Duties of California Debt Collectors in Identity Theft Cases
California law imposes special obligations on a debt collector if you notify it that the debt resulted from identity theft.
If someone steals your identity and fraudulently incurs debts in your name, California law provides certain protections to you if a debt collector tries to collect those debts. Read on to learn how to notify a debt collector or creditor that you are the victim of identity theft, and what the obligations of the debt collector are when it receives such notice.
(If you are concerned about the effect that the debt will have on your credit report, visit our Cleaning Up Your Credit Report area. To learn more about preventing and dealing with identity theft, visit our Identity Theft area.)
The California Fair Debt Collection Practices Act
The California Fair Debt Collection Practices Act (CFDCPA) protects California residents against abusive or deceptive debt collection. It must be followed by debt collectors and creditors collecting their own debts. The CFDCPA contains specific protections for debt collection if you are the victim of identity theft.
(To learn more about the CFDCPA, see California Fair Debt Collection Laws.)
Debt Collector Obligations in Identity Theft Cases
Under the CFDCPA, here’s what happens if you notify a debt collector or creditor that the debt it is trying to collect was the result of identity theft:
First, the debt collector or creditor must temporarily stop collection efforts.
Second, the collector or creditor must conduct a good faith inquiry based on the information you gave to it. If it is not the original creditor, the debt collector must verify the debt or judgment from the original creditor.
The third step depends on what the collector determines after its inquiry.
- Disagrees with you. If, after conducting an inquiry, it believes the debt is actually yours, it can resume collection efforts if it provides you with a written explanation as to why it believes your claim is false.
- Agrees with you. If it agrees with you that the debt is not yours, it must do the following: stop collection of the debt permanently; contact any credit reporting agency it reported the debt to and ask it to remove the adverse information; and if the debt collector is not the original creditor, notify the original creditor that it terminated collection because of the identity theft.
Notifying the Debt Collector of Identity Theft
In order for the above protections to kick in, you must notify the debt collector or creditor that the debt arose from identity theft. Here are some ways to do that.
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Contact the Police of Government Agency
You can get a police report of fill out a government affidavit and send it to the collector. Any one of the following will work.
- Contact the local police to get a police report. If you do this, then you should make sure that the police report contains a reference to the specific debt that the collector is trying to collect.
- Obtain a Federal Trade Commission Affidavit of Identity Theft and submit a copy of this affidavit to the collector. The FTC created this form so victims of identity theft wouldn’t have to fill out different forms for every company they contact about the identity theft. (For more about this form, visit the FTC’s website at www.ftc.gov.)
- Obtain an Identity Theft Victim’s Fraudulent Account Information Request from the California Office of Privacy Protection and submit a copy of this form to the debt collector. It has a similar purpose to the FTC’s form. For information on getting and filling out the form, visit the California Department of Justice’s website at oag.ca.gov/idtheft.
Write Your Own Statement
You can also write your own statement (called a “certification”) to give to the debt collector. You should include a sentence stating, “I certify the representations made are true, correct, and contain no material omissions of fact.” This means that you have to be completely honest about the identity theft, and you cannot withhold any information that the debt collector may need to know.
Include the following in your statement:
- an affirmative statement that you are a victim of identity theft, along with specific facts
- a copy of your driver’s license (or California identification card)
- copies of any letters or emails you have disputing the debt
- a copy of any document that proves where your residence is (such as bills or utility statements)
- your telephone number
- the name of the person who you think did incur the debt, if you know or have any information about this, and
- a statement that you did not authorize anyone else to incur the debt for you.
Date and sign your letter, and include the city you are in when you sign it.
Other Forms of Notice
If you already informed the debt collector that you were the victim of identity theft, but didn’t use one of the above methods of notification, the collector may:
- ask you to submit one of the above forms of notice, or
- send you a copy of the Federal Trade Commission’s Affidavit of Identity Theft form.
Your Remedies if a Collector Violates These Rules
If a debt collector or creditor violated your rights as an identity theft victim under the CFDCPA, you may sue for damages. If you are successful in the lawsuit, a court may award you any actual damages you incurred because of the violation as well as attorney’s fees. In addition, if the debt collector acted “willfully and knowingly,” then a court should award you an additional $100 to $1,000.