Tenant's Answer, Affirmative Defenses, Counterclaims, and Jury Demand to Petition for Wrongful Occupation (West Virginia)

RESPONDENT TENANT'S VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL — WEST VIRGINIA

TABLE OF CONTENTS

1. Caption
2. General Denial and Preservation of Defenses
3. Specific Responses to Petition Allegations
4. Affirmative Defenses
5. Counterclaims
6. Demand for Jury Trial
7. Request for Discovery / Removal
8. Prayer for Relief
9. Verification
10. Signature and Service Blocks
11. Certificate of Service
12. West Virginia Practice Notes
13. Sources and References

1. CAPTION

STATE OF WEST VIRGINIA

[COUNTY] COUNTY

IN THE [MAGISTRATE / CIRCUIT] COURT OF [COUNTY] COUNTY

CIVIL ACTION NO. [________________________________]

RESPONDENT'S VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL

COMES NOW Respondent [TENANT NAME] (the "Tenant"), by and through undersigned counsel, and for Tenant's Answer to the Verified Petition for Summary Relief for Wrongful Occupation of Residential Rental Property (the "Petition"), states as follows:

2. GENERAL DENIAL AND PRESERVATION OF DEFENSES

Tenant denies each and every allegation of the Petition not expressly admitted herein. Tenant denies that Tenant is "wrongfully occupying" the Premises within the meaning of W. Va. Code § 55-3A-1 and demands strict proof at the hearing. Tenant expressly preserves and does not waive any defense available under West Virginia statutory law, common law, or federal law, including the implied warranty of habitability under Teller v. McCoy, 162 W. Va. 367 (1978).

3. SPECIFIC RESPONSES TO PETITION ALLEGATIONS

3.1. Paragraph 1.1 (Petitioner's identity). Tenant [admits / denies / lacks sufficient knowledge to admit or deny] the allegations of paragraph 1.1.

3.2. Paragraph 1.2 (Tenant's identity). Admitted that Tenant resides at the Premises. All other allegations are [admitted / denied].

3.3. Paragraph 1.3 (Other occupants). [Admit / Deny / State as appropriate].

3.4. Paragraph 1.4 (Jurisdiction). Subject-matter jurisdiction is [admitted / disputed because: __________].

3.5. Paragraph 1.5 (Venue). [Admitted / denied].

3.6. Paragraphs 2.1-2.2 (Description of Premises). [Admitted / denied].

3.7. Paragraphs 3.1-3.5 (Tenancy / Lease). [Admit existence of Lease; deny that Lease attached as Exhibit A is the operative agreement / admit; etc.]

3.8. Paragraphs 4.1-4.4 (Pre-Suit Notice). Tenant denies that the Pre-Suit Notice was properly served and/or properly stated the alleged ground. Specifically:

• ☐ The Notice did not specify a definite cure period, in violation of WV common-law forfeiture-strict-construction principles;
• ☐ The Notice was not served by an authorized method;
• ☐ The Notice misstated the rent amount due;
• ☐ The Notice was not signed by the landlord or an authorized agent;
• ☐ Other: [___________________].

3.9. Paragraphs 5.1-5.2 (Grounds for wrongful occupation). DENIED. Tenant specifically denies:

• ☐ That Tenant is in arrears in rent (see ¶ 4.1 below);
• ☐ That Tenant breached any covenant of the Lease;
• ☐ That Tenant deliberately or negligently damaged the Premises;
• ☐ That Tenant has held over after lawful termination.

3.10. Paragraphs 6.1-6.2 (Damages). DENIED. The amounts and categories pleaded are inflated and/or unsupported by competent evidence.

3.11. Prayer for Relief. Tenant denies that Petitioner is entitled to any of the relief requested.

4. AFFIRMATIVE DEFENSES

Without admitting any allegation of the Petition, and reserving the right to amend upon further investigation and discovery, Tenant asserts the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE — Breach of Implied Warranty of Habitability (Teller v. McCoy)

4.1. The Premises has been, throughout the relevant period, in a condition that materially violates the implied warranty of habitability recognized by Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978), and the statutory duty under W. Va. Code § 37-6-30, including the following defects:

4.2. Petitioner had actual notice and a reasonable opportunity to repair but failed to do so.

4.3. Under Teller, the tenant's duty to pay rent is "mutually dependent" on the landlord's fulfillment of the warranty. Breach of the warranty is a defense to wrongful occupation premised on nonpayment and entitles Tenant to a rent abatement equal to the difference in value between the Premises as warranted and as delivered, plus damages for annoyance and inconvenience.

