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What Defenses and Counterclaims could I have?

Defenses

Defenses are the legal reasons why the creditor should not win the case. The fact that you cannot afford to pay your bills is not a defense in a lawsuit for unpaid bills.

Examples of defenses in unpaid bills cases

  • You do not owe the creditor any money on the unpaid bill. If you are the victim of identity theft, read Take Charge: Fighting Back Against Identity Theft
  • You were not 18 years old when you signed the agreement to buy the item.
  • The creditor is suing you after the law allows them to sue you.
  • You have filed for bankruptcy.
  • You paid the bill already.
  • The creditor is trying to collect more than you agreed you owe; the creditor cannot show any proof of the amount of money you owe, or the creditor is trying to collect for attorney's or other fees that your contract  does not allowed.
  • You never agreed to pay the debt; the creditor cannot show any proof of an agreement between you and the creditor. Your signature is not on any of the documents.
  • The Plaintiff does not have the right to collect the debt.  The plaintiff does not have any proof from the original creditor that shows the plaintiff has the right to sue you. The proof the plaintiff is using is not authentic, complete, or original.
  • You were unfairly pressured or tricked into purchasing goods or services that you now owe money for. Entering into an agreement because the other party tricked you means your agreement is based on a “misrepresentation.” Entering into an agreement because the other party pressured you means your agreement is based on “duress.”

Counterclaims

Counterclaims are the claims you have against the creditor. In your counterclaims, you tell the court why the creditor owes you money or why you should get something from the creditor.

In a counterclaim, you are saying, “Even if I do owe the creditor money, the creditor owes me money because the creditor did something wrong.” When you put a counterclaim in your answer, you are asking for money for damages from the creditor. If the creditor owes you for damages, it may mean you should pay the creditor less than the amount you owe. Sometimes the damages equal as much as you owe or more. It is likely that you have counterclaims, even if you do not think you do.

Examples of counterclaims in unpaid bills cases

  • The creditor or collection agency did something illegal in trying to collect the bill.
  • When you made the purchase, the creditor told you something that was untrue about the item.  For example, the item was new when it really was used.
  • The creditor promised to provide a service, like make a repair, and did a poor job.
  • The creditor is charging you fees or interest that is against the law.
Produced by Mariah Jennings-Rampsi, South Coastal Counties Legal Services, with funding from American College of Bankruptcy
Created June 2012

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