Identity Stolen & Creditors Knocking | California's Identity Theft Act to the Rescue
A guide to how identity theft victims can defend themselves when pursued by creditors and debt collectors on debts they never authorized.
Your Identity Has Been Stolen and Debts Have Been Incurred Without Your AuthorizationThe contents of this guide apply only to that subset of identity theft victims whose identities have been usurped and utilized to incur debt at their expense and without their prior knowledge, consent or authorization. It is not intended as a device or tool for true debtors to evade their lawfully incurred obligations.
For those individuals that fit within the confines of the foregoing, they are not without recourse. California's Identity Theft Act (Civ. Code Sec. 1798.93) provides such victimized "debtors" with recourse against unscrupulous creditors and debt-collectors who knowingly and recklessly continue to pursue collection efforts notwithstanding having been formally put on notice.
Among other things, the statute provides for the possibility of recovering "actual damages, attorney's fees, and costs, and any equitable relief that the court deems appropriate ...." (Act, Sec. (c)(5).) The Act likewise provides for the possibility of recovering "A civil penalty, in addition to any other damages, of up to thirty thousand dollars ($30,000) ...." (Act, Sec. (c)(6).) Declaratory and injunctive relief are likewise available. (Act, Sec. (c)(1)-(3)).) Of course, the burden of proof is on the ID theft victim to demonstrate, by a preponderance of the evidence, that he/she is indeed a victim of identity theft.
The foregoing remedies can be asserted by the ID victim either at the outset (prior to getting sued by the Claimant) or by means of a cross-complaint in an action where the Claimant has sued on the debt first.
What Does the Identity Theft Victim Need to Do?Generally speaking, the ID theft victim can only recover the civil penalties portion if he/she first (before suing) jumps through certain hoops to meet and confer with the Claimant concerning the bogus nature of the debt and the fact that he/she has been victimized by identity theft; that the Claimant failed to properly investigate the victim's allegations and continued to push forward with collection efforts notwithstanding being apprised of the issue. (See Act, Sec. (c)(6)(A)-(C).)
Among other things, ID theft victims that intend to utilize this procedure should promptly file a formal, written police report concerning the identity theft and provide a copy of that report to the pursuing creditors and/or debtors collectors along with a detailed explanation concerning the circumstances surrounding the debt.