4.4. The implied warranty is non-waivable as against public policy.

SECOND AFFIRMATIVE DEFENSE — Retaliatory Eviction (Imperial Colliery v. Fout)

4.5. The Petition is brought in retaliation for Tenant's exercise of rights incidental to the tenancy, specifically:

• ☐ Reporting habitability defects to the landlord on [__/__/____];
• ☐ Contacting [CITY / COUNTY] code enforcement on [__/__/____] (case # [___]);
• ☐ Filing a complaint with the [WV Human Rights Commission / HUD / other agency] on [__/__/____];
• ☐ Joining or organizing a tenant association;
• ☐ Withholding rent in good faith pursuant to Teller;
• ☐ Asserting a security-deposit / consumer-protection claim;
• ☐ Other: [___________________].

4.6. Under Imperial Colliery Co. v. Fout, 179 W. Va. 776, 373 S.E.2d 489 (1988), retaliatory eviction is a valid defense in WV when the tenant's protected activity is "incidental to the tenancy."

THIRD AFFIRMATIVE DEFENSE — Defective Pre-Suit Notice

4.7. The Pre-Suit Notice failed to comply with W. Va. Code § 37-6-5 and/or the Lease's forfeiture / cure provisions because:

• The notice period was insufficient;
• The Notice failed to specify a definite cure period or remedy;
• The Notice was not properly served;
• The Notice was issued by a person without authority;
• The Notice misstated the amount due or the conduct alleged.

A defective demand defeats the petition under the strict-construction rule applied to common-law forfeitures.

FOURTH AFFIRMATIVE DEFENSE — Waiver / Acceptance of Rent

4.8. Petitioner waived the alleged default by accepting rent (or partial rent) on [__/__/____] with knowledge of the alleged breach, thereby reinstating the tenancy or estopping the present action.

FIFTH AFFIRMATIVE DEFENSE — Setoff / Recoupment (Habitability + Security Deposit)

4.9. Any sums Tenant is found to owe must be reduced by:

• Rent abatement under Teller and § 37-6-30;
• Out-of-pocket repair-and-deduct costs (where authorized);
• Security deposit wrongfully withheld by Petitioner under § 37-6A-2.

SIXTH AFFIRMATIVE DEFENSE — Discrimination (FHA / WV Human Rights Act)

4.10. The Petition is filed on the basis of, or with intent to discriminate on the basis of, [race / color / religion / national origin / sex / familial status / disability / blindness / ancestry / age] in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and W. Va. Code § 5-11A-1 et seq.

SEVENTH AFFIRMATIVE DEFENSE — Failure to Accommodate (FHA)

4.11. Petitioner refused to grant a requested reasonable accommodation under 42 U.S.C. § 3604(f) for Tenant's disability, including [describe — e.g., assistance animal, transfer of unit, modification] requested on [__/__/____].

EIGHTH AFFIRMATIVE DEFENSE — Servicemembers Civil Relief Act

4.12. Tenant or a member of Tenant's household is in active military service, and the requirements of 50 U.S.C. § 3951 (stay of eviction proceedings against servicemembers) have not been satisfied.

NINTH AFFIRMATIVE DEFENSE — VAWA Protections

4.13. The eviction is based on incidents of domestic violence, dating violence, sexual assault, or stalking against Tenant, in violation of 34 U.S.C. § 12491.

TENTH AFFIRMATIVE DEFENSE — Self-Help / Unclean Hands

4.14. Petitioner engaged in unlawful self-help (lockout, utility shut-off, removal of property) on [__/__/____], barring equitable relief and giving rise to the counterclaims pleaded below.

ELEVENTH AFFIRMATIVE DEFENSE — HUD / Section 8 Procedural Failure (IF APPLICABLE)

4.15. The Premises is federally subsidized; Petitioner failed to provide the pretermination notice and grievance procedures required under 24 C.F.R. § 247.4 (or other applicable program rules).

TWELFTH AFFIRMATIVE DEFENSE — Statute of Limitations / Laches

4.16. Petitioner's claims are barred in whole or in part by applicable statutes of limitation and the doctrine of laches.

THIRTEENTH AFFIRMATIVE DEFENSE — Reservation

4.17. Tenant reserves the right to assert additional defenses as discovery proceeds.

5. COUNTERCLAIMS

Pursuant to W. Va. Code § 55-3A-2 and the rules governing counterclaims in [Magistrate / Circuit] Court, Tenant asserts the following counterclaims:

COUNTERCLAIM I — Breach of Implied Warranty of Habitability and W. Va. Code § 37-6-30

5.1. Counterclaim Plaintiff (Tenant) realleges paragraphs 4.1-4.4 above.

5.2. Counterclaim Defendant (Landlord) breached the warranty and § 37-6-30 by failing to maintain the Premises in fit and habitable condition despite notice.

5.3. Tenant has suffered damages, including:

• Diminution in value of the leasehold (rent abatement) of $[____];
• Out-of-pocket costs (repairs, hotel, food, medical) of $[____];
• Damaged personal property of $[____];
• Annoyance, inconvenience, and emotional distress.

