Monthly Archives: January 2012

Seeing Your Shadow in the Form of an Identity Thief? Here’s What to Do.

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Groundhog Day AGAIN? Why, it seems like the last one was just yesterday …

Of course, I’m referring to the classic Bill Murray romantic comedy. Bill plays a TV weatherman covering Punxsutawney Phil‘s annual moment in the sun (or the shade). The “next” day, the hapless reporter discovers that every day is Groundhog Day, over and over again.

But if there’s anything worse than being the same person on the same eternal day, it’s being a different person EVERY day. That’s what it’s like if you’re a victim of Identity Theft — and it’s neither romantic nor a comedy.

If someone steals your name, birth date, social security number and so on, you could find yourself on the wrong end of a lawsuit when creditors try to collect the debts the thief has run up. Meanwhile, your hard-earned credit score could take a big hit.

Even before you contact an attorney, there are a few things you should do yourself.

1.  Above all, file a police report.  Some stations let you file online, but if that’s not an option, speak in person to an officer or deputy and let them know that the law requires you to file a report.  (And here we should digress:  one peculiarity of some identity theft laws is that you are not defined as a “victim” of identity theft until you file a police report!  Yes, that’s a strange definition of the word “victim,” but it lets the authorities know you are serious and not just claiming that the dog ate your homework.)

2.  Make a photocopy of your driver license or other state-issued ID.

3.  Photocopy a recent utility bill with your current address on it.

4.  Write a statement describing the particulars of the theft and your attempt to report it to the creditor and its attorney.  For example, if your theft involved a credit card, give the credit card name and account number, and say how much was fraudulently charged and for how long. Also supply your social security number and phone number. If your address has changed since either a) your ID was issued, or b) some or all of the theft occurred, give the dates you moved and any additional interim addresses. Finally, above your signature, write: “I certify the representations made are true, correct, and contain no material omissions of fact.”

Got that?  OK, gather it together with a cover letter stating that you are reporting the information as a “Request that Creditor be Notified of Identity Theft Under 15 USC Section 1681c-2“, which should also be the statement in the “re” line at the top of your letter template. Then send it all to the following addresses (accurate as of February 2012):

Equifax Security Freeze
P.O. Box 105788
Atlanta, Georgia 30348

Experian Security Freeze
P.O. Box 9554
Allen TX 75013

TransUnion Fraud Victim Assistance Department
P.O. Box 6790
Fullerton CA 92834

Also, send copies to the creditor (or, if the debt has been repackaged, to the debt collector who contacted you), and send yet another set of copies to any attorney who has contacted you in an attempt to collect the debt. At the bottom of the template copy (since every letter will be the same except for the address to which it’s sent), put a “cc” indicating all the places you’ll send the cover letter and copies.

Having done all the necessary “self-help” work, it may be necessary to contact an attorney. In fact, if you are being sued, you must answer the suit (usually within 30 days) and also, if advisable, file a cross-complaint with your answer. The cross-complaint enables you to request damages from the debt collector (sometimes including attorney fees) if the suit against you unreasonably goes forward, or if the attempts to collect the fraudulent debt don’t stop. Even if you’re citing federal law (for example, this one [pdf]), your cross-complaint can be filed in the state court hearing the suit against you; you also have the option to request that the suit be removed to federal court, and still include state claims.

This Groundhog Day, if you see your shadow in the form of someone pretending to be you, give the Mlnarik Law Group a call.  We’ll whack those debt collectors back into the hole where they belong, but for you the winter of your discontent will be over.

- Jim Erickson, Associate Attorney

UPDATE

Mlnarik Law Group Inspires Policy Review by FTC and U.S. Dept. of Justice

Inspired by correspondence from the Mlnarik Law Group, the Federal Trade Commission’s Bureau of Consumer Protection and the Department of Justice’s Office for Victims of Crime are in the process of reviewing an important aspect of Identity Theft protocols.

In fact, the matter is so significant that the agencies intend to meet with both the International Association of Chiefs of Police and also Experian (one of the Big Three credit reporting agencies). Together, they hope to address the issue raised by the Mlnarik Law Group: how and whether Identity Theft victims may file police reports online.

Credit reporting agencies require a valid police report in responding to claims of Identity Theft. However, there is some uncertainty as to whether an online report is valid, particularly given a preference that police reports include an officer’s badge number. Also, even though a given police department (for example, San Jose’s) posts an online warning that making a false report is a crime, this might not be considered as strong as the warning provided by a police officer in person.

Unfortunately, however, some victims complain that their local police department or sheriff’s office refuses to take their police report. Such complaints are especially troublesome given the fact that the legal definition of “Identity Theft victim” is not met in some states unless a victim makes a report.

This is a crucial aspect of Identity Theft policy in a digital world. The FTC agent who responded to the Mlnarik Law Group’s concerns is to be commended for so quickly taking such decisive action.

 

Chinese New Year 2012: Year of the Dragon | Good Fortune

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To help you find fortune in the New Year, several customs and traditions are to be followed. Chinese New Year is the longest and most important festivity in the Chinese calendar.

A must-have in every Chinese household during Chinese New Year is a plate of nian gao (new year cake).  It symbolizes continuous prosperity in the new year.  But nian gao is only one of many New Year desserts.  A personal favorite of mine are sesame balls, which come in all sizes and whose filling may be sweet or savory.  These delicious treats resemble gold nuggets, so naturally they symbolize money and wealth.

I loved celebrating Chinese New Year as a child, not only because of the good food but also because it was lucrative!  It is a long-standing tradition that married adults give hong bao (“lucky money”) to children and unmarried people to wish them good luck in the New Year.  What other holiday allows a child to make a whopping $200 in a matter of hours? 

Alas, the loot wasn’t in my hands for long:  I had to give it to my mother for “safe keeping.”  As an eight-year-old, I didn’t understand her reasoning.  Why can’t I spend all my money on candy and toys?  What do you mean I have to learn to save?  Now as an adult I realize it was her way of teaching me to be a financially responsible person.

For some of us, it’s second nature to overspend.  In order to control my “natural” instinct to buy not one but two pair of pumps whenever there’s a mad sale at Nordstrom, I