Legal Question in Credit and Debt Law in California
Who is the Victim of Identity Theft?
I don't understand identity theft. In every story I have heard about identity theft, it seems to be taken for granted that the consumer whose identity was stolen is the ''victim'' of the crime, liable for whatever damage the impostor causes. That liability is shifted considerably from the consumer to the financial institution through special consumer-protection laws and voluntary programs, but the consumer is still left with some financial exposure and a great deal of responsibility for setting things right. This makes no sense to me. By what theory of law does the consumer become the victim?
If someone steals my identity and uses it, for instance, to make a credit card purchase, aren't they entering a fraudulent contract with the credit card company, and isn't the company 100% responsible for that contract? If the credit card company tries to enforce the contract and collect money from me, don't they bear the burden of proof for demonstrating that the contract is valid? And if it isn't valid, don't they have to absorb the entire cost of the fraud? Furthermore, if the credit card company cannot prove that an account is valid, yet it assigns a poor credit rating to the nominal account holder, isn't it guilty of libel?
1 Answer from Attorneys
Re: Who is the Victim of Identity Theft?
None, probably, depends, usually, and no. First of all, If the credit card company has sued you in court and lost because they could not meet their "burden of proof" and then reports you to credit bureaus, then such reporting would be improper and you could demand it changed. Of course, it will cost you a lot to defend yourself in such a case. I would venture a guess that this route is not the one you really want to take and I would advise against it. Right now, before the credit card company sues you, the "burden of proof" is on you to prove identity theft if you want the credit card company to drop the negative report against you. Once you provide sufficient evidence to the credit card company to show that you did not authorize the transactions in question, then and only then, and only if the credit card company refuses to remove the negative report, will you have a legal claim against the credit card company that it violated the Fair Debt Collection Practices Act. You seem to be under the mistaken assumtion that you are the only victim here; you are wrong. Your credit card company is a victim too. It is not their fault that someone is using a credit card under your name and social security number.
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