COUNTERCLAIM II — Wrongful Withholding of Security Deposit (W. Va. Code § 37-6A-2)

5.4. Tenant paid a security deposit of $[____] on [__/__/____].

5.5. The tenancy terminated (or will terminate) on [__/__/____]. Landlord has failed to deliver the security deposit, less only lawful itemized deductions, within the applicable notice period (60 days of termination of tenancy or 45 days of subsequent occupation, whichever is shorter).

5.6. Pursuant to W. Va. Code § 37-6A-2(c), Tenant is entitled to:

• Recovery of the wrongfully withheld deposit;
• Damages of one and one-half (1.5) times the amount wrongfully withheld;
• Court costs;
• Reasonable attorney fees.

COUNTERCLAIM III — Unlawful Self-Help / Trespass / Conversion

5.7. On [__/__/____], Landlord engaged in unlawful self-help by [changing locks / removing tenant property / shutting off utilities / forcibly entering] without a court order.

5.8. Tenant has suffered actual damages (lost / damaged property, alternate housing, emotional distress) and is entitled to compensatory and (where willful and wanton) punitive damages.

COUNTERCLAIM IV — Retaliation (Common-Law per Imperial Colliery v. Fout)

5.9. Realleging paragraphs 4.5-4.6, Tenant is entitled to compensatory damages for the harms caused by the retaliatory eviction proceeding, including legal fees and emotional distress.

COUNTERCLAIM V — Fair Housing / Discrimination

5.10. Realleging paragraphs 4.10-4.11, Tenant is entitled to actual and statutory damages under 42 U.S.C. § 3613 and W. Va. Code § 5-11A-1 et seq.

COUNTERCLAIM VI — Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.) — IF APPLICABLE

5.11. Landlord's collection practices and notices constitute violations of the WV Consumer Credit and Protection Act, entitling Tenant to actual damages, civil penalties, and attorney fees.

6. DEMAND FOR JURY TRIAL

Pursuant to W. Va. Code § 55-3A-2 and Article III, Section 13 of the West Virginia Constitution, Tenant hereby demands a TRIAL BY JURY on all issues so triable, both as to the Petition and Tenant's Counterclaims.

7. REQUEST FOR DISCOVERY / REMOVAL

7.1. Discovery. Tenant requests leave to conduct limited discovery, including production of:

• The complete rent ledger;
• Maintenance records and work orders for the Premises for the prior 24 months;
• All communications between Petitioner and Tenant;
• Inspection reports and photographs;
• Code-enforcement correspondence; and
• Insurance claim files relating to alleged damage.

7.2. Removal to Circuit Court (IF APPLICABLE). Pursuant to W. Va. Code § 50-4-8, Tenant moves (or will move by separate motion) to remove this action to the Circuit Court of [COUNTY] County because Tenant's counterclaims exceed the magistrate jurisdictional limit of $10,000 and/or involve issues of equitable / constitutional dimension beyond the magistrate's authority.

8. PRAYER FOR RELIEF

WHEREFORE, Tenant respectfully prays that the Court:

• A. Deny the Petition in its entirety and dismiss with prejudice;
• B. Enter judgment for Tenant on each counterclaim, awarding compensatory, statutory, and (where appropriate) punitive damages;
• C. Award the security deposit plus 1.5x penalty, costs, and attorney fees under W. Va. Code § 37-6A-2;
• D. Award attorney fees and costs under the Fair Housing Act, the WV Human Rights Act, the WV Consumer Credit and Protection Act, and any other applicable fee-shifting authority;
• E. Grant a trial by jury on all issues so triable;
• F. Stay execution of any order of possession pending appeal;
• G. Grant such other and further relief as the Court deems just and equitable.

9. VERIFICATION

STATE OF WEST VIRGINIA

COUNTY OF [_______________]

I, [TENANT NAME], being first duly sworn, depose and say that I am the Respondent / Counterclaim Plaintiff in the foregoing action; that I have read the foregoing Verified Answer, Affirmative Defenses, Counterclaims, and Demand for Jury Trial; and that the matters and facts stated therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[TENANT NAME]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — State of West Virginia

(My Commission Expires: [_______________])

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME] (or "Pro Se")

By: [________________________________]

[ATTORNEY NAME], W. Va. State Bar No. [####]

Counsel for Respondent / Tenant

[STREET ADDRESS]

[CITY, WV ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [_______________], 20[____], I served a true and correct copy of the foregoing VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL upon the Petitioner / Petitioner's counsel by:

• ☐ Hand delivery
• ☐ U.S. First-Class Mail, postage prepaid
• ☐ U.S. Certified Mail, Return Receipt Requested
• ☐ Electronic mail (with consent / pursuant to court rule)
• ☐ E-filing through the West Virginia Unified Court System portal

addressed to:

