Tenant Answer and Affirmative Defenses to Forcible Entry and Detainer Complaint (Nebraska)

TENANT ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS — NEBRASKA FED ACTION

TABLE OF CONTENTS

1. Caption
2. Answer to Specific Allegations
3. General Denial
4. Affirmative Defenses
5. Counterclaims
6. Prayer for Relief
7. Demand for Jury Trial
8. Verification
9. Signature and Service Block
10. Certificate of Service
11. Exhibits
12. Nebraska Practice Notes
13. Sources and References

1. CAPTION

STATE OF NEBRASKA

IN THE COUNTY COURT OF [COUNTY NAME] COUNTY

CASE NO. [________________________________]

ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS OF DEFENDANT [TENANT NAME]

Defendant [TENANT NAME] ("Tenant"), by and through undersigned counsel [OR pro se], answers Plaintiff's Complaint for Forcible Entry and Detainer (the "Complaint") as follows:

2. ANSWER TO SPECIFIC ALLEGATIONS

2.1. Paragraph 2.1 of the Complaint: [ADMITTED / DENIED].

2.2. Paragraph 2.2 of the Complaint: [ADMITTED / DENIED].

2.3. Paragraph 2.3 of the Complaint: [ADMITTED / DENIED].

2.4. Paragraph 2.4 of the Complaint: [ADMITTED / DENIED].

2.5. Paragraph 2.5 of the Complaint: [ADMITTED / DENIED].

2.6. Paragraph 2.6 of the Complaint: [ADMITTED / DENIED].

2.7. Paragraph 2.7 of the Complaint: [ADMITTED / DENIED].

3.1-3.6. Paragraphs 3.1 through 3.6 of the Complaint: respond paragraph by paragraph [ADMITTED / DENIED].

4.1-4.5. Paragraphs 4.1 through 4.5 of the Complaint: respond paragraph by paragraph [ADMITTED / DENIED], including specific denials regarding service, content, and timing of the predicate Notice.

5.1-5.6. Paragraphs 5.1 through 5.6 (Count I): DENIED, except as expressly admitted above.

6.1-6.4. Paragraphs 6.1 through 6.4 (Count II): DENIED, except as expressly admitted above. Tenant specifically denies the rent-due figures and any late fees claimed.

7.1-7.4. Paragraphs 7.1 through 7.4 (Count III): DENIED, except as expressly admitted above. Tenant specifically denies any willful or bad-faith holdover.

3. GENERAL DENIAL

Tenant denies each and every allegation of the Complaint not specifically admitted above and demands strict proof thereof.

4. AFFIRMATIVE DEFENSES

For affirmative defenses to the Complaint, Tenant alleges as follows. Each defense is pleaded in the alternative and is asserted without conceding facts denied above.

4.1. First Affirmative Defense — Defective Notice

The predicate notice attached as Exhibit B to the Complaint (the "Notice") is fatally defective and fails to comply with the requirements of Neb. Rev. Stat. § 76-1431 and/or § 76-1437 in one or more of the following respects:

• ☐ The Notice does not state the correct cure or termination period required by statute;
• ☐ The Notice does not specify the acts and omissions constituting the alleged breach with sufficient particularity to permit cure;
• ☐ The Notice was served fewer than the statutory minimum days before the termination/trial date;
• ☐ The Notice was not properly served on Tenant in a manner reasonably calculated to give actual notice;
• ☐ The Notice misstates the rent or amount due (overstating or including non-rent charges as rent);
• ☐ The Notice was issued or served before the rent was actually past due;
• ☐ The Notice fails to identify the Landlord or fails to identify the rental agreement;
• ☐ Other: [________________________________].

A defective predicate notice is a complete defense to a forcible entry and detainer action. See, e.g., applicable URLTA case law construing § 76-1431.

4.2. Second Affirmative Defense — Breach of Implied Warranty of Habitability (§ 76-1419)

Plaintiff has materially failed to comply with Neb. Rev. Stat. § 76-1419 in one or more of the following respects, materially affecting the health and safety of Tenant and any occupants:

• ☐ Failure to maintain the Premises in a fit and habitable condition;
• ☐ Failure to comply with applicable housing or building codes after notice;
• ☐ Failure to maintain electrical, plumbing, sanitary, heating, ventilating, or air-conditioning systems in good and safe working order;
• ☐ Failure to supply running water, reasonable amounts of hot water, and reasonable heat;
• ☐ Failure to maintain common areas in clean and safe condition;
• ☐ Other: [DESCRIBE — e.g., persistent mold, sewage backup, pest infestation, broken windows, lack of secure entry, lack of heat in winter].

