Identity Theft

Identity theft is the fastest growing crime in America.  Loker Law, APC is here to help you take back control of your life.

WHAT DO I DO IF I AM THE VICTIM OF IDENTITY THEFT?

A consumer falls victim to identity theft every two seconds. In fact, the White House recently acknowledged that identity theft is the fastest growing crime in America resulting in the loss of billions of dollars every single year. Identity theft continues to wreak havoc given massive data breaches such as the September 2017 Equifax hack that exposed highly sensitive financial information of an estimated 143 million American consumers and the COVID-19 Pandemic which saw a 400% increase in fraud. Of course, the fact that identity theft is a problem likely does not come as a surprise but did you know that various consumer protection statutes provide multiple avenues to help you move on with your life?

HOW DOES IDENTITY THEFT HAPPEN?

Identity theft ranges from highly sophisticated cybercrime to simply putting another individual’s personal information on a contract without their knowledge or consent.

Cybercrimes are increasingly problematic in terms of identity theft as many businesses are increasing dependence on electronic data and computer networks for their day-to-day operations.  The convenience of these electronic transactions allows an identity thief to steal your information in seconds but unfortunately it can take years to unravel all of the issues thereafter.

HOW CAN I AVOID BEING THE VICTIM OF IDENTITY THEFT?

The Federal Trade Commission recommends the following in order to avoid becoming the victim of identity theft:

  • Read your credit card and bank statements carefully and often.
  • Know your payment due dates. If a bill doesn’t show up when you expect it, look into it.
  • Read the statements from your health insurance plan. Make sure the claims paid match the care you got.
  • Shred any documents with personal and financial information.
  • Review each of your three credit reports at least once a year. Visit annualcreditreport.com to get your free reports.

Following these steps cannot guarantee that you will not become the victim of identity theft but being proactive can go a long way in minimizing your damages.

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.

WHAT IS IDENTITY THEFT?

Identity theft means that someone has used your personal information for their own financial gain without your consent.  For example, a credit card tied to your own credit history used for the fraudster’s purchases, a student loan listing you as a co-signer or primary student without your knowledge, or intercepting your tax refund to name a few common issues.

There are many types of identity theft with identity thieves constantly coming up with ways to get access to your sensitive information.  For example:

Data breaches A data breach can either be intentional or accidental.  An intentional data breach usually occurs when a criminal finds a way to access a company’s computer system in order to steal private information.  On the other hand, accidental data breaches can occur if company laptops or cell phones are stolen from an employee.  Regardless of the cause, data breaches tend to result in thousands or millions of potential victims.

Formjacking This type of cybercrime occurs when hackers insert malicious code to collect data from website forms.

Mail Theft Even in our digital times, old fashioned snail mail still provides a treasure trove of information for identity thieves.

Phishing The scammer tricks you into handing over personal information.  These days this often happens through emails designed to look like they are coming from a business you are familiar with, or a text message, or telephone call.

Synthetic Identity Theft The identity thief uses a real social security number but a fake name and date of birth.

Unsafe Internet Connections Have you ever connected to public Wi-Fi? Regardless of whether you are given a password (the thief is likely there with you and has the same password) or not, public wi-fi connections offer a gateway into your computer for potential thieves.

WHAT SHOULD I DO IF I NOTICE SUSPICIOUS ACTIVITY?

If you believe that you might be the victim of identity theft, start acting immediately. Two things that you should do right away to start remedying identity theft are:

  1. Contact the company that maintains the account you believe to have been tampered with. You can find their contact information on your billing statements (if you have been receiving them); credit report; or, a general internet search.
  2. Place a fraud alert on your credit report. This will prevent new credit accounts being opened in your name without your consent.
    1. Equifax – this can be done online at https://my.equifax.com/consumer-registration/UCSC/#/personal-info or by calling (800) 525-6285
    2. Experian – online at https://www.experian.com/ncaconline/fraudalert or
    3. Trans Union – online at https://fraud.transunion.com

WHAT DO I DO IF MY CHILD IS THE VICTIM OF IDENTITY THEFT?

1,000,000 children were reported victims of identity theft in 2018.  Given their youth, these children likely have no prior credit history and no reason to monitor credit activity as a result.  This allows the identity thieves to open multiple fraudulent accounts in your child’s name for years with no fear of being caught.   As a matter of prevention, parents can place freezes on their child’s credit reports which will help preclude new accounts being opened.

WHAT IF THE BUSINESS REJECTS MY IDENTITY THEFT CLAIM?

Unfortunately, businesses receive significant numbers of fake identity theft claims by consumers who wish to avoid valid debts.  This issue makes it more difficult for legitimate victims of identity theft to avoid liability for the fraud. If you have exhausted the dispute process, it may be time to speak with an attorney.

CAN I AFFORD AN ATTORNEY TO ASSIST WITH MY IDENTITY THEFT CLAIM?

Yes, you can afford an attorney to represent you in fixing identify theft issues. In fact, most attorneys that handle such claims are able to pursue the lawsuit on your behalf on a contingency basis. This means that the attorney will pay costs as they arise and bear their own attorneys’ fees as they are incurred.  If the lawsuit is successful, everyone gets paid.  If unsuccessful, no one gets paid.

WHAT TYPES OF DAMAGES CAN I SEEK FOR IDENTITY THEFT CLAIMS?

A successful lawsuit that fixes identity theft issues will allow you to recover damages comprised of (1) actual damages; (2) punitive damages; and, (3) attorneys’ fees and costs.

  1. Actual Damages

Actual damages are comprised of your: (a) pecuniary loss; and, (b) emotional distress.

  1. Pecuniary Loss

Pecuniary loss is another way of referring to your out-of-pocket damages.  Such damages flowing from identity theft issues can be denials of credit, reduction in spending limits, the inability to purchase or refinance a home to name a few common categories. 

A claim for pecuniary loss asserts that the inaccuracy on the consumer’s credit report resulted in the consumer either receiving no credit or credit at an inferior interest rate than what the consumer otherwise would have qualified for if their credit history was accurately reported. With the assistance of an economist, these damages can become very high very quickly. For example, how much more will the consumer have to pay for their home financed through a 30-year mortgage if the interest rate they received as the result of the inaccurate credit report is 1% worse than what they should have qualified for?  This issue will force the consumer to pay more every single month for 30 years!

  1. Emotional Distress

Consumers can seek to recover damages associated with stress, frustration, humiliation, sleepless nights, mental distress, loss of appetite, injury to reputation or creditworthiness, fights with loved ones, etc. that were incurred as the result of identity theft issues.  It is inherently difficult to quantify the value of these damages so the jury is left to decide what will make the consumer whole. How much is the stress, etc. worth? Is it $1? Is it $100,000 or more?

  1. Punitive Damages

Punitive damages are intended to punish the defendant and send a message to other similar entities.  In terms of identity theft claims, punitive damages can be awarded based upon the scope of the consumer’s dispute and review of the businesses response in conjunction with how the business has handled other identity theft claims.

  1. Attorneys’ Fees and Costs

Many consumers choose not to exercise their consumer rights because they believe that they cannot afford an attorney.  The good news is that most consumer protection statutes – including those that apply to identity theft claims – allow the attorney to handle the lawsuit on a contingency basis.  This means that the consumer is not responsible for the attorney’s fees or costs at any time.

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