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What is an Affirmative Defense?

Sarah Edwards | April 11, 2024

Sarah Edwards
Legal Expert
Sarah Edwards, BS

Sarah Edwards is a professional researcher and writer specializing in legal content. An Emerson College alumna, she holds a Bachelor of Science in Communication from the prestigious Boston institution.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Fact-checked by George Simons, JD/MBA

George Simons
Co-Founder of SoloSuit
George Simons, JD/MBA

George Simons is the co-founder and CEO of SoloSuit. He has helped Americans protect over $1 billion from predatory debt lawsuits. George graduated from BYU Law school in 2020 with a JD/MBA. In his spare time, George likes to cook, because he likes to eat.

Summary: An affirmative defense is a legal defense that a defendant uses to prove they are not liable. In a debt collection lawsuit, an affirmative defense is any legal reason that the defendant should not be held responsible for the debt. You must list your affirmative defenses when you respond to a debt lawsuit. SoloSuit can help you use the right defense the right way.

You're likely wondering what to do if you receive notice of a lawsuit for an old debt. Receiving a warning of a pending case against you is scary. After all, no one wants to be on the wrong side of the law.

Once you’ve had time to read through the details of the lawsuit and identify who the plaintiff (the person or company suing you) is, it’s time to figure out how to defend yourself. You can pay off or negotiate the debt before the court date, ignore the lawsuit, or defend yourself.

Assert your affirmative defenses.

Make the right defense the right way in a debt collection lawsuit. SoloSuit can help you list applicable affirmative defenses in your case.

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Deciding to pay off or negotiate your debt before the court date has advantages. You’ll be able to rid yourself of the liability and move on with your life, free of any potential judgment. On the other hand, if you decide to ignore the lawsuit, you’ll likely receive a default judgment. The judgment will force you to pay the debt, and the plaintiff can take legal action to collect the money from you via your paycheck or bank account.

Defending yourself is another option. However, few people know how to protect themselves in a debt collection lawsuit. Most individuals assume they have no defense since they technically owe the money.

This isn’t true. You likely have several defenses you can use in court, known as affirmative defenses. In this article, we’ll discuss what an affirmative defense is and which ones may apply to a debt collection lawsuit.

Make the right defense the right way.

What is an affirmative defense in a civil case?

An affirmative defense is when the defendant (the person or company being sued) makes a case or shows evidence to prove they are not responsible or at fault in a lawsuit. In other words, an affirmative defense is any legal reason that you shouldn’t be held liable in a civil case.

To help people understand affirmative defenses better, we asked an attorney. Watch the following interview with consumer rights attorney, John Skiba, who explains how affirmative defenses work in a civil case:

Below is a quick recap on affirmative defenses, based on above video where we interviewed a real lawyer.

  • In civil cases like debt collection, an affirmative defense means acknowledging the plaintiff's claim but providing a valid legal defense.
  • The most common example of an affirmative defense in debt lawsuits is the statute of limitations, which varies by state but typically grants creditors a limited time to sue after an account defaults. If they sue after this period, the statute of limitations can be an affirmative defense, essentially arguing that even if the debt is valid, the time to legally pursue it has passed.
  • You should bring up the statute of limitations, even if you aren't sure it will apply to your case.

Private arbitration can also be a defense in a debt lawsuit, even though it is not considered an affirmative defense. This strategy signals the possibility of moving the dispute to private arbitration, removing it from the court system, which can be costly for plaintiffs. In our experience, requesting private arbitration can result in a case dismissal, or at least move the case out of court.

In conclusion, be prudent in responding to complaints: address the claims directly, provide minimal but accurate information, and assert any relevant affirmative defenses like the statute of limitations, even if their applicability is uncertain. This approach helps in safeguarding rights and might influence the outcome of the case.

Assert your affirmative defenses.

How can an affirmative defense help me?

Affirmative defenses are helpful even when the defendant is technically guilty. If the defendant can prove an affirmative defense, the judge will dismiss the lawsuit against them.

Deciding to use an affirmative defense is a bit risky in some cases. Remember that the plaintiff has the burden of proving the validity of their lawsuit against you. If you decide to use an affirmative defense in your case, the burden of proof shifts to you.

You must fully demonstrate how the affirmative defense applies and answer questions from the plaintiff, judge, or others to substantiate your claim.

Affirmative defenses can be helpful if you know what they are and how to use them. Most creditors and debt collectors file lawsuits to collect old debts because they assume the debtor will either pay off the claim or let the judgment to proceed. They don’t anticipate that the borrower will stand up for themselves in court.

If you effectively use an affirmative defense in a debt lawsuit against you, you may achieve one of the best outcomes: a complete dismissal of your case. Read on to learn more about affirmative defenses that can help you win your debt collection case.

What affirmative defenses can be helpful in a debt collection case?

Attorneys commonly use more than 200 affirmative defenses in civil and criminal cases. However, not all of these defenses will apply to a debt collection case. We’ve identified 8 of the most common affirmative defenses that may apply when you get sued for debt:

  1. The statute of limitations has expired.
  2. Someone stole your identity.
  3. You already paid off your debt.
  4. No business relationship exists with the debt collector.
  5. You have filed for bankruptcy.
  6. Court officers did not serve you properly.
  7. You do not owe the money as an authorized user.
  8. The debt collector changed the balance.

Now, let’s break down each of these affirmative defenses in detail. You can also watch this video to learn more about how to use affirmative defenses to win your lawsuit:

1. The statute of limitations has expired

One of the first defenses you should consider is the statute of limitations. Each state has a statute of limitations outlining how long a creditor or collector can pursue legal action on an old debt. In other words, the statute of limitations set a deadline for someone to be able to sue you for a debt you owe.

