IDENTITY THEFT IS NOT A JOKE – Four Action Steps for Identity Theft & Fraud Victims
WHAT IS IDENTITY THEFT AND FINANCIAL ACCOUNT FRAUD?
You already know what this is, so I won't bore you. (If not, click here). However, don’t feel bad if you are a victim, as this happens to someone every 2 seconds – leading to fraudulent debt, or incessant and unlawful debt collection.
FOUR STEPS TO HELP YOURSELF IMMEDIATELY.
PULL YOUR CREDIT REPORT
You can obtain a free copy of your credit report from each of the big three consumer reporting agencies (Equifax, Experian, TransUnion). Once you have your credit report, look for strange or unrecognized accounts, records, inquiries, names, birthdates, SSNs, or addresses.
REPORT IT
Immediately file a police report, and an Identity Theft Incident report with the Federal Trade Commission (FTC) here.
CONTACT YOUR BANK
Report the ID Theft and dispute all issues from your credit report to the companies that maintain your accounts, including you bank or credit card company. You can find their contact information on your statements, credit report, or Google.
PLACE FRAUD ALERT
You can prevent the fraudster from hurting you further by placing a fraud alert with the big three Credit Reporting Agencies (CRAs). You can do this online directly with Equifax, Experian, and Trans Union.
YOUR LEGAL OPTIONS.
Sucks that this happened, but a number of laws are available to protect victims like you. This includes federal laws like the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, or the Telephone Consumer Protection Act. In California, there are the California’s Identity Theft Act, the Rosenthal Fair Debt Collection Practices Act, or even common law tort claims like intrusion upon seclusion.
The Fair Debt Collection Practices Act (FDCPA) will address unfair debt collection practices in the form of collection letters, telephone calls, or a collection lawsuit. The FDCPA was enacted because the United States Congress has found abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors, and has determined that abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. Congress wrote the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq, to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. To be successful in a FDCPA claim, you must show that: (1) Defendant was attempting to collect a “debt,” (2) Defendant is a “debt collector,” (3) Plaintiff is a “consumer,” and (4) Defendant violated at least one subsection of the FDCPA. See Vanover v. Carruthers, No. SA CV 17-0196-DOC (DFMx), 2018 U.S. Dist. LEXIS 11877, at *6 (C.D. Cal. Jan. 24, 2018).
The California Rosenthal Fair Debt Collection Practices Act (RFDCPA) similarly acts to protect consumers from unfair debt collection practices. The California legislature has determined that the banking and credit system and grantors of credit to consumers are dependent upon the collection of just and owing debts and that unfair or deceptive collection practices undermine the public confidence that is essential to the continued functioning of the banking and credit system and sound extensions of credit to consumers. The Legislature has further determined that there is a need to ensure that debt collectors exercise this responsibility with fairness, honesty, and due regard for the debtor’s rights and that debt collectors must be prohibited from engaging in unfair or deceptive acts or practices. See Cal. Civ. Code §§ 1788.1 (a)-(b). The RFDCPA requires you to prove that: (1) Defendant was attempting to collect a “consumer debt”; (2) Defendant is a “debt collector”; (3) Plaintiff is a “debtor”; and (4) Defendant’s collection activities violated the FDCPA and thus the RFDCPA. See Cal. Civ. Code § 1788.17.
The Fair Credit Reporting Act (FCRA) will seek to remove fraudulent accounts from your credit as well as inquiries that occurred in connection with those accounts. Congress enacted the FCRA “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” This law requires the banks to properly investigate all disputes and accurately report what goes on your credit report. To be successful in a FCRA claim, you must prove that (1) Defendant is a ‘furnisher’; (2) you notified the CRA that you disputed the reporting as inaccurate; (3) the CRA notified the furnisher of the alleged inaccurate information of the dispute; (4) the reporting was in fact inaccurate; and (5) Defendant failed to conduct the investigation required by § 1681s-2(b)(1).” See Sanchez v. U.S. Bank Nat’l Ass’n, No. 8:18-cv-00500-JLS-KS, 2019 U.S. Dist. LEXIS 108692, at *9 (C.D. Cal. June 27, 2019).
The Telephone Consumer Protection Act (TCPA) can be utilized to put an end to those annoying automated collections calls and text messages. The TCPA prohibits the use of robocalls, or an ATDS, to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to emergency telephone lines, hospital rooms or other health care facilities, and paging and cellular telephones. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1045 (9th Cir. 2018).
The California’s Identity Theft Act (CITA) was enacted by the California Legislature because they found that the right to privacy was being threatened by the indiscriminate collection, maintenance, and dissemination of personal information. Accordingly, CITA was enacted to combat the lack of effective laws and legal remedies in place. To protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits. Cal. Civ. Code §1798.1(a), (c). To recover a penalty a CITA claim, you must show that (1) you provided the business written notice at least 30 days before filing this case notifying the business that you were the victim of identity theft; (2) that the business failed to diligently investigate your identify theft claim; and (3) that the business continued to pursue its claim against you despite “being presented with” facts sufficient to show that the consumer was the victim of identity theft. Cal. Civ. Code. § 1798.93(c)(6); see Ma v. Target Corp., No. SACV 17-01625 AG (JDEx), 2018 U.S. Dist. LEXIS 128902, at *12 (C.D. Cal. July 30, 2018).
Intrusion Upon Seclusion is a California common law claim also available to you. Under California tort law, the elements for intrusion upon seclusion are: “‘(1) the defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion, private affairs or concerns of the plaintiff; (2) [t]he intrusion was substantial, and of a kind that would be highly offensive to an ordinarily reasonable person; and (3) [t]he intrusion caused [the] plaintiff to sustain injury, damage, loss or harm.’” Joseph v. J.J. Mac Intyre Cos., 238 F. Supp. 2d 1158, 1169 (N.D. Cal. 2002) (citing CA BAJI 7.20) (emphasis added). “To prove actionable intrusion, the plaintiff must show the business penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff.” Shulman v. Group W. Prod. Inc., 18 Cal. 4th 200, 232 (1998). To prove this tort, the plaintiff must prove she had an “… objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” Id.
SEEK AN ATTORNEY IF YOUR DISPUTE WAS REJECTED.
Why did this happen?
Unfortunately, banks/businesses reject a large number of claims – both legitimate and fake. They receive significant numbers of fake identity theft claims from consumers who wish to avoid valid debts. This makes it more difficult for legitimate victims of identity theft to avoid liability for the fraud.
Therefore, if you have unsuccessfully exhausted the dispute process, it may be time to escalate and speak with an attorney. An attorney can help (1) escalate your dispute, (2) resolve the fraudulent debt and damages incurred, and (3) even obtain financial compensation for you.
Can you afford an attorney?
YES. Many consumer protection attorneys, including our team, can handle ID Theft matters for you on a contingency basis. Like those personal injury billboards you see while driving – you don't pay unless you win.
