting Tenant.

☐ Tenant is entitled to recover possession (or terminate the lease) and to damages, statutory penalties, and attorney's fees per § 42-25.9 and § 42-25.6.

4.7. Waiver by Acceptance of Rent

☐ Plaintiff knowingly accepted rent on [__/__/____] after the alleged breach with full knowledge of the breach, thereby waiving the forfeiture and reinstating the Lease.

☐ No written non-waiver was signed by Tenant in conjunction with the rent acceptance.

4.8. Equitable Relief from Forfeiture

☐ Even if a technical forfeiture has occurred, equity should relieve against forfeiture because Tenant is willing and able to cure the breach in full and pay any reasonable damages caused, and forfeiture under the circumstances would be unconscionable.

4.9. Improper Charges (§ 42-46)

☐ Plaintiff's demand includes late fees exceeding the cap of the greater of $15.00 or 5% of monthly rent (§ 42-46(a)).

☐ Plaintiff has charged late fees before rent was 5 days late.

☐ Plaintiff has charged eviction-related fees (complaint-filing, court-appearance, second-trial) before any judgment for possession was entered, in violation of § 42-46(e)–(g).

☐ Plaintiff has charged returned-check fees in excess of $25 (§ 25-3-506).

☐ Plaintiff has demanded attorney's fees in excess of the § 6-21.2 cap of 15% of the outstanding balance, or without the required pre-suit notice.

4.10. SCRA Active-Duty Protection (50 U.S.C. § 3951)

☐ Tenant or a household member is on active duty in the uniformed services of the United States. The Servicemembers Civil Relief Act bars or stays this eviction. [Attach orders or DEERS verification as Exhibit ___.]

4.11. VAWA Protections (34 U.S.C. § 12491)

☐ Tenant or a household member is a victim of domestic violence, dating violence, sexual assault, or stalking. The Violence Against Women Act prohibits using the abuse as cause for eviction in covered housing programs and provides for confidentiality and lease bifurcation. [Attach VAWA self-certification HUD-5382 as Exhibit ___.]

4.12. Bankruptcy Automatic Stay (11 U.S.C. § 362)

☐ Tenant filed a petition under Title 11 of the U.S. Code on [__/__/____] in the [DISTRICT] Bankruptcy Court, Case No. [___]. The automatic stay bars continuation of this action absent relief from stay. [Attach Notice of Bankruptcy as Exhibit ___.]

4.13. Subsidized Housing Procedural Defects

☐ The tenancy is subject to [Section 8 voucher / Project-based Section 8 / public housing / LIHTC / USDA RD], requiring additional federal notice content and grievance procedures that Plaintiff failed to follow under [24 C.F.R. § 982.310 / Part 247 / Part 966].

4.14. Tenancy Has Not Yet Terminated

☐ The tenancy remains in effect because [FACTS — e.g., automatic-renewal clause was triggered, lease was extended by oral agreement, Plaintiff accepted rent for the period in question].

4.15. Failure of a Prior Material Condition by Plaintiff

☐ Plaintiff failed to perform a material precondition of Tenant's obligations, including [e.g., providing the unit on the agreed occupancy date, completing promised repairs or improvements, providing keys to all required areas].

5. COUNTERCLAIMS

Tenant asserts the following counterclaim(s) against Plaintiff:

5.1. Counterclaim 1 — Breach of Habitability / RRAA (§§ 42-42, 42-44)

• Plaintiff materially breached § 42-42 by [DESCRIBE].
• Tenant suffered damages including diminution in rental value, out-of-pocket repair costs, displacement, medical expenses (mold, lead, etc.), and consequential losses.
• Damages: $[________].

5.2. Counterclaim 2 — Self-Help Eviction (§ 42-25.6, § 42-25.9)

• Plaintiff engaged in unlawful self-help on [__/__/____] by [DESCRIBE — lockout, utility shutoff, removal of property, etc.].
• Tenant is entitled to actual damages, statutory damages, and attorney's fees per § 42-25.9.
• Damages: $[________].

5.3. Counterclaim 3 — Tenant Security Deposit Act (§§ 42-50–42-56)

• Plaintiff failed to comply with the trust-account, notice, and accounting requirements of the TSDA, including failure to [provide notice of where deposit is held / itemize deductions / refund balance within 30 days of termination].
• Damages: forfeiture of Plaintiff's right to retain deposit, plus actual damages and attorney's fees if willful.
• Damages: $[________].

