California Law Protecting Victims
California’s Identity Theft Act
Every two seconds, a consumer falls victim to identity theft. Thieves access bank accounts, credit cards, online payment services, and home equity lines of credit. Often, when the victim refuses to pay the fraudulent charge, the credit card company or bank pursue the victim for payment or turn the debt over to a collection agency. Victimized consumers can spend months trying to sort out the mess and get the debt erased. The California Identity Theft Act (“CITA”) was enacted to help these victims.
The San Francisco and California fraud and identity theft attorneys at Evans Law Firm, Inc. represent consumers who are victims of identity theft but are nevertheless pursued by lenders, banks, credit card companies and debt collectors for payment of the fraudulent charges. If you or a loved one has suffered identity theft in California and is still being pursued by a creditor or debt collector for payment, call us today at (415)441-8669.
Sometimes identity theft is detected immediately as for example when you ATM card or credit card has been used by a thief and you are notified by your bank of suspicious activity. Other times the theft may be more gradual and not so easily detected. Keep an eye on the balances of your bank accounts and look over your charges and withdrawals frequently for unexpected charges. Other indications of identity theft can include failing to receive bills or other mail, which may signal an address change by the identity thief, receiving credit cards you did not apply for, being denied credit for no apparent reason, or receiving calls or letters from debt collectors or businesses about merchandise or services you did not buy.
When any of these things happens to you, act quickly. The first step is to notify the creditor of the fraudulent charge or withdrawal. You also have the right to ask that nationwide consumer reporting agencies (like Equifax, Experian and TransUnion) place “fraud alerts” in your file to let potential creditors and others know that you may be a victim of identity theft. This can protect you and your credit rating. A call to any one of the national credit agencies is sufficient to put a fraud alert in your file for all of the agencies.
Once you report the fraudulent activity to the appropriate creditor, CITA forces creditors and debt collectors to investigate the claim of fraudulent activity. Cal. Civ. Code § 1798.93(a). The notice rules are discussed below. Once proper notice is given if the creditor or debt collector still pursues the victim for payment of fraudulent charges, the victim may bring an action against the creditor or debt collector to establish that he or she is a victim of identity theft in connection with those charges and may obtain damages and other relief against the creditor for their collection activities. Cal. Civ. Code § 1798.93(a); Peters v. Discover Bank, U.S. App. LEXIS 7254, at*1-2 (9th Cir. 2016).
The notice to the claiming creditor or debt collector must include a police report of the theft. Cal. Civ. Code § 1798(a)(6)(A). The creditor then has thirty days to investigate the fraudulent debt. If, after the thirty-day period expires, the creditor continues its collection activity against the victim, the consumer is entitled to bring a lawsuit.
In any such lawsuit, documentation is extremely important. In addition to the police report, the plaintiff should maintain and present all written documentation regarding the disputed charge. Victims should also complete a Federal Trade Commission (FTC) Identity Theft Affidavit to substantiate the identity theft claim. Other documents needed to pursue a victim’s action include proof of identity, signature samples, and any other information or documents that support the allegation of identity theft. The consumer fraud and identity theft attorneys at Evans Law Firm can help you assemble and organize the evidence of the identity theft in preparation for bringing your lawsuit.
CITA provides the basis for the victim’s lawsuit but creditors and debt collectors often fight back with motions to dismiss or demurrers to the victim’s complaint. Competent counsel, such as the identity theft attorneys at Evans Law Firm, know how to respond effectively to these tactics and help you pursue claims for your monetary losses, emotional distress, and, if applicable, punitive damages. Our attorneys can lead your case through filing the complaint, pre-trial motions, discovery, investigation and trial. If successful a victim is able to recover damages, attorneys’ fees and costs, and equitable relief, and may also recover up to $30,000 in the form of a civil penalty. Cutler ex rel. Jay v. Sallie Mae, Inc., 2015 U.S. Dist. LEXIS 58157, at *20 (C.D.Cal. 2015).
If you or someone you love is the victim of identity theft and may have a claim against a creditor or debt collection agency under the California Identity Theft Act, call Ingrid Evans and the other San Francisco and California identity theft attorneys at Evans Law Firm, Inc. at (415) 441-8669, or by email at <a href=”mailto:firstname.lastname@example.org”>email@example.com</a>. Our attorneys also have experience with physical and financial elder abuse cases, nursing home abuse, qui tam or whistleblower cases, complex financial contract cases and cases against large insurance companies. We can help guide your case through a jury trial or toward an equitable settlement. We also handle cases involving whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.