Learn to plead your affirmative defenses.

You’ve been sued. First, you panic. Then, you think about how to
defend yourself. One of the best ways to fight back when you are
being sued is through affirmative defenses.

What is an affirmative defense? An affirmative defense is a reason

why a defendant should not have to pay damages even when the
facts in the complaint are true. You can assert affirmative defenses
while still denying the allegations in a complaint.

It’s not recommended that affirmative defenses be the first thing you
file upon getting served with a complaint. A motion for extension of
time and a motion to dismiss are more appropriate first filings.
However, your affirmative defenses should be uppermost in your mind
early on. They are an essential part of your case strategy.

Affirmative defenses give you something to focus on in discovery. They keep

you in the case long after most pro se litigants would have been defeated. If
they’re well written, they may even give you leverage in settlement
negotiations or a final win. So what do you need to know about affirmative
defenses?

Important Things to Know About Affirmative Defenses

 It’s often best to file your affirmative defenses with your answer as a
single document with two main sections.
 A person asserting an affirmative defense is required to meet all the
elements (requirements) of that defense. If any element is missing, the
affirmative defense can be easily defeated.
 Each defense must be expressed as a set of facts.
 In order to defeat you, the plaintiff has to strike all of your affirmative
defenses.
 Listing all viable affirmative defenses makes your case stronger.
  Elements of an affirmative defense may vary across jurisdictions, so
check to be sure you have the right ones for your jurisdiction.

Asserting an Affirmative Defense: An Example

First, find the elements of the defense you want to assert. Statutes and

appellate cases are good resources for this. Then, state any facts in your own
case that make up the elements of that defense.

Here’s an example. In your jurisdiction, the affirmative defense of fraud has

five elements, (1) a false representation; (2) about a material fact; (3) made
with knowledge of its untruth; (4) with intent to deceive; and (5) defendant
relied on the representation.

If you want fraud as an affirmative defense in a breach of contract case, how

might you assert it?

Sample 1. Affirmative Defense–Fraud

ASSERTION: The plaintiff made a false statement when I signed the

contract.

NOT GOOD: This is missing some elements of fraud. It can be easily struck.

Sample 2. Affirmative Defense–Fraud

ASSERTION: The plaintiff committed fraud.

NOT GOOD: This is simply stating a legal conclusion. It can be easily

struck.

Sample 3. Affirmative Defense–Fraud

The plaintiff said he owned the property in dispute but knew all along he
didn’t. He wanted me to believe his statement so I could enter into a rental
contract with him. I thought he owned the land, so I signed the contract.

GOOD: This defense alleges facts that support each and every element of
fraud. It includes (1) a false representation; (2) about a material fact; (3)
made with knowledge of its untruth; (4) a statement about intent to deceive;
and (5) the defendant’s reliance on the representation.

Learn to plead your affirmative defenses.

List of 31 Affirmative Defenses

Below is a list of sample affirmative defenses and their elements or

requirements. To repeat, the elements and requirements vary by jurisdiction.

1.
Abandonment. In a case of copyright infringement, a defendant can argue
that the owner of a trademark cannot exclude others from using that
trademark if it has been abandoned.

Sample Elements

 the owner, assignor, or licensor of a trademark discontinued its good

faith and exclusive use of the trademark in the ordinary course of trade;
 the owner, assignor, or licensor intended not to resume using the
trademark;
  the owner, assignor, or licensor acts, or fails to act, so that the
trademark’s primary significance to prospective consumers has become
the product or service itself and not the producer of the product or
provider of the service; and
 the owner, assignor, or licensor fails to exercise adequate quality
control over the goods or services sold under the trademark by a
licensee.

Source: Manual of Model Civil Jury Instructions for the District Courts of the
Ninth Circuit (2017), Section 15.22, pg. 343.

2.

Accord and Satisfaction—an agreement between two parties to accept terms

that differ from the original amount of a contract or claim.