Tenant gave written or actual notice of the conditions on [__/__/____] (Exhibit [__]), and Plaintiff failed to remedy them within a reasonable time. Pursuant to § 76-1430, Tenant is entitled to assert this breach as an affirmative defense, to recover damages and reasonable attorney fees if Plaintiff's noncompliance is willful, and to obtain such other remedies as the Court deems just.

4.3. Third Affirmative Defense — Retaliation (§ 76-1439)

This action constitutes prohibited retaliatory conduct under Neb. Rev. Stat. § 76-1439. After Tenant [describe protected activity — e.g., complained on [__/__/____] to [agency] about housing-code violations; joined a tenants' union; demanded repairs in writing], Plaintiff brought this action for possession (and/or increased rent or decreased services) substantially because of that protected activity.

The temporal proximity between Tenant's protected activity ([__/__/____]) and Plaintiff's adverse action ([__/__/____]) supports an inference of retaliatory motive. Retaliation is a complete defense to possession under § 76-1439.

4.4. Fourth Affirmative Defense — Discrimination (Fair Housing Acts)

Plaintiff's action for possession is motivated, in whole or in part, by Tenant's status as a member of one or more protected classes under the Nebraska Fair Housing Act, Neb. Rev. Stat. §§ 20-301 to 20-344, and the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., including: ☐ race; ☐ color; ☐ religion; ☐ national origin; ☐ sex (including sexual orientation and gender identity); ☐ familial status; ☐ disability; ☐ source of income (where local law applies); ☐ other: [________________________________].

In the alternative, Plaintiff has refused to make reasonable accommodations or modifications required by the FHAct for Tenant's disability [describe accommodation requested and denied].

4.5. Fifth Affirmative Defense — Self-Help Eviction (§§ 76-1430, 76-1436, 76-1441)

Plaintiff has engaged in self-help eviction conduct prohibited by Neb. Rev. Stat. §§ 76-1430, 76-1436, and 76-1441, including: ☐ changing locks; ☐ removing Tenant's personal property; ☐ shutting off or causing the interruption of electricity, gas, water, or other essential service; ☐ entering without consent or authority; ☐ harassment.

Tenant invokes the remedies of § 76-1430 / § 76-1436, including liquidated damages equal to three (3) months' periodic rent and reasonable attorney fees, as set forth in the Counterclaim below.

4.6. Sixth Affirmative Defense — Waiver / Acceptance of Rent

Plaintiff accepted rent from Tenant on [__/__/____] (and/or thereafter) with knowledge of the alleged breach and without express written reservation of rights. Such acceptance constitutes a waiver of Plaintiff's right to terminate the tenancy on the grounds asserted in the Notice and Complaint.

4.7. Seventh Affirmative Defense — Failure to Perform Conditions Precedent

Plaintiff has failed to perform conditions precedent to maintaining this action, including but not limited to compliance with applicable rental-licensing requirements, registration obligations, and/or HUD/Section-8 federal pre-suit notice requirements (24 C.F.R. Parts 247, 880, 882, 966, 982, as applicable).

4.8. Eighth Affirmative Defense — Improper Parties / Standing

Plaintiff lacks standing to maintain this action because: ☐ Plaintiff is not the owner or authorized agent of the owner of the Premises; ☐ Plaintiff is a foreign entity not in good standing in Nebraska; ☐ the Rental Agreement is with a different entity; ☐ other: [________________________________].

4.9. Ninth Affirmative Defense — Improper Venue / Lack of Subject-Matter Jurisdiction

The action is brought in an improper court because: ☐ the Premises are located in a different county; ☐ the amount in controversy exceeds county-court jurisdictional limits and was not properly limited; ☐ the rental agreement contains a forum-selection clause; ☐ other.

4.10. Tenth Affirmative Defense — Security Deposit Setoff (§ 76-1416)

To the extent Plaintiff seeks unpaid rent, Tenant is entitled to setoff for the security deposit (and prepaid rent) wrongfully withheld in violation of Neb. Rev. Stat. § 76-1416, plus liquidated damages for willful failure to return.

4.11. Eleventh Affirmative Defense — Mitigation / Failure to Mitigate Damages

Plaintiff has failed to mitigate any damages claimed in Counts II and III by, among other things, refusing rent tendered by Tenant or third parties (including rental-assistance programs) and/or failing to make reasonable efforts to re-rent the Premises.

4.12. Twelfth Affirmative Defense — Reservation

Tenant reserves the right to assert additional affirmative defenses as discovery proceeds and as the facts may warrant.

