WHAT LAWS CAN APPLY TO IDENTITY THEFT CLAIMS?
Various consumer protection laws can be utilized to help victims of identity theft.
For example, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, or the Telephone Consumer Protection Act. More specifically, California’s Identity Theft Act or common law intrusion upon seclusion as well. Consumer attorneys often utilize a combination of many different consumer protection statutes in order to address each aspect of the fraud and interruption in your life.
The Fair Debt Collection Practices Act 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 such a claim, the following must be proven: to establish that Defendant violated the FDCPA, Plaintiff 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).
In California, the Rosenthal Fair Debt Collection Practices Act 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 a consumer to prove the following: (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 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.”
To be successful in such a claim, the following must be proven by the consumer “(1) Defendant is a ‘furnisher’; (2) Plaintiff notified the CRA that Plaintiff 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 can be utilized to put an end to automated telephone calls. The TCPA prohibited the use of 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)
California’s Identity Theft Act – In enacting the California’s Identity Theft Act, Cal. Civ. Code §§1798.92 et seq. (“CITA”), the California Legislature 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 for such a claim, the consumer must show that (1) the consumer provided the business written notice at least 30 days before filing this case notifying the business that she was the victim of identity theft; (2) that the business failed to diligently investigate the consumer‘s identify theft claim; and (3) that the business continued to pursue its claim against the consumer 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 – Under California 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.
While many other statutes or theories can benefit victims of identity theft act, these core of statutes are more regularly utilized to address various aspects of the fraud.