Frequently, the statute of limitations varies depending on the debt owed. For instance, the times creditors have to collect on debts involving promissory notes (such as automobile loans) and revolving accounts (such as credit cards) may differ.

Most statutes of limitations on debt vary from three to ten years. Kentucky has one of the longest limitations on debt—creditors can file a lawsuit up to fifteen years from the date of a promissory note involving a student loan, automobile, or real estate purchase.

Individuals facing debt collection deal with creditors and debt collectors. Debt collectors work for companies that purchase old debts at a bargain price and attempt to collect them from the original borrowers. Several years may have come and gone by the time a debt collector purchases your debt. In some cases, the statute of limitations may expire.

While the statute of limitations can’t stop debt collectors from sending letters or calling you in pursuit of debt, it can prevent them from winning a lawsuit against you.

Let’s take a look at an example.

Example: Franklin is being sued by a debt collector in California for an old credit card debt of $800. When Franklin hears about the case, he doesn’t even remember the debt. After some investigating, he finds out that the debt account has been inactive for more than six years. Since the statute of limitations on credit card debt is four years in California, the debt collector does not have the legal right to sue for it. Franklin uses SoloSuit to draft and file his Answer to the lawsuit, where he uses the expired statute of limitations as one of his affirmative defenses. The case gets dismissed.


Use the statute of limitations as an affirmative defense to beat debt collectors in court.

2. Someone stole your identity

If you receive notice of an intent to sue for a debt you know nothing about, you may be the victim of identity theft.

Identity theft is, sadly, widespread. Criminals can find your personal details, like your Social Security number, name, and address, and use the information to obtain money from a lending institution.

Consumers are well-advised to keep a close eye on their credit reports and notify creditors if a new balance appears that isn’t theirs. However, not all consumers regularly check their reports, and sometimes the first time they notice something is amiss is when a debt collector attempts to sue them for the stolen money.

Individuals sued for a debt that isn’t theirs must follow the appropriate steps to report the theft and notify the debt collector. The debt collector cannot act against the individual unless the authorities find that identity theft did not occur.

3. You already paid off your debt

It’s rare for a debt collector to sue for a paid debt, but it does happen. Occasionally lines get crossed, and the creditor doesn’t update their files appropriately, resulting in a lawsuit for a debt you no longer owe.

In other cases, debtors pay off their liability before the court case date. If a collector receives full payment before the court date, they will need to dismiss their claims.

Sometimes, individuals may negotiate a payment plan or a reduced payoff before the court date. If your creditor agrees to a payment plan or settlement, make sure to obtain the arrangement in writing. You can use a copy of the agreement to have your case dismissed.

4. No business relationship exists with the debt collector

One intriguing affirmative defense is no business relationship between the debt collector and the consumer. This defense may work if the party suing you for a debt is not the original creditor.

To prove that no business relationship exists between you and the creditor, you must show that the original debt was with another lender, like a financial institution or bank. The defense strengthens if you show that the debt collector increased the original owed balance when they purchased the old debt.

5. You have filed for bankruptcy

Sometimes, people become so overwhelmed by debt they simply can’t foresee a way out. In such cases, they may file for bankruptcy to obtain a fresh start.

Filing for bankruptcy prevents most creditors from pursuing legal action against you to collect a debt. Most debts discharge through bankruptcy, except for some tax liens and student loans.

Under a Chapter 7 bankruptcy, the court entirely writes off most debts. Individuals who don’t meet the qualifications for a Chapter 7 bankruptcy may file for Chapter 13.

Under Chapter 13 bankruptcy, the court discharges some debts, and other liabilities are reorganized through a payment plan. Individuals must adhere to a unique payment schedule with a Chapter 13 bankruptcy.

Filing for bankruptcy prevents debt collectors from pursuing legal action against you to collect a debt. Instead, they must comply with the rules of your bankruptcy and accept whatever payments the court orders you to make.

6. Court officers did not serve you properly

Under most state laws, a sheriff or officer of the court must deliver a court summons directly to you. If they fail to do so, you may argue that you never received the summons and were unaware of the lawsuit against you.

However, a defense of improper summons does not mean that the debt collector will not pursue further actions against you. The Affirmative Defense may help delay collection, but the creditor can always refile their lawsuit and ensure you receive the next summons.

7. You do not owe the money as an authorized user

Sometimes, people add authorized users to their credit cards or other financial accounts. Authorized users may pay the bill or review the account information. Usually, people add authorized users when another person handles the household finances or for transparency in their relationship.

Authorized users are not liable for paying off an old credit card debt. As long as they are not jointly responsible for the account, a debt collector cannot sue them to collect old balances.

8. The debt collector changed the balance

If a debt collector files a lawsuit against you to collect more than the original balance that you owed, you may have grounds to dispute the case. A debt collector cannot charge you more than the original balance; if they do, you must agree to the changes.

When you first receive notice from a debt collector that they are attempting to collect an old debt of yours, make sure you require them to validate the amount due. Compare it to your records. If it does not match and they attempt to sue you, you may use the documentation in your defense.

Use the right affirmative defense with SoloSuit

If you’re being sued for a debt, you must list any affirmative defenses in your initial response called the Answer. If you do not, you won’t be able to bring up these defenses later in the case, as outlined in the US Federal Rules of Civil Procedure, Rule 8(c), which states:

“(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata;
  • statute of frauds;
  • statute of limitations; and
  • waiver.”

Now, if you’re like most people, you probably don’t know what most of these words mean in the legal context.

Luckily, SoloSuit helps you figure out which affirmative defenses to use in your Answer document and translates them into legal terms for you. All you have to do is respond to a set of questions about your case, and your affirmative defenses will be automatically generated for you.

Make the right defense the right way with SoloSuit.

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