Fight back against lawsuits resulting from ID theft 

click to enlarge identity theft
  • Joe Raedle/Getty Images
  • A customer uses the credit card scanner at a Target store on December 19, 2013 in Miami, Florida. Target announced that about 40 million credit and debit card accounts of customers who made purchases by swiping their cards at terminals in its U.S. stores between November 27 and December 15 may have been stolen.
Harriet K. from the Sunset asks this week’s question:

Q: “I am the victim of identity theft. Someone stole my identity and bought some appliances and a TV on credit. I didn’t find out until I got sued for nonpayment. According to the court papers, I have 30 days to file an answer. I tried telling them they have the wrong person, but they say I have to prove it since it’s my name and Social Security number. What can I do?”

A: Harriet, unfortunately identity theft has become almost epidemic in our technological world.

This is not an area of law that I practice in, but I hit the books for you and can provide a general outline of your rights.

California Civil Code Section 1798.92 defines identity theft as the unauthorized use of another person’s personal identifying information to obtain credit, goods, services, money or property. Personal identifying information means a person’s name, address, telephone number, driver’s license number, Social Security number, place of employment, employee identification number, mother’s maiden name, demand-deposit account number, savings account number or credit card number.

A victim of identity theft has had his or her personal information used without authorization by another to obtain credit, goods, services, money or property, and did not use or possess those items obtained by the theft. In order to be legally considered a victim, you must file a police report alleging that your identity has been stolen.

The person who has sued you is called the plaintiff or, in cases such as this, the claimant, as they are claiming that you owe them money. If you had not been sued, but they were reporting you to a credit agency or threatening to sue you, you could bring a legal action against the claimant to establish that you are a victim of identity theft in connection with their claim against you. When, as is the case here, an action has been brought against you to recover on a claim that is the result of identity theft, you can file what is called a cross-complaint to establish that you are the victim of identity theft in connection with the claimant’s claim. This is where you, in response to their suit, sue them claiming that they are pursuing the wrong person.

You do have the burden of proving that you are the victim of identity theft by a legal standard called a preponderance of the evidence, i.e., that it is more likely than not that you are not the one who purchased the electronics. If you prove this, you are entitled to a judgment from the court that establishes that you do not owe the debt (a declaratory judgment). You may also obtain an injunction precluding the claimant from attempting to collect against you. In your case, since they filed a complaint against you, if you file and prevail upon your cross-complaint, you can get their claims dismissed. If you provided 30 days’ prior written notice to the claimant that you were the victim of identity theft, including a copy of the police report (if requested), you may be able to obtain any actual damages as well as attorney fees and costs in proving your case.

If you have provided the above-referenced 30 days’ prior written notice and you can show by a higher standard, called clear and convincing evidence, that the claimant failed to diligently investigate your notification of a possible identity theft or that they continued to pursue their claim against you after they were presented with facts that were later held to entitle you to a judgment, then they may be liable for a civil penalty, in addition to any other damages, of up to $30,000.

So, Harriet, if you have not already done so, file a police report for identity theft, then send it, and a written notice that you are a victim of identity theft, to the claimant explaining how you can prove that you did not make the purchase (for example, if it was delivered to an address other than yours). Ask them for an extension of time to file your answer while they review your notification.

I hope they will do the right thing and stop their collection efforts. Given the limited time you have to answer (30 days), I suggest that you consult with a general civil practice attorney in case you need a lawyer to file your cross-complaint. If your case is strong, you can get an attorney to take the case on a contingency where they can collect fees upon winning or a potential part of any civil penalty. Contact us at help@cbdlaw.com and we can try and get you a referral.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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