- Jared Hartman, Esq.
- Posted on January 15, 2016
Imagine a bank—such as Wells Fargo—contacts you and claims you owe them money on a credit card that you’ve never heard of. You ask some questions about the time and location of the application, and you discover that, indeed, this account was opened in your name fraudulently. You tell Wells Fargo’s agents that you never opened this account and you have been the victim of identity theft. However, they ignore your complaints and persists in calling you in an attempt to collect. You are now facing the very real future of continued harassing calls, threatening letters, potential debt collection lawsuits against you, potential wage garnishments and bank levies, and potential negative credit reporting against your name and social security number. All over an account that you never opened. What do you do? How do you protect yourself?
In California, consumers who are the victims of identity theft are actually protected by law from debt collection activity upon the account opened under identity theft, but you cannot just sit idly by and hope everything falls into place. You must take action, and we at Semnar & Hartman, LLP are experienced in helping!!
Under California Code 1798.92-1798.93, if you or a loved one have been the victim of identity theft, you can bring a lawsuit against a debt collector or bank that is claiming they are owed money upon the fraudulent account in order to have a judicial finding (called declaratory relief) that you are not liable upon the account. In connection with such a lawsuit, you can request a court order (called an injunction) that the debt collector or bank stop trying to collect from you, and you can also have the court order that any security interest (such as a car title loan or home mortgage loan) is void and unenforceable. Moreover, if the bank or debt collector has filed a lawsuit against you, you can file a counter claim against them seeking dismissal of their lawsuit in addition to declaratory relief and an injunction.
In order to recover attorneys’ fees, costs of litigation, actual damages, however, you have to put them on written notice of the identity theft and provide them a copy of either a police report or DMV report showing that you lodged a formal report as a victim of identity theft. You have to provide this written notice and the police report to the address identified by the creditor as being their address for processing identity theft claims. You have to also wait 30 days after providing such notice before filing suit. If they have failed to diligently investigate the claim and persisted in their efforts to collect despite your compliance with all of the above, then you may also be able to recover a statutory penalty against them for up to $30,000.00 in addition to actual damages, attorneys’ fees, and costs of litigation.
A sample complaint against Wells Fargo for this very type of allegation can be found by clicking here.
There are other laws under the Federal Fair Credit Reporting Act that protect your credit reports from suffering derogatory accounts opened under identity theft and fraud, that prevent new fraudulently accounts from being reported, that require the credit reporting agencies to remove accounts that have been identified by you as identity theft, and place a freeze on your credit and prevents new accounts from being opened entirely. However, these laws require their own steps to be taken by you and will be reported under a different article. We are experienced in handling these claims as well.
We can help you protect yourself!!! Do not hesitate to contact us immediately for a free and confidential consultation to discuss your rights and to see how we can help.