Sample Elements

 Consideration to support an accord and satisfaction

 an offer of partial payment in full satisfaction of a disputed claim
 acceptance of the partial payment by the creditor with the knowledge
that the debtor offered it only upon the condition that the creditor
accepts the payment in full satisfaction of the disputed claim or not at all

Source: Charleston Urban Renewal Authority v. Stanley, 176 W.Va. 591, 346

S.E.2d 740 (1985)

3.

Assumption of Risk—a defendant must prove that the plaintiff knew of a

dangerous condition and voluntarily exposed himself to it

Sample Elements
  knowledge on the part of the injured party of a condition inconsistent
with his safety
 appreciation by the injured party of the danger of the condition
 a deliberate and voluntary choice on the part of the injured party to
expose his person to that danger in such a manner as to register assent
on the continuance of the dangerous condition

Sources: Alley v. Praschak Machine Co., 366 So.2d 661 (Miss.1979),

citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

4.

Breach of Contract—the act of breaking the terms of a contract without a

legal excuse

Sample Elements

 a legally enforceable obligation of a plaintiff to a defendant

 the plaintiff’s violation or breach of that obligation
 injury or damage to the defendant caused by the breach of obligation

Sources: Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004).

5.

Collateral Estoppel (Issue Preclusion)—a doctrine that bars a party from re-
litigating issues

Sample Elements

 the issue previously decided is identical with the one presented in the
action in question
 the prior action has been finally adjudicated on the merits
  the party against whom the doctrine is invoked was a party or in privity
with a party to the prior adjudication
 the party against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action

Source: Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del.2000).

6.

Duress—the act of applying force to illegally compel someone to perform an

act

Sample Elements

 one side involuntarily accepted the terms of another

 circumstances permitted no other alternative
 said circumstances were the result of coercive acts of the opposite party

Sources: Urban Plumbing & Heating Co. v. United States (U.S. Ct. of

Claims 1969), 408 F. 2d 382, 389-390; Blodgett v. Blodgett, 49 Ohio St.3d
243, 245 (1990)

7.

Equitable estoppel—where a court bars legal relief to a party who has acted
unfairly

Sample Elements

 a representation by conduct or word

 justifiable reliance [on the representation]
 a change in position to one’s detriment because of the reliance
Sources: American Bank and Trust Co. v. Trinity Universal Insurance
Co., 194 So.2d 164 (La.App. 1st Cir. 1966); Babin v. Montegut Insurance
Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972).

8.

Failure of Condition(s) Precedent—an action or actions required to take

place (usually by the plaintiff) before the defendant should perform on a
contract.

Sample Elements

 an act or event occurring subsequent to the making of a contract

 that must occur before there is a right to immediate performance and
 before there is a breach of the contractual duty

Sources: Hohenberg Bros. Co. v. George E. Gibbons & Co. 537 S.W.2d 1, 3

(Tex.1976).

9.

Failure to Join Necessary or Indispensable Party—a case can be dismissed

where a plaintiff has not included (or “joined”) a party whose participation is
required.

Sample Elements – A person must be joined in an action if:

 in that person’s absence, complete relief could not be accorded among

the existing parties; and
 the person claims an interest in the subject of the action and is so
situated that a disposition of the action in the person’s absence would
impede the person’s ability to protect that interest or leave a current
party subject to a substantial risk of incurring multiple or inconsistent
obligations by reason of the person’s claimed interest.
Source: Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 716 N.W.2d 366, 377
(Minn.App.2006).

10.

Failure to Mitigate Damages—an affirmative defense whereby an award of

damages is reduced when the plaintiff took no action to avoid
or reduce damages.

Sample Elements

 the defendant’s breach caused the plaintiff’s harm;

 damages could have been avoided with reasonable efforts or
expenditures; and
 plaintiff did not take reasonable steps to avoid harm.

Source: Judicial Council of California, Civil Jury Instructions 358. Mitigation

of Damages, pg. 176.

11.

