Can I sue the post office for losing my mail? They lost my tax return, putting me in danger of identity fraud! What are my options here? Can I sue? what should I do to prevent my identy From being stolen?
I am a criminal defense lawyer, I do not assist clients who have been the victim of identity theft unless that has resulted in them wrongly being charged for a crime someone else has committed (and, yes, this does happen). That said, I recognize that being a victim of Identity Theft can be devastating. The following are steps a victim of financial identity theft can take:
1. Order Your Credit Reports
If you learn that someone has opened an account in your name or with your SSN, you must first gather up all the information you can about what other accounts have been opened. The Credit Reporting Agencies (CRAs) have almost all the information you need. Federal Law permits any consumer to order his or her own credit report from the Big Three CRAs once per 12-month period FREE. Here are instructions on the Federal Trade Commission's website. http://www.consumer.ftc.gov/articles/0155-free-credit-reports
2. Make a Copy of the Report(s) and Review Them for Errors/Discrepancies
When you receive the report(s), copy them. Do not write on your originals. Review all of them carefully for anything that you do not recognize as yours. In particular, any accounts that you never authorized, any addresses and names that should not appear for you, and any inquiries by companies that you have not applied for insurance or credit and have no accounts. This is a very important step and if you miss anything now, it will affect you in future steps. Start a file folder for each credit reporting agency and for each debt collector or creditor and put everything in a very secure place, because you do not want your credit information to get lost or stolen or handled by anyone else.
3. Request a Fraud Alert
Write to each of the Credit Reporting Agencies and request a fraud alert on your file. This will mean than anyone trying to open any new accounts with your information is going to have to supply additional information. Tell them that you are filing a Complaint with the FTC, then follow up.
4. Prepare an FTC Complaint with Supporting Affidavit
Once you have gone through the reports, go online to prepare the FTC Identity Theft Complaint and Affidavit form. http://www.consumer.ftc.gov/articles/pdf-0094-identity-theft-affidavit.pdf. The form can be completed on line and provides room for all problem items in your report that you believe are improper (see previous step) and may be from identity theft. The form can also be used to file a complaint with the FTC. The FTC also advises to "Call the ID Theft Clearinghouse toll-free at 1.877.ID.THEFT (1.877.438.4338) to report the theft."
5. Contact Local Law Enforcement Agencies - Report Locally
Please contact your local police or sheriff's office for an appointment with someone who knows about identity theft police reports. If you just show up, unannounced, the person who helps you may be unfamiliar with identity theft and so that person may give you a run around or even simply tell you to take a hike, because this was your friend or relative. Bring an extra copy of your credit reports, as you have marked what appears to be improper, and an original and a copy of the FTC ID Theft Form. You need the police or sheriff to prepare a report for identity theft, so you can put this report number on the FTC ID Theft Affidavit (page 5) and sign it with the officer present on page 6. If the local police and sheriff refuse to take a report, then contact either a state agency, such as the State Police, or the U.S. Postal Inspector. This is very important to get a government agency involved in the investigation and report.
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How do you know the Post Office lost it and somebody didn't steal it from the mail? Regardless, you have nothing. What harm can you articulate? Damages of any kind? It looks like you are just upset because of what could happen, not what has actually happened. And I'm not too sure that you can sue the Post Office for something like this, FTCA notwithstanding. I suggest a credit monitoring service such as Lifelock or call the three major credit reporting agencies and request a fraud alert.
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I do not believe this would be a viable claim. You apparently have not suffered any specific damages. You also are assuming, but you must prove in court, that the Post Office breached a duty owed to you which caused you to suffer a loss. What if your return was never actually mailed? What if it was purloined from your mailbox? Neither of those scenarios would result in liability on the Post Office. You must be able to prove what you assert in a lawsuit.
It may be helpful for you if you were to file your return electronically and also provide the IRS with a bank account into which they could electronically post your income tax return money. That would eliminate the possibility of postal issues. In Vermont you are also entitled to a free credit report from each of the major reporting agencies, each year. I suggest you get your free copies and make sure that no one is using your credit. There also are services available, for a monthly fee, which can monitor your credit. Perhaps such a service will be helpful to you.
Legal Disclaimer: If this information has been helpful, please indicate below. Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
Under the Postal Reorganization Act, 39 U. S .C. § 101 et seq., the United States Postal Service is "an independent establishment of the executive branch of the Government of the United States." 39 U.S.C. § 201.
In other words, it's the federal government. A principle called "sovereign immunity" means you can't sue the government, unless the government waives its immunity.
The federal government waives its immunity from suit upon certain conditions. The Postal Reorganization Act provides that the Federal Tort Claims Act, which is a waiver of sovereign immunity, "shall apply to tort claims arising out of activities of the Postal Service." 39 U.S.C. § 409(c). The Federal Tort Claims Act is found in the United States Code at 28 U.S.C. §§ 1346(b) and 2671-2680.
However, 28 U.S.C. § 2680, titled "Exceptions," expressly provides that the waiver of sovereign immunity found in section 1346(b) does not apply to "(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter."
Translation: You can't sue the post office for losing your mail. If you do, the lawsuit will be dismissed by motion on sovereign immunity grounds shortly after you serve it on the USPS.
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