5. COUNTERCLAIMS

Tenant, by way of counterclaim against Plaintiff, alleges as follows:

Count I — Breach of Implied Warranty of Habitability (§ 76-1419 / § 76-1430)

5.1. Tenant incorporates paragraphs 4.2 above as though fully set forth herein.

5.2. Plaintiff's noncompliance with § 76-1419 is willful within the meaning of § 76-1430 and entitles Tenant to actual damages, injunctive relief, reasonable attorney fees, and rent abatement for the period during which the Premises were uninhabitable.

5.3. Tenant has been damaged in the amount of $[____________] (or such greater sum as the evidence may show), comprising [diminution of rental value, out-of-pocket repair costs, alternative housing, medical expenses, property damage, etc.].

Count II — Wrongful Withholding of Security Deposit (§ 76-1416)

5.4. To the extent the tenancy has terminated and Plaintiff has failed to return Tenant's security deposit (and any prepaid rent) within fourteen (14) days as required by § 76-1416, Tenant is entitled to recover the deposit balance, liquidated damages equal to one month's periodic rent or twice the deposit (whichever is less), and reasonable attorney fees.

Count III — Self-Help Eviction (§§ 76-1430, 76-1436)

5.5. Tenant incorporates paragraphs 4.5 above as though fully set forth herein.

5.6. Plaintiff's unlawful exclusion or interruption of essential services entitles Tenant to recover possession or terminate the rental agreement and to recover liquidated damages equal to three (3) months' periodic rent and reasonable attorney fees.

Count IV — Retaliation (§ 76-1439)

5.7. Tenant incorporates paragraphs 4.3 above as though fully set forth herein.

5.8. Plaintiff's retaliatory conduct entitles Tenant to the remedies in § 76-1430 and to a complete defense in this action.

Count V — Fair Housing Violations

5.9. Tenant incorporates paragraphs 4.4 above as though fully set forth herein.

5.10. Plaintiff's discriminatory conduct violates the Nebraska Fair Housing Act and the Federal Fair Housing Act and entitles Tenant to actual damages, punitive damages (under federal law), injunctive relief, and reasonable attorney fees.

6. PRAYER FOR RELIEF

WHEREFORE, Tenant respectfully requests that this Court enter judgment as follows:

A. Dismissing the Complaint in its entirety with prejudice and denying Plaintiff any restitution of the Premises;

B. On the Counterclaims, awarding Tenant:

1. Actual damages on the habitability counterclaim in an amount to be proven at trial;
2. Statutory liquidated damages under § 76-1416 (security deposit) and § 76-1436 (self-help) where applicable;
3. Damages and equitable relief on the retaliation and fair-housing counterclaims;
4. Reasonable attorney fees and costs as authorized by §§ 76-1416, 76-1430, 76-1436, 76-1439, the Fair Housing Acts, and the rental agreement;

C. Prejudgment and post-judgment interest at the rates set by Neb. Rev. Stat. §§ 45-103 and 45-103.02;

D. Setoff of any amounts found owing to Plaintiff against amounts owed to Tenant under the Counterclaims; and

E. Other relief the Court deems just and equitable.

7. DEMAND FOR JURY TRIAL

Pursuant to Neb. Const. art. I, § 6, and Neb. Rev. Stat. § 25-1109, Tenant demands a trial by jury on all issues so triable.

8. VERIFICATION

STATE OF NEBRASKA )
) ss.
COUNTY OF [_____] )

I, [TENANT NAME], being first duly sworn upon oath, depose and state that I am the Defendant in the foregoing action, that I have read the foregoing Answer, Affirmative Defenses, and Counterclaims, and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

Signature: [________________________________]

Subscribed and sworn to before me this [____] day of [MONTH], [YEAR].

[NOTARY SEAL]

Notary Public: [________________________________]

My commission expires: [__/__/____]

9. SIGNATURE AND SERVICE BLOCK

Respectfully submitted this [____] day of [MONTH], [YEAR].

[LAW FIRM NAME / PRO SE]

By: [________________________________]

[ATTORNEY NAME], NSBA #[________] (if counsel)

[ADDRESS]

Telephone: [________________________________]

Email: [________________________________]

Attorney for Defendant [TENANT NAME] [or "Defendant pro se"]

10. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Answer, Affirmative Defenses, and Counterclaims on the following counsel and parties of record by [e-filing through Nebraska's Justice eFiling system / U.S. Mail / hand delivery / email by agreement]:

[PLAINTIFF'S COUNSEL NAME]

[FIRM NAME]

[ADDRESS]

[EMAIL]

By: [________________________________]