Force Majeure (Act of God)—A party is not deemed to have failed to meet
an obligation under a contract if their performance or failure to perform was
caused by events that could not be anticipated and were beyond their control.
Note: parties to a contract may write in a force Majeure clause. Then, the
clause will typically rule.

Sample Elements

 the event was caused by an Act of God, war, strike, riot, electrical
outage, fire, explosion, flood, blockade, governmental action, or other
catastrophe;
 the consequences were unforeseen and unavoidable; and
  the defendant acted with due diligence, to prevent damage, harm or
injury or further damage, harm or injury.

Sources: Skandia Ins. Co., v. Star Shipping, 173 F. Supp. 2d 1228, 1239 (S.D.
Ala. 2001); Kleberg County v. URI, Inc., Tex: Court of Appeals, 13th Dist.
2016.

12.

Fraud—a wrongful act of deception that causes a person to give up property

or a right

Sample Elements

 a false representation
 in reference to a material fact
 made with knowledge of its falsity
 with the intent to deceive
 action is taken in reliance upon the representation

Sources: United States v. Kiefer, 97 U.S.App.D.C. 101, 228 F.2d 448

(1955); Bennett v. Kiggins, 377 A.2d 57, 59 (D.C.1977)

13.

Frustration of Purpose—a situation whereby unexpected circumstances

undermine the purpose of a contract

Sample Elements

 frustration of the principal purpose of the contract

 that the frustration is substantial
 that the non-occurrence of the frustrating event or occurrence was a
basic assumption on which the contract was made
  Source: Sabine Corp. v. ONG Western, Inc., 725 F.Supp. 1157, 1178
(W.D.Okla. 1989).

14.

Judicial Estoppel—a doctrine that bars a party from taking positions in a case
that is inconsistent with their positions in a prior judicial proceeding

Sample Elements

 sworn, prior inconsistent statement made in a judicial proceeding

 the party now sought to be estopped successfully maintained the prior
position
 the prior inconsistent statement was not made inadvertently or because
of mistake fraud, or duress
 the statement was deliberate, clear, and unequivocal

Sources: Vinson & Elkins v. Moran, 946 S.W.2d 381, (1997)

15.

Impossibility of Performance—A defendant can allege as an affirmative

defense that it was impossible to perform the contract.

Sample Elements

 the defendant’ performance of the contract was made impossible;

 through no fault of the defendant(s); and
 the impossibility was due to unforeseeable events.

Source: Civil Jury Instructions Hawaii, Instruction No. 15.20: Contract –

Impossibility of Performance.

16.
Justification (Necessity/Self-defense)—a defense whereby it must be proven
that the defendant’s actions were necessary to protect himself or others from
harm.

Sample Elements

 that defendant was under an unlawful and present, imminent, and

impending threat of such a nature as to induce a well-grounded
apprehension of death or serious bodily injury;
 that defendant had not recklessly or negligently placed himself in a
situation in which it was probable that he would be forced to choose the
criminal conduct;
 that defendant had no reasonable, legal alternative to violating the law,
a chance both to refuse to do the criminal act and also to avoid the
threatened harm; and
 that a direct causal relationship may be reasonably anticipated between
the criminal action taken and the avoidance of the threatened harm.

Source: US v. Andrade-Rodriguez, 531 F. 3d 721 – Court of Appeals, 8th

Circuit 2008.

17.

Laches—an unreasonable delay in asserting a claim

Sample Elements

 unreasonable delay or lapse of time in asserting a right

 absence of an excuse for the delay
 knowledge, actual or constructive, of the injury or wrong
 prejudice to the other party

Source: State ex rel. Meyers v. Columbus 71 Ohio St.3d 603, 605, 646

N.E.2d 173 (1995)
 18.

No Adequate Assurances/Anticipatory Breach —A defendant can allege that

any failure to keep her promise is excused because, before the defendant was
to perform, circumstances indicated that the plaintiff’s promise would not be
kept and the plaintiff failed to give adequate assurances.

