The recent Equifax data hack has brought to light a significant problem in America: identity theft. While the Equifax hack has exposed approximately 140+ million Americans to the risk of having their identities stolen, identity theft is far from a new risk. The White House has recently acknowledged that in the year 2014 nearly 12.7 million consumers were victims of identity theft, resulting in the loss of $16 billion dollars. This article will discuss an example of what identity theft could look like to the average American.
Peter and Pamela are the parents of two children, ages 6 and 8. In an effort to enjoy themselves on a night out, Peter and Pamela hire Denise to babysit their children every Friday evening. Denise, who is 19 years old, goes through Peter and Pamela’s files and eventually obtains enough information to open accounts in their names. A year later, after Denise has moved to another state, she purchases a car under Peter and Pamela’s names, opens a credit card with a $35,000 limit, and purchases a large number of electronics for her apartment under Peter and Pamela’s names.
Eventually, Peter and Pamela caught wind of the identity theft, and attempt to close all the accounts that were fraudulently opened. Peter and Pamela begged and tried to reason with the creditors who were seeking to collect on the debts Denise had incurred while pretending to be Peter and Pamela. The creditors would not budge and continued to demand payment from Peter and Pamela. After years of fruitless attempts to clear their names, Peter and Pamela retained an attorney to assist them. They eventually prevailed, and the accounts were closed. As the Equifax hack and example above point out, anybody can be the victim of identity theft. Therefore, the critical inquiry becomes “what can I do to protect myself if I believe I have been the victim of identity theft?”
Thanks to California’s Identity Theft Act (“CITA”). People that are victims of identity theft can protect their credit effectively once they have learned of the theft. CITA requires debt collectors and creditors to thoroughly investigate claims of fraudulent accounts when those claims are made. If a debt collector or Credit Reporting Agency (“CRA”) fails to investigate claims of identity theft, the individual may bring a claim against them, provided certain pre-conditions are met. First, the victim of identity theft must file a police report regarding the identity theft, and send that police report to the debt collector who is attempting to collect of the fraudulent debt. At that point, the debt-collector has thirty (30) days to cease collection attempts. If the debt collection attempts continue after the thirty (30) day timeframe, the individual then has the right to bring suit against the debt collector. The remainder of this article will discuss various things an individual who is a victim of identity theft can do to assist creditors in verifying that the debts are fraudulent, as well as provide a factual basis for a lawsuit under CITA if they refuse to stop attempting to collect debts created by identity theft.
File a Police Report
As mentioned above, the identity theft victim must file a police report stating they are the victim of identity theft. If you are contemplating filing a lawsuit on the basis of debt collectors’ attempts to collect a fraudulent debt, having a police report should go a long way towards establishing your credibility.
Fill Out an FTC Identity Theft Affidavit
CITA does not require that you fill out an FTC Identity Theft Affidavit, but it is yet another step you can take to inform both your attorney and your creditors that you are sincere in your belief that the account at issue was opened fraudulently. The information in this affidavit will mirror the information in your police report. The affidavit can be found here.
Provide the Creditor/Debt Collector with a Copy of Your Driver’s License and Social Security Card
Keeping in line with the theme of showing the creditor that you are sincere in your statements that you are a victim of identity theft, providing them with copies of your driver’s license and social security card will assist them in verifying that the accounts were opened fraudulently. Your driver’s license has information relating to your appearance (e.g.., a picture, your height, weight, eye color, hair color, etc.). Further, if there is clear photographic or video evidence of who was responsible for opening the account, it may be obvious that you did not open the account.
Providing the creditor with a copy of your social security card will allow them to compare your actual social security number with the number on file. While infrequent, sometimes accounts are opened with social security numbers that aren’t quite a match.
Provide the Creditor / Debt Collector with Samples of Your Signature
Providing multiple samples of your signature to the collector will allow them to compare the signatures on file, and increase the likelihood that it will be readily apparent that you have been the victim of identity theft.
Providing as much information as possible to the creditors will have a two-fold effect: first, the collector will have all the information they need to verify that you are the victim of identity theft as it relates to the accounts they are attempting to collect on; and second, it lays the evidentiary groundwork for your claim that they did not conduct a reasonable investigation to cease their collection attempts after you notified them that they were attempting to collect on a fraudulent debt. If you can show that a debt collector attempted to collect on a fraudulent debt thirty (30) days after you provided them ample evidence that the debt was invalid, proving your case in court will be more manageable.
As the laws protecting victims of identity theft are very consumer friendly, your attorneys’ fees and costs will be paid by the creditors and CRAs who continue attempting holding you accountable for debts that you did not incur. For more information, please contact C.O. LAW, APC for a free consultation.