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Identity theft in California as an affirmative defense to a collection lawsuit

Identity theft in California as a partial or total affirmative defense to any lawsuit based in whole or in part on unauthorized charges made to a credit card, or other account is the topic of this blog post.

In other words if the underlying debt is partially or entirely the result of identity theft, then the victim of identity theft has a valid defense to the portion of the charges that were unauthorized, and to any resulting interest or fees related to the charges. There are also state-law remedies available in California, for instance, a victim of identity theft may sue affirmatively and seek injunctive relief in the form of a finding that the individual does not owe a debt.

Note that the first thing a person who is the victim of identity theft should do is file a police report immediately as soon as they realize that they have been victimized by identity theft. This is required in order to utilize the remedies in California. They should also send a written notice to the creditor attempting to collect the debt based on the unauthorized charges.

The California statutes relating to the remedies available for a victim of identity theft are contained in Civil Code Sections 1798.92-1798.97. The full text of several of the statutes are reproduced below.

Specifically anyone who has been served with a lawsuit based on a debt or claim based in whole or in part on unauthorized charges made to a credit card, or other account due to identity theft may file a cross-complaint against the person suing them and ask the Court for affirmative relief that the individual does not owe a debt.

And if they can show that they notified the party who filed the lawsuit that they were the victim of identity theft at least 30 days prior to filing their cross-complaint they may be entitled to actual damages, attorney fees, costs and any equitable relief that the Court deems is appropriate. In fact, in certain circumstances they may also be entitled to a civil penalty of up to $30,000.00 if they can show by clear and convincing evidence that they notified the other party and the other party failed to diligently investigate the claim of identity theft and continued to pursue their claim even after they were notified pursuant to Civil Code § 1798.93.

The Court has continuing jurisdiction for 10 years from the filing of the original action in order to join related causes of action and defendants based upon the theft of the same person’s identity, the Court may also extend the jurisdiction over the matter if good cause is shown pursuant to Civil Code § 1798.95.

The cross-complaint or any joinder of a defendant should be brought within 4 years of the date that the victim of identity theft, knew, or should have known of the identity theft. See Civil Code § 1798.96.

The remedies that are discussed here are cumulative to the rights and remedies provided under other laws, and they do not restrict any legal actions against the person who perpetrated the identity theft. See Civil Code § 1798.97.

As the number of incidents of identity theft have risen dramatically in California as well as the rest of the United States over the last few years, correct use of the procedures and remedies discussed in this blog post.

Attorneys or parties in California who would like view a sample letter to a creditor from a California victim of identity theft can see below.

Attorneys or parties in California that would like more information on a super litigation documents package containing a sample letter to a creditor in California regarding identity theft as well as over 200 other sample legal documents for California and Federal litigation can use the link shown below.

Super litigation documents package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. You can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

To view over 200 sample legal documents for use in California and Federal Courts sold by the author of this blog post visit http://www.scribd.com/legaldocspro/documents

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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