Sample Elements

 the defendant had reasonable grounds to believe that the plaintiff would
not or could not keep his promise;
 the defendant made a reasonable effort to get assurances from the
plaintiff that the plaintiff would keep his promise; and
 under the circumstances, the plaintiff did not give adequate assurances
within a reasonable time.

Source: Alaska Civil Pattern Jury Instructions, 24.04D: Plaintiff’s

Anticipatory Breach By Repudiation — No Adequate Assurances
(Affirmative Defense).

19.

Unclean Hands—a doctrine whereby a defendant argues that the plaintiff is

not entitled to obtain an equitable remedy (a remedy forcing the defendant to
honor a contract) because the plaintiff acted unethically or in bad faith with
respect to the subject of the complaint

Sample Elements

 the plaintiff is guilty of immoral, unconscionable conduct;

 the conduct was relied upon by the defendant; and
 the defendant was injured thereby.
Sources: Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324 – Dist.
Court, SD New York 2010, quoting Nat’l Distillers & Chem. Corp. v. Seyopp
Corp. [17 N.Y.2d 12, 267 N.Y.S.2d 193], 214 N.E.2d 361, 362 (1966)

20.

Novation—the substitution of an old contract with a new one

Sample Elements

 the existence of a previously valid contract

 the agreement of all the parties to a new contract
 the extinguishment of the original contractual obligation
 the validity of the new contract

Source: Sans Souci v. Division of Fla. Land Sales & Condominiums, Dept. of

Business Regulation, 421 So.2d 623, 630 (Fla. 1st DCA 1982).

21.

Promissory Estoppel—a doctrine by which a defendant can claim that he

acted in response to the plaintiff’s promise

Sample Elements

 a promise
 foreseeability of reliance thereon by the promissor
 substantial reliance by the promisee to his detriment

Sources: Aubrey v. Workman, 384 S.W.2d 389, 393 (Tex.Civ. App.—Fort

Worth 1964).

22.
Ratification—the act of giving consent to or sanctioning the prior acts of a
defendant such that a plaintiff can’t complain about the act later

Sample Elements

 approval by act, word, or conduct

 with full knowledge of the facts of the earlier act
 with the intention of giving validity to the earlier act

Source: Motel Enterprises, Inc. v. Nobani, 784 SW 2d 545 – Tex: Court of

Appeals (1990)

23.

Res judicata—a doctrine that prevents a plaintiff from litigating claims that
have been either finally adjudicated or could have been adjudicated in a prior
claim

Sample Elements

 a claim or issue raised in the present action is identical to a claim or

issue litigated in a prior proceeding
 the prior proceeding resulted in a final judgment on the merits
 the party against whom the doctrine is being asserted was a party or in
privity with a party to the prior proceeding

Source: People v. Barragan 32 Cal.4th 236, 252-253 (2004)

24.

Unconscionability—the absence of meaningful choice on the part of a party

to a contract because the terms are overwhelmingly one-sided in favor of the
party with the superior bargaining power
Sample Elements

 circumstances surrounding each of the parties to a contract such that no

voluntary meeting of the minds was possible; and
 unfair and unreasonable contract terms.

Sources: Vistein v. American Registry of Radiologic Techns., Dist. Court,

ND Ohio 2007;  Collins v. Click Camera & Video, Inc. 86 Ohio App.3d 826,
832, 834, 621 N.E.2d 1294 (Ohio Ct.App.1993).

25.

Undue Influence—a doctrine whereby a contract can be rendered void or

voidable if a person is reasonably considered to be in a position of trust in
relation to another person and abuses that trust.

Sample Elements

 the existence of a confidential or fiduciary relationship between the

grantor and a fiduciary;
 the fiduciary or an interest which he represents benefits from a
transaction; and
 the fiduciary had an opportunity to influence the grantor’s decision in
that transaction.

Source: Kar v. Hogan, 251 NW 2d 77 – Mich: Supreme Court 1976.

