As most of you know, when a credit bureau or a creditor fails to take effective steps to cleanse your credit report of identity theft derogatories, or fails to take steps to otherwise protect you from identity theft, you obtain valuable rights under the federal Fair Credit Reporting Act and various state laws which, depending on the circumstances, may put you into excellent position to obtain substantial compensation. However, this all depends on doing the right things before you file your lawsuit.
A good friend and credit expert, Gerri Detweiler, asked me to write out the specific steps that a consumer needs to take to protect his or her legal rights when he or she becomes the victim of identity theft. Here’s what I wrote out for Gerri:
“Victims of identity theft do not have strong legal rights unless and until they file, under oath, an official identity theft report. This usually is a police report, and my firm, Robert F. Brennan, A.P.C., continues to encourage identity theft victims to file identity theft police reports. However, sometimes police departments are too busy to take identity theft police reports. When this happens, in California the best alternative is the California Department of Motor Vehicles, which has jurisdiction over identity theft cases because it issues driver’s licenses. Also, you can file an identity theft affidavit with the Federal Trade Commission or with the FBI. These must all be signed under oath.
“An identity theft report from a particular creditor has no legal effect. So if, for instance, you report an identity theft situation to Wells Fargo, you can prepare and file one of Wells Fargo’s own identity theft affidavits in connection with Wells Fargo’s investigation of your identity theft situation, but Wells Fargo, as with most creditors, is a private bank and its own identity theft affidavit or report gives you no legal advantage. Ultimately you need to file a police report or one of the alternatives I mention above.
“Once you have a copy of your police report, make many, many copies because you do not know how long it will take to resolve your identity theft situation. My office recommends at least 25 copies. Keep these in a safe place. Send one to each of the three major credit bureaus—Equifax, Experian and TransUnion—and request an “extended fraud alert”. This means that, for a period of seven years, your personal phone number will be carried on your credit report with directions to call that number before any creditor extends credit to you. This is a way of verifying identification, and has some workability. Many companies like Lifelock do nothing other than set fraud alerts on consumer credit reports, for a fee, but this is something you can do yourself for free. Be sure to get an “extended fraud alert” for seven years because a standard fraud alert is only good for 90 days, which quite often is not enough time to resolve an identity theft situation.
“You will also need to notify the three bureaus of any accounts on your credit report which are identity theft accounts, directing them to suppress or block these accounts.
“After you send copies of the police report to the three credit bureaus, send a copy to each creditor who carries an identity theft account in your name. Inform the creditor that the account in question is a product of identity theft, and instruct the creditor to cancel the account and cancel your alleged indebtedness on the account. Give the creditors 30 days to comply.
“If the credit bureaus or the creditors refuse to cancel the alleged debts or block the accounts, you have rights under both federal and state laws. Your rights include the right to clean up your credit reports and cancel any alleged indebtedness with the creditors. You can also get damages paid to you, including emotional distress damages, and you have the right to have your attorney’s fees paid by the bureaus or by the creditors under most of these laws. Under many of the laws you can also seek punitive damages.
“All of your rights begin, however, with getting a police report and sending copies to the right places. Always be professional. Most often sending the police report alone will rectify the situation, but when it does not, you will need an attorney who is familiar with these laws. In Southern California, you need to contact Law Offices of Robert F. Brennan, A.P.C., in La Crescenta, which is in Los Angeles County.”