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Identity Theft Affidavits – Debt Collector Dirty Trick

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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.

Attaching an Identity Theft Affidavit violates the FDCPA
 

Attaching the ID theft affidavit violates the FDCPA because it deceptively attempts to create the impression that they can require that such an affidavit be filed, and being unable to file such an affidavit exerts improper and unconcionable pressure on the debt defendant to give up on his defense and capitulate to the debt collector.

No Right to the Affidavit
 

The discovery process does not give any party the right to require another party to make a report to any governmental agency. The only way you could be forced to take such an action is by court order (possibly, under certain circumstances unlikely to occur in debt litigation – and certainly not as part of the discovery process). Discovery is a process of asking about and providing answers (or objections) to questions about documents or other information you have in your possession or control. Sometimes – but rarely – this can include making “compilations” of particulary complex data or records. Never can it require you to create or send a report of any sort to someone unrelated to the litigation (i.e., the police).

Deceptive
 

Knowing that forcing you to make a report on identity theft is far beyond their legitimate powers, the debt collectors will sometimes merely “include” it in their discovery packets – inviting you to draw the conclusion that you must file it with the police. In the case of a represented party against an unrepresented, unsophisticated party, this is probably an unethical practice for the lawyer to engage in. It is deliberately deceptive and blatantly tries to create a false impression on the part of someone vulnerable to misrepresentation.

Attempt to Collect a Debt
 

The FDCPA makes any debt collector liable when it uses unfair or deceptive techniques in its efforts to collect a debt originally owed to someone else. Simple attaching an ID theft affidavit to discovery is utterly deceptive, as it tries to take advantage of an unsophisticated litigant's lack of knowledge – and fear – of the legal process to cause it to do something the debt collector has no right to ask. And of course this exerts pressure on the consumer to pay if for any reason he or she cannot truthfully file such a report. Making a false report to the police authorities is a crime. Being unwilling to file one makes no statement about whether or not the debt is legitimate or owed to the debt collector – but it knows that unsophisticated pro se litigants will think that it does. So these litigants will feel pressure to give up their cases – pressure applied under the disguise of the legal process but deriving no actual power from it.

The epitome of an unfair debt collection practice.

This is Part 1 of this Article. Click here for Part 2.

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Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.

 

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