5.4. Counterclaim 4 — Retaliation (§ 42-37.2)

• Plaintiff's retaliatory conduct caused Tenant to suffer damages including emotional distress, costs to relocate, lost wages.
• Damages: $[________].

5.5. Counterclaim 5 — Unfair and Deceptive Trade Practices (§ 75-1.1)

• Plaintiff's conduct (e.g., unlawful self-help, knowingly false representations, unlawful fees, harassment) constitutes an unfair or deceptive practice in or affecting commerce.
• Tenant is entitled to treble damages and attorney's fees per § 75-16 and § 75-16.1.
• Damages: $[________] (trebled to $[________]).

5.6. Counterclaim 6 — Fair Housing Violation (Chapter 41A; FHA)

• Plaintiff's conduct violated the State Fair Housing Act and/or federal FHA.
• Damages: $[________], plus civil penalties, injunctive relief, and attorney's fees as authorized by statute. [Note: Most fair-housing damages exceed Small Claims jurisdiction; consider filing administratively with HUD or the NC Human Relations Commission, or in federal/superior court.]

6. SETOFF FOR SECURITY DEPOSIT AND HABITABILITY DAMAGES

6.1. Tenant is entitled to a setoff against any rent or damages found owing in the amount of:

6.2. Tenant requests that any judgment for Plaintiff be reduced by the setoff above; if the setoff exceeds the amount owed to Plaintiff, Tenant is entitled to judgment in the excess amount.

7. FEDERAL AND STATUTORY SPECIAL PROTECTIONS

7.1. SCRA. Tenant [is / is not] an active-duty servicemember entitled to SCRA protection.

7.2. VAWA. Tenant [is / is not] invoking VAWA protections; HUD-5382 self-certification [attached / will be filed under seal].

7.3. CARES Act. The Premises [are / are not] a "covered dwelling" under 15 U.S.C. § 9058 requiring 30-day notice.

7.4. Bankruptcy. Tenant [has filed / has not filed] a petition under Title 11.

7.5. Subsidized housing. The tenancy [is / is not] subject to a federal subsidy program; if so, the program-specific notice and grievance procedures [have / have not] been satisfied.

8. DEMAND FOR DISCOVERY / PRODUCTION AT TRIAL

8.1. Tenant respectfully requests the magistrate to direct Plaintiff to produce at trial, or that a subpoena duces tecum issue for, the following:

☐ Original signed Lease and any amendments.

☐ Complete rent ledger from inception of tenancy.

☐ All written communications between Plaintiff and Tenant, including text messages and emails.

☐ Pre-suit notices and proofs of service, in original.

☐ Maintenance/repair logs and work-order records for the Premises.

☐ Code-enforcement correspondence concerning the Premises.

☐ Trust-account statements showing deposit of Tenant's security deposit (§ 42-50).

☐ Documentation supporting any claim for fees beyond base rent.

9. PRAYER FOR RELIEF

WHEREFORE, Defendant Tenant prays the Court to:

A. DENY Plaintiff's prayer for possession of the Premises;

B. DENY Plaintiff's prayer for money damages, or in the alternative reduce the amount of any judgment by the setoff in Section 6;

C. Enter judgment for Tenant on each of the counterclaims pleaded in Section 5;

D. Award Tenant costs, statutory damages, and reasonable attorney's fees as authorized by §§ 42-25.9, 42-37.2, 42-56, 75-16.1, and 6-21.2;

E. Stay any writ of possession pending appeal under § 7A-228 if a money judgment is entered against Tenant, subject to compliance with § 42-34;

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

10. VERIFICATION

STATE OF NORTH CAROLINA

COUNTY OF [________________]

I, [TENANT NAME], being duly sworn, depose and say: I am the Defendant in the above-captioned action. I have read the foregoing Answer and know the contents thereof. The same is true of my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

____________________________________
[TENANT NAME]

Sworn to and subscribed before me this [___] day of [MONTH], 20[__].

____________________________________
Notary Public

My Commission Expires: [__/__/____]

[Notary Seal]

11. SIGNATURE AND FILING

Date: [__/__/____]

____________________________________
[TENANT NAME, OR ATTORNEY NAME]
[N.C. State Bar No., if attorney: ___]
[FIRM, if applicable]
[ADDRESS]
[CITY, NC ZIP]
Telephone: [___-___-____]
Email: [________________________________]

FILING CHECKLIST:

☐ AOC-CVM-202 fully completed (transferred from this companion).

☐ Continuation sheet attached if needed.

☐ Exhibits attached and listed (lease, repair requests, photographs, code reports, SCRA orders, VAWA HUD-5382, bankruptcy notice, etc.).

