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When creating an answer to a civil foreclosure complaint or foreclosure lawsuit, you should address all relevant affirmative defenses. One method to determine affirmative defenses to address is to categorize the available defenses. We have listed nine (9) usual categories below, as well as common affirmative defenses for each category.
You Sued the Wrong Party
Death of real party
Immunity
Lack of capacity (e.g., to contract)
Misjoinder
Privilege
Supervening or intervening cause
You Are the Wrong Party
Lack of privity
Lack of standing
Your Conduct Precludes Recovery
Assumption of risk
Breach of contract by plaintiff
Contributory or comparative negligence
Duress
Estoppel
Failure to give required notice
Fraud
Unclear hands
You Sued in the Wrong Place
Arbitration agreement
Personal jurisdiction
Subject matter jurisdiction
Venue
You Sued Too Early or Too Late
Laches
Lack of exhaustion (e.g., administrative remedies)
Lack of prosecution
Statute of limitations
Waiver
You Used the Wrong Process
No return of service
Service of process
You Get Only One Bite of the Apple
Claim or issue preclusion
Discharge in bankruptcy
Lawsuit is pending elsewhere
Settlement and release
Your Claim Is Meritless
Failure to state cause of action
Failure to satisfy condition precedent
Full performance
Illegality
Lack of consideration
Rescission
Statute of frauds
You Seek the Wrong Remedy
Adequate remedy at law
Failure to mitigate
Statute precludes requested remedy
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