What is the difference between an "affirmative defense" and a "counterclaim" and how they relate to what we might call "normal" defense in cases of debt?
The burden of proof
The main key to understanding the differences in the defenses is to remember what lawyers call the "burden of proof." The burden of proof applies to those who have something to prove, given that there are things you can never prove beyond doubt the firmness of the jury or judge must beconvinced. In a civil trial (which are cases of debt), the burden of proof (trial) is replaced by "a preponderance." Consider a set of stairs with your evidence and proof to the other side of the balance between them. The "preponderance" is just enough to tip the balance one way or another. It is a difficult burden, but the jury believes that, instead of the other side. And the links go to the person who has the burden of proof.
"Simple"Fenders
Let's start with "simple" argument. Remember that the plaintiff has the burden of proving its case against him. It must demonstrate that (1) owe money (2) we owe to the right person, (3) who have never, and (4) how much I owe. Simply put, if you are sued by a credit card debt age of $ 500, must prove that: (1) is used for loans or credit card to buy things, (2)purchased or otherwise acquired the right to go after money, (3) never paid the money to the original creditor or other debts, and (4) the total amount due is $ 500. If you can not submit sufficient evidence in one or more of these problems, we must win. A defense of the "flat" is only in your response to the claim denying any or all of these elements in the case of the applicant. Once you dispute the debt collector chargesagainst you, to bear the burden of proof on all charges in dispute.
Affirmative Defenses
Suppose you want to argue that even if it was the credit card, another person fraudulently to support the debt. This could be a defense "yes." An affirmative defense is something that, if true, would have prevented the debt claim against you, even if all allegations of a petition by the applicant are true. The party claimingaffirmative defense the burden of proof on it.
Counterclaims
A "counterclaim" is a completely different animal. The counterclaim asserts a claim against the party denounced him. For its counterclaim, which are basically treated as an actor, and if you win, you should get the money. Defenses simply because the money you save on the other side. It will support the burden of proof for the counterclaim, and on the other side can present defenses and affirmative defenses. Acounterclaim does not defeat his claim, although in some cases, such as consumer fraud, counterclaims can double your defenses. In the context of debt collection, this is not usually the case. Counterclaim to the debt collector will not be harassed a defense against your claim that you owe them money. It could, however, be a most precious right, however, and could easily be worth more than the money demand against him.
A possible exceptioncould be the rule for "verification." The Fair Debt Collection Practices Act (FDCPA) requires that if the debt collector is required to validate a debt, you must do so within 30 days and should have no collection activity until they have done. In some cases, defendants have used the fact that the collector for validation (after only one request) as a defense to the case. Obviously it would be very temporary andcould be resolved easily.
Similarly, claiming that the applicant had not submitted a previous request for the money (but only demanded from nothing) is just a technical defense of a credit agreement, as the courts usually sufficient to treat the request as demand. Moreover, in the field of debt litigation, if the request is the first time I've heard that the collector would still have the right to request verification. Exactly how that works as an affirmative defenseand affects the time the case was highly controversial and remains unclear. Again, defense would probably be a very temporary, although no written notice of your right of inspection may be a violation of the FDCPA.
Conclusion
If you are responding to a lawsuit filed by a debt collector, you will need to consider the audience of the plain, all possible affirmative defenses, counterclaims and questions. All of them are independent and mustbe invoked (suspects) and has been shown separately.
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