☐ Filing fee paid OR Affidavit of Indigency (AOC-G-106) submitted.

☐ Copy served on Plaintiff or Plaintiff's counsel.

12. MAGISTRATE HEARING PREPARATION CHECKLIST (TENANT)

12.1. Bring to hearing:

☐ Filed Answer (AOC-CVM-202) and this companion (if attached).

☐ Original Lease.

☐ Rent receipts, money-order stubs, bank statements showing rent payments.

☐ Photographs and videos of habitability defects, dated.

☐ Repair request texts/emails/letters with timestamps.

☐ Code-enforcement reports or housing-inspection citations.

☐ Witness statements (neighbors, household members, contractors).

☐ Medical records if injuries from habitability conditions are claimed.

☐ SCRA orders / DEERS verification (if applicable).

☐ VAWA HUD-5382 (if applicable; can be submitted under seal).

☐ Bankruptcy filing notice (if applicable).

☐ Subsidy paperwork (HUD-50058, HCV voucher, lease addendum).

12.2. Anticipate Plaintiff's evidence and prepare to challenge:

• Verify the pre-suit notice (date, content, signatory, service method).
• Verify the lease forfeiture clause (or absence of one for non-rent breaches).
• Verify proper Sheriff service of the summons.
• Verify the rent ledger for unauthorized charges (excessive late fees, eviction fees pre-judgment, attorney fees in excess of cap).

12.3. Possible outcomes:

• Dismissal in tenant's favor.
• Continuance to allow legal aid representation or document gathering.
• Settlement / consent judgment with payment plan or move-out date.
• Judgment for Plaintiff with money damages reduced by setoff.
• Judgment for Plaintiff in full, triggering 10-day appeal clock.

12.4. If judgment goes against tenant:

☐ File Notice of Appeal orally in open court OR in writing within 10 days.

☐ Pay court costs of appeal within 10 days of judgment OR file Affidavit of Indigency (AOC-G-106).

☐ To stay the writ of possession, comply with § 42-34: post bond and pay accruing rent into the clerk's office (one rental period in advance, then ongoing as it comes due).

☐ Contact Legal Aid of North Carolina (1-866-219-5262) immediately for de novo representation.

13. NORTH CAROLINA PRACTICE NOTES (TENANT PERSPECTIVE)

13.1. No written answer required, but advisable. Tenants may raise oral defenses at the magistrate hearing. A written Answer (AOC-CVM-202) creates a clearer record for de novo appeal and signals seriousness to the magistrate.

13.2. Habitability is a true defense, not just a counterclaim. Under § 42-44(c) and Miller v. C.W. Myers Trading Post, 85 N.C. App. 362 (1987), and Foley v. Hayes, the tenant may assert the landlord's RRAA breach as a complete or partial defense to nonpayment summary ejectment. The duty to pay rent and the duty to maintain are mutually dependent (§ 42-41).

13.3. Documentation is everything. Magistrate hearings are short. Prevailing requires concise, dated, and corroborated evidence: photographs, written repair requests, code-enforcement correspondence, witness statements.

13.4. Retaliation 12-month look-back. § 42-37.1(b) creates a presumption that an action is retaliatory if filed within 12 months of protected activity. Document protected activity precisely.

13.5. Self-help is gold. A documented lockout, utility shutoff, or property removal by the landlord triggers § 42-25.6 and § 42-25.9 and is often dispositive of the entire action — and supports treble damages under § 75-1.1.

13.6. Security deposit setoff. Plaintiff often holds a security deposit equal to one to two months' rent. Per the Tenant Security Deposit Act, willful failure to comply with notice, trust-account, and accounting rules forfeits the landlord's right to retain the deposit (§ 42-55), independently of the underlying ejectment claim.

13.7. Eviction-fee scrutiny. Plaintiffs frequently demand eviction fees pre-judgment, in violation of § 42-46(e)–(g). Subtract these line items from any pre-judgment demand.

13.8. Appeal de novo creates fresh District Court trial. § 7A-228 appeal vacates the magistrate's findings; District Court hears the case anew. Tenants who lose before the magistrate often prevail on appeal with counsel — Legal Aid of NC, county pro bono programs, and Wake/Mecklenburg/Durham right-to-counsel pilots provide representation.

13.9. § 42-34 bond requirement. To stay the writ of possession during appeal, tenants must (a) pay court costs within 10 days, (b) post the § 42-34 bond (typically one period's rent), and (c) pay accruing rent into the clerk's office as each period comes due. Failure invites expedited writ execution.