[PETITIONER / COUNSEL NAME AND ADDRESS]

[________________________________]

[ATTORNEY / TENANT NAME]

12. WEST VIRGINIA PRACTICE NOTES

• Written Answer not strictly required. Magistrate Court permits oral defense at the hearing. However, a written verified Answer:
• preserves affirmative defenses for appeal;
• documents the jury demand;
• frames counterclaims (including security-deposit penalties); and
• signals seriousness for settlement.
• Hearing in 5-10 judicial days. § 55-3A-2 requires fast scheduling. Prepare evidence (photos, dated communications, code reports) immediately upon receipt of the petition.
• Habitability defense (Teller v. McCoy). Plead specific defects, dates of notice to landlord, and the demand for rent abatement. Witness testimony from neighbors, code officers, and contractors is highly persuasive.
• Retaliation defense (Imperial Colliery v. Fout). Connect the protected activity to the eviction with TIMING (e.g., notice issued 14 days after code complaint). The activity must be "incidental to the tenancy."
• Security deposit counterclaim. § 37-6A-2 is one of the most powerful tenant remedies in WV — 1.5x penalty + attorney fees on willful withholding. File the counterclaim even if the deposit hasn't been due 60 days yet — it can be amended as the deadline passes during litigation.
• Removal to Circuit Court. Where counterclaims exceed $10,000, removal is appropriate under W. Va. Code § 50-4-8. Circuit Court provides full discovery (interrogatories, depositions) and reduces the "rocket-docket" pressure.
• Jury trial right. Preserved by § 55-3A-2 and Article III § 13 of the WV Constitution. File the demand in writing before the hearing.
• Appeal. Tenant has 20 days from a magistrate judgment to file a Notice of Appeal to Circuit Court (W. Va. Code § 50-5-12 and Magistrate Court Rules). Filing generally stays the order if rent is paid into the court registry. Indigent tenants may obtain fee waivers.
• Pay-and-stay (nonpayment cases). If the only ground is nonpayment, paying all back rent + late fees + court costs before the hearing typically defeats possession.
• Self-help countersuit. Lockouts and utility shut-offs by a WV landlord without a court order are tortious. Conversion, trespass, and (in egregious cases) IIED claims are viable.
• Subsidized housing. Federal regulations (24 C.F.R. § 247 et seq.) impose pretermination procedures whose breach is itself a defense.
• Federal Servicemembers protection. A 90-day stay is mandatory for active-duty servicemembers under 50 U.S.C. § 3951; the court may require a guardian ad litem.
• VAWA. Covered tenants cannot be evicted solely because they were victims of domestic violence, dating violence, sexual assault, or stalking.
• Charleston / Morgantown. Some local ordinances provide additional protections (e.g., source-of-income, sealing of eviction records). Verify local rules.

13. SOURCES AND REFERENCES

• W. Va. Code § 55-3A-1 — https://code.wvlegislature.gov/55-3A-1/
• W. Va. Code § 55-3A-2 — https://code.wvlegislature.gov/55-3A-2/
• W. Va. Code § 55-3A-3 — https://code.wvlegislature.gov/55-3A-3/
• W. Va. Code § 37-6-5 — https://code.wvlegislature.gov/37-6-5/
• W. Va. Code § 37-6-30 — https://code.wvlegislature.gov/37-6-30/
• W. Va. Code § 37-6A-1 et seq. — https://code.wvlegislature.gov/37-6A/
• W. Va. Code § 37-6A-2 (Security Deposits — 1.5x penalty) — https://code.wvlegislature.gov/37-6A-2/
• W. Va. Code § 5-11A-1 et seq. (Human Rights Act / Fair Housing)
• W. Va. Code § 50-4-8 (Removal)
• W. Va. Code § 50-5-12 (Magistrate appeals)
• W. Va. Code § 46A-1-101 et seq. (Consumer Credit and Protection Act)
• W. Va. Const. art. III, § 13 (Jury trial)
• Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978)
• Imperial Colliery Co. v. Fout, 179 W. Va. 776, 373 S.E.2d 489 (1988)
• Fair Housing Act, 42 U.S.C. § 3601 et seq.
• Servicemembers Civil Relief Act, 50 U.S.C. § 3901 et seq.
• Violence Against Women Act, 34 U.S.C. § 12491
• 24 C.F.R. Part 247 (HUD subsidized-housing termination)
• Legal Aid of West Virginia — Court Eviction Process: https://legalaidwv.org/legal-information/court-eviction-process/
• Legal Aid of West Virginia — Appealing an Eviction: https://legalaidwv.org/legal-information/appealing-an-eviction-case-to-circuit-court/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before filing. The 5-10 judicial-day hearing window in § 55-3A-2 makes prompt legal review especially urgent for tenants.