11. EXHIBITS

• Exhibit 1 — Communications regarding habitability conditions (texts, emails, certified-mail receipts)
• Exhibit 2 — Photographs / video of conditions
• Exhibit 3 — Government code-enforcement reports or correspondence
• Exhibit 4 — Rent ledger / proof of rent payments
• Exhibit 5 — Reasonable-accommodation request and supporting documentation (if FHA defense)
• Exhibit 6 — Security-deposit demand and any landlord response
• Exhibit 7 — Predicate Notice and proof of defective service (if available)
• Exhibit 8 — Witness declarations

12. NEBRASKA PRACTICE NOTES

• Speed of FED. Trial occurs 10 to 14 days after summons issuance. File the Answer and any motions (including a motion to dismiss for defective notice or improper venue) before the hearing whenever possible; appearing at the hearing without a written answer is permitted but tactically inferior.
• Bifurcation. Plaintiffs may bifurcate possession from damages under § 25-21,221.01. If they do so, prepare to defend possession on a compressed schedule and assert counterclaims in the damages phase.
• Appeal and supersedeas. A defendant has thirty (30) days to appeal a county-court judgment to district court (Neb. Rev. Stat. § 25-2729). To stay the writ of restitution pending appeal, the tenant must comply with § 76-1447 — depositing an undertaking or cash bond and paying ongoing periodic rent into court. Failure to perfect the bond/rent payments allows the writ to issue notwithstanding the appeal.
• Writ of restitution timing. Once issued, the writ must be executed within 10 days. Tenants should plan for move-out logistics and pursue any available emergency-rental-assistance or relocation programs.
• Habitability documentation. Strong habitability defenses require contemporaneous documentation: written notice to landlord, photographs with metadata, code-enforcement complaints, and witness statements. Verbal complaints alone often fail at trial.
• Subsidized housing. Section 8 voucher and public-housing tenants have additional federal protections; assert those defenses (24 C.F.R. Parts 247, 880, 882, 966, 982) and consider notifying the public-housing authority.
• Mobile-home tenancies. Use the Mobile Home Landlord and Tenant Act (§ 76-1450 et seq.); this template requires modification for those tenancies.
• Rental assistance. Under federal Emergency Rental Assistance and various state/local programs, tenants may obtain funds to cure rent arrears. Inform the court of pending applications; some judges grant continuances.
• Domestic violence protections. Where tenancy actions arise from incidents of domestic violence, additional protections may apply under federal VAWA and Nebraska law; raise as a separate defense and consider sealing requests.
• Eviction-record sealing. Nebraska does not yet have a comprehensive automatic-sealing statute. Some practitioners pursue case-specific sealing or expungement on equitable grounds; verify current law and Supreme Court rules.

13. SOURCES AND REFERENCES

• Neb. Rev. Stat. §§ 25-21,219 to 25-21,235 (Forcible Entry and Detainer): https://nebraskalegislature.gov/laws/display_html.php?begin_section=25-21,219&end_section=25-21,235
• Neb. Rev. Stat. § 76-1419 (Landlord to maintain fit premises): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1419
• Neb. Rev. Stat. § 76-1416 (Security deposits; prepaid rent): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1416
• Neb. Rev. Stat. § 76-1430 (Tenant remedies for landlord noncompliance): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1430
• Neb. Rev. Stat. § 76-1436 (Unlawful exclusion or service interruption): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1436
• Neb. Rev. Stat. § 76-1439 (Retaliatory conduct prohibited): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1439
• Neb. Rev. Stat. § 76-1441 (Action for possession; self-help bar): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1441
• Neb. Rev. Stat. § 76-1447 (Appeal; supersedeas; bond): https://nebraskalegislature.gov/laws/statutes.php?statute=76-1447
• Nebraska Fair Housing Act (§§ 20-301 to 20-344): https://nebraskalegislature.gov/laws/display_html.php?begin_section=20-301&end_section=20-344
• Federal Fair Housing Act, 42 U.S.C. § 3601 et seq.: https://www.justice.gov/crt/fair-housing-act-1
• 24 C.F.R. Parts 247, 880, 882, 966, 982 (HUD pre-suit notice requirements): https://www.ecfr.gov/current/title-24
• Nebraska Equal Opportunity Commission — Fair Housing Act: https://neoc.nebraska.gov/sites/default/files/2024-06/NebraskaFairHousingAct.pdf
• Legal Aid of Nebraska — Landlord Tenant Handbook: https://legalaidofnebraska.org/file_download/2595770f-9acb-4623-b5e2-c3b98d5fb01a
• Nebraska Judicial Branch — Self-Help / Tenant: https://nebraskajudicial.gov/self-help/renterlandlord
• Baird Holm — Nebraska Supreme Court on jury trial in residential evictions: https://www.bairdholm.com/blog/nebraska-supreme-court-mandatory-bench-trials-for-residential-evictions-may-violate-constitutional-jury-guarantee/