13.10. Indigency waiver. Tenants unable to pay costs and bond may file AOC-G-106 (petition to proceed as indigent). Approval waives most fees, but does NOT waive the duty to pay accruing rent into the clerk's office for stay-pending-appeal purposes (the constitutionality of this is contested but currently enforced).

13.11. County-specific resources.

• Wake County: Eviction Diversion Program (Legal Aid of NC partnership); rental-assistance referrals.
• Mecklenburg County: Right-to-Counsel pilot for income-qualifying tenants; Charlotte Legal Aid Society.
• Durham County: Eviction Diversion Program with right-to-counsel and rental assistance.
• Forsyth County: Mediation-based eviction-diversion.
• Guilford County: Greensboro Housing Coalition; Legal Aid of NC outreach.
• Buncombe County: Pisgah Legal Services; Asheville eviction-diversion.

13.12. Manufactured-home tenants. Article 7 and § 42-14.3 provide additional protections, including 60-day notice for non-renewal and enhanced procedures for displacement.

13.13. CARES Act remains relevant. Some federally-backed properties continue to require 30-day notice. Verify property status using the National Low Income Housing Coalition's CARES Act lookup tool or directly with the landlord.

13.14. Bankruptcy stay nuances. § 362(b)(22) creates an exception that can lift the automatic stay for residential evictions where a pre-petition judgment for possession was entered. Tenant must file the § 362(l) certification within specified timeframes and deposit rent with the clerk to extend the stay. Consult bankruptcy counsel.

14. SOURCES AND REFERENCES

• N.C. Gen. Stat. § 42-3, § 42-14 — Pre-suit notices.
• N.C. Gen. Stat. § 42-25.6, § 42-25.9 — Self-help eviction prohibition and remedies.
• N.C. Gen. Stat. § 42-26, § 42-27, § 42-29 — Summary ejectment grounds and procedure.
• N.C. Gen. Stat. § 42-34 — Undertaking on appeal; stay of execution.
• N.C. Gen. Stat. § 42-37.1, § 42-37.2 — Retaliatory eviction defense and remedies.
• N.C. Gen. Stat. §§ 42-38 to 42-44.4 — Article 5 (Residential Rental Agreements Act).
• N.C. Gen. Stat. § 42-42 — Landlord's duties (habitability).
• N.C. Gen. Stat. § 42-43 — Tenant's duties.
• N.C. Gen. Stat. § 42-44(c), § 42-44(a) — Tenant defenses and self-help repair remedy.
• N.C. Gen. Stat. § 42-46 — Late, eviction, and returned-check fee caps.
• N.C. Gen. Stat. §§ 42-50 to 42-56 — Tenant Security Deposit Act.
• N.C. Gen. Stat. §§ 42-59 to 42-63 — Article 7 (Expedited eviction for criminal activity).
• N.C. Gen. Stat. Chapter 41A — State Fair Housing Act.
• N.C. Gen. Stat. § 75-1.1, § 75-16, § 75-16.1 — Unfair and Deceptive Trade Practices.
• N.C. Gen. Stat. § 7A-210, § 7A-228 — Small Claims jurisdiction and appeal.
• N.C. Gen. Stat. § 6-21.2 — Attorney's fees in obligation contracts.
• AOC-CVM-201 — Complaint in Summary Ejectment.
• AOC-CVM-202 — Answer to Complaint in Summary Ejectment.
• AOC-CVM-401 — Magistrate's Judgment in Summary Ejectment.
• AOC-G-106 — Petition / affidavit to proceed as indigent.
• 42 U.S.C. §§ 3601 et seq. — Federal Fair Housing Act.
• 50 U.S.C. § 3951 — Servicemembers Civil Relief Act.
• 34 U.S.C. § 12491 — Violence Against Women Act housing protections.
• 11 U.S.C. § 362 — Bankruptcy automatic stay.
• 15 U.S.C. § 9058 — CARES Act eviction notice (where applicable).
• 24 C.F.R. § 982.310, Part 247, Part 966 — HUD termination procedures.
• Miller v. C.W. Myers Trading Post, 85 N.C. App. 362 (1987) — habitability defense.
• Stanley v. Harvey, 90 N.C. App. 535 (1988) — forfeiture-clause requirement.
• Legal Aid of North Carolina, Eviction Defense Manual (most recent edition); 1-866-219-5262.
• UNC School of Government, On the Civil Side, summary ejectment series.
• North Carolina Judicial Branch, Small Claims self-help materials.