26.

Unilateral Mistake of Fact—A defendant may allege as an affirmative

defense that there was no contract because he was mistaken about a material
fact.

Sample Elements
  the defendant was mistaken;
 the plaintiff knew the defendant was mistaken and used that to take
advantage of him;
 the defendant’s mistake was not caused by the defendant’s excessive
carelessness; and
 defendant would not have agreed to enter into the contract if he’d
known about the mistake.

 Source: Judicial Council of California, Civil Jury Instructions (2018),

330: Affirmative Defense—Unilateral Mistake of Fact, pg. 138.

27.

Unjust Enrichment—a benefit for which the one enriched has not paid or
worked and morally and ethically should not keep

Sample Elements

 plaintiff has conferred a benefit on the defendant, who has knowledge

thereof
 defendant voluntarily accepts and retains the benefit conferred
 the circumstances are such that it would be inequitable for the
defendant to retain the benefit without paying the value thereof to the
plaintiff

Source: Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla.
2d DCA 1988)

28.

Usury—the illegal act of lending money at unreasonably high rates of

interest. Sample Elements

 the transaction must be a loan or forbearance;

  the interest to be paid must exceed the statutory maximum the loan and
interest must be absolutely repayable by the borrower; and
 the lender must have a willful intent to enter into a usurious transaction.

Sources: Ghirardo v. Antonioli, 883 P. 2d 960 – Cal: Supreme Court 1994.

29.

Violation of the Real Estate Settlement Procedure Act (RESPA)—In many

cases, a defendant can allege as an affirmative defense that the plaintiff
violated provisions of a statute. The defendant would review the facts of his
case alongside the statute and allege anything that’s missing. A RESPA
violation might also be used to allege the failure of conditions precedent.

Sample Allegations

 failure to provide the Housing and Urban Development (HUD) special

information booklet;
 failure to provide a Mortgage Servicing Disclosure Statement and good
faith estimate of settlement/closing costs to the defendant at the time of
the loan application or within three (3) days thereafter;
 failure to provide defendants with an Annual Escrow Disclosure
Statement for each year of the mortgage since its inception;
 giving or accepting fees, kickbacks and/or other things of value in
exchange for referrals of settlement service business, and splitting fees
and receiving unearned fees for services not actually performed; or
 charging a fee at the time of the loan closing for the preparation of
truth-in-lending, uniform settlement and escrow account statements.

Sources: LaSalle Bank, NA v. Shearon, 19 Misc. 3d 433 (2008); Real Estate

Settlement Procedure Act (“RESPA”) – 12 U.S.C. section 2601.

30.
Violation of the Truth in Lending Act (TILA)—A foreclosure defendant can
allege that the plaintiff violated provisions of TILA. The defendant would
review the facts of his case alongside the statute and allege anything that’s
missing. A TILA violation might also be used to allege failure of conditions
precedent.

Sample Allegations

 failure to properly and accurately disclose the amount financed;

 failure to clearly and accurately disclose the finance charge;
 failure to clearly and accurately disclose the annual percentage rate;
 failure to clearly and accurately disclose the number, amounts and
timing of payments scheduled to repay the obligation; or
 failure to clearly and accurately itemize the amount financed.

 Sources: Truth in Lending Act (TILA) – 15 U.S.C. Section 1601; Inge

v. Rock Financial Corp., 281 F. 3d 613 (2002).

31.

Waiver—the relinquishment or surrender of a right or privilege

Sample Elements

 the existence, at the time of the alleged waiver, of a right, advantage or

benefit
 the knowledge, actual or constructive, of the existence thereof
 an intention to relinquish such right, advantage or benefit

Source: Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 302,
111 S.E.2d 324, 328 (1959).

Knowing the elements of an affirmative defense and having the ability to

properly assert that defense takes you a long way to managing your case
strategically. As a pro se litigant, it also helps you gain much respect (but not
much love) from your opponent.

Learn to plead your affirmative defenses.