ABCs of Identity Theft

You know the Vonage Commercial?  With the Huge Bill?

Unfortunately, I had many experiences where I’d sue someone and it was the first time they’d ever heard of that huge bill.  Sadly, in most instances the perpetrator was either a former intimate partner or a relative.

Identity theft is covered by the Fair and Accurate Credit Transactions Act of 2003 (FACTA).  I’m here to educate and suggest, not to litigate.  But I need to let you know this:

It is not the consumer’s job to prove who stole their identity.  A lawyer with the backing of a big bank can do a heck of a better job than joe schmoe who just found out how his ex girlfriend paid for her shopping habit (oh those shoes!). It’s a consumer’s job to bring it to the attention of the bank as soon as reasonably possible.  The bank is allowed to investigate, because believe it or not a lot of false claims of identity theft are made.  But Cooperate in the Investigation!  Because if it’s a legitimate claim, most banks and collections agencies will get rid of it ASAP.

And for goodness sakes, if you discover you’re the victim through a collections letter, don’t send the generic demand for Verification!  See my post below – Failing to Get Heard.  Write that short, simple, sweet letter explaining what happened or at least what you think happened.

The Insiders Guide to the FDCPA: Failing to Get Heard

Disclaimer: Once again this is a blog, not legal advice or legal research, and no attorney-client relationship is created merely by reading my blog.

Both in my time in and out of consumer collections, I saw consumer after consumer fail to have a legitimate dispute taken seriously by the Collections Agency.  Too often, the file would reach litigation before someone was able to put the breaks on.  Today I do this in defense.  This is the most expensive way possible to resolve problems, hands down.

The following was almost always a mistake made by a consumer, not an attorney. So here we go:

The biggest failure here was the Internet-Generated Demand for Verification Letter.  These are all over the internet.  Unfortunately, collections agencies have seen them a thousand and one times.  They are form generated, with overreaching demands.  One example of an overreaching demand for verification – and that is a great law phrase, by the way – is when the letter 1) disputes everything, then 2) demands a precise detailed accounting from a zero balance and often 3) requests some made up documents from a national banking authority.  Unfortunately the Law says, and the Courts have agreed, that when a collections agency receives a request for verification, they just hve to confirm in writing with the creditor that that’s what they say is owed.  And these days, most agencies have an affidavit from the creditor included with placement.  So – assuming you have a legitiate dispute, which you may need legal help to figure out, you sent a form letter, they sent a form affidavit, and nothing has been accomplished except time wasting and lost opportunity.

No one is the wiser.

My suggestion is to always send a short, sweet dispute letter.  Do not make demands you don’t understand.  Tell them what the problem is and what went wrong in nice polite language.   I do suggest discussing the issue with an attorney who is knowlegdeable who can really guide you in whether you have a legal defense or not.

The Insiders Guide to the FDCPA – How to Kill Your Cease and Desist Letter

First, Legal Disclaimer: This Blog is not legal advice.  It does not substitute for legal research.  No Attorney- Client relationship is established by virtue of merely reading, commenting, or responding to a blog.

Now, the Beef:

The biggest mistake I see lay people and Attorneys do is to threaten the FDCPA against a creditor to which the FDCPA does not apply.  If you do that as an Attorney, you hold up a huge sign that says “I have no idea what I’m doing.”  You have now robbed your cease and desist letter of its teeth, virtually guaranteeing you will not be taken seriously and round filed.

Now, this is a blog, and I’m framing the approach, not doing free legal research.  I’m framing the issue and telling people the number 1 mistake I saw made when I did Big Bank legal collections.  Now I’ve seen the light, and represent consumers.  But I only represent on legitimate defenses or abuses.  I have a reputation to uphold, which is being fierce so that when I say I’m going to do something if you don’t stop, it’s a promise not a threat.

I cannot tell you how many Attorneys, let alone lay people, are Shocked, Shocked I Tell You to discover that their threats were baseless.  The devil is in the Definitions. Here’s the rundown, under the FDCPA:

A Creditor is a person (defined pretty loosely) to which you owe money.  Think of it as Big Bank.

A Collector under the FDCPA is someone who regularly collects money on behalf of others.  And the provisions of the FDCPA only apply to Collectors.  There is an exception for in house collections department that’s not obviously named, but that’s a nuanced analysis and beyond the scope of this article.

So the Big difference is first party, in-house collections departments – not subject to the FDCPA, and third-party collections agencies who are subject to the FDCPA.   The FDCPA applies to third party collections – got it?  So if you are receiving calls from the Collections Department of ABC Hospital, they are not subject to the FDCPA, so no one should threaten them with the FDCPA.  It does not t matter if they complain to your mother that you’re not paying, they are NOT violating the FDCPA.  You have to get more creative than that and go back to the fundamentals of common law.

But I’m not going to give away all my secrets.

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