Note to debt collector not my debt! What happens if a debt collector harasses you over a debt that is not yours?
Have you ever been hassled by a debt collector for a debt that you did not owe? For many of you the answer to that question is “yes,” and maybe even more than once. In some instances, the harassment may have occurred because of mistaken identity -- you were pursued by a debt collector for a debt belonging to someone else because you and the other consumer have a similar name, address or social security number.
If this happens to you and you believe that there’s nothing you can do about it, YOU’RE WRONG.
Here is a case in point: A California consumer, Anastasiya Komarova, was being victimized by a debt collector because her identity was confused with someone else’s. As a result, she sued the debt collector for violations of the debt collection practices law. An immigrant from Russia who had moved to United States in 1995 and worked as an esthetician in Sunnyvale, California, Komarova ultimately won a jury verdict of over $143,000 in compensatory and punitive damages. Recently, the California Court of Appeal affirmed the jury’s verdict; but although she prevailed in the end, like others in her same situation, Komarova’s fight against the collection agency took years to resolve and caused her a great deal of emotional stress.
Komarova was repeatedly hassled by the National Credit Acceptance Corporation (NCAC), a collection agency, over a MBNA America Bank credit card debt of about $8,000, which wasn't hers. According to her lawsuit, debt collectors with the agency had been unrelenting and rude to Komarova, called her every other day and threatened her by saying things such as, “A judge has already decided you're responsible”, “We know you can pay” and “We know about your savings account.” They also continued to pursue her for the debt even after she repeatedly provided them with information proving that the debt did not belong to her.
Komarova also asked NCAC to send her information showing that the debt was hers. But NCAC responded by giving her information stating that the matter had taken to arbitration -- without her knowledge. The arbitrator, who was hired by MBNA, awarded the company $11,214.33, including interest and attorneys' fees, to be paid by Komarova. Eventually however Komarova received additional documentation related to the debt that showed that it did indeed belong to someone else: an Anastasia Komarova. The plaintiff spelled her name “Anastasiya”, with a “y”. In other words, just one wrong letter had caused an innocent woman to be tormented by debt collectors for years!
In its appeal of the jury’s decision for Komarova, NCAC asserted that it could not be held liable to her because of the litigation privilege, a privilege existing in California law, which says that attorneys and litigants cannot normally be held legally responsible for conduct committed in the pursuit of a lawsuit. However, the Court of Appeal in California ruled that the debt collection and identity theft consumer protection laws trumped the litigation privilege. In other words, the court said that a debt collector could not hide behind the litigation privilege if it had abused a consumer’s rights, whether or not the matter was in litigation.
FDCPA and Rosenthal Violations
Komarova’s case primarily involved violations of the federal Fair Debt Collection Practices Act (FDCPA) and California’s Rosenthal Act, both of which generally prohibit debt collectors from using false or oppressive tactics to collect debts and also protect identity theft victims from wrongful collection practices. (Our firm’s website, www.socaldebtcollectionabuse.com, has a more detailed list of the acts and practices which are prohibited by the federal FDCPA and the Rosenthal Act.) The Rosenthal Act also provides California consumers with protections not offered by the FDCPA. For example, the state law applies to original creditors that are trying to collect debts that they are owed, while the FDCPA only applies to traditional debt collectors, i.e. collectors that have been hired by creditors to collect past due debts on their behalf or that have purchased past due debts and are trying to recoup their investments.
Debt collection agencies (and creditors) are certainly entitled to collect debts. When they do however, they must follow the rules that have been established by federal and state laws and if they don’t they can be held responsible for their actions. Therefore, if you’ve been harassed by a debt collector or if your debt collection rights have been violated in some other way, contact an experienced FDCPA attorney to discuss your situation. The attorney may advise that you sue the debt collector for violating the FDCPA or the Rosenthal Act. If you win your lawsuit, you can recover money damages. Victims of debt collection agency harassment can, and should, fight back!
By Robert F. Brennan, Esq.
Brennan, Wiener & Assoc.
La Crescenta, CA
Co-author of Debt Collection Answers: How to Use Debt Collection Laws to Protect Your Rights