Identity Theft Affidavits – Part 2

Identity Theft Affidavits – Debt Collector Dirty Trick, Part 2

Sometimes debt collectors will attach an “identity theft affidavit” to their discovery and request that you fill it out and file it with authorities – or return it to the debt collector so that it can file with the authorities. I believe this practice violates the Fair Debt Collection Practices Act (FDCPA) and makes both the debt collector and its attorney liable to you under the Act. This is Part 2 of this article – for part one click here.

Attorney and Client Liability

In most situations the attorney representing a debt collector is, himself or herself, a debt collector in his own right. This is just a pragmatic reality – debt collection firms specialize so they can handle the huge number of cases they file cheaply. An action taken on behalf of a debt collector by a lawyer is also an action by a debt collector under ordinary principles of “agency,” where someone acting on someone else’s behalf takes on their character and authority. Similarly, the debt collector is responsible for the actions of its agents (lawyers) made in an attempt to collect the debt. Under most circumstances, therefore, you could sue them both.

Should You Sue them Both?

I have discussed whether or not to sue a collection attorney before, and my conclusion was that caution would be appropriate. Normally you can apply enough pressure to a debt collector to cause it to drop your suit (eventually) simply by counterclaiming against it. In this situation, however, my conclusion is weighted towards suing the lawyer, too. The practice is probably unethical on the part of the lawyer, and the threat that creates is substantial. Likewise, because of the extremity of the offense – involving deception and bullying in a way which seems to implicate the entire legal process – the threat to the lawyer and debt collector is more likely, in my opinion, to outweigh the disadvantages of getting the lawyer “more motivated.”

And of course the whole thing drives a conflict of interest wedge between the lawyer and debt collector, which should require them to have separate representation in your counterclaim. That multiplies their costs, of course, many times over. To some extent that’s true in any counterclaim based on some action undertaken by the lawyer, but in this situation I believe the deceptive action taken by the lawyer is so subversive and underhanded – so outright dastardly – that the argument for suing the lawyer (and the debt collector, too, of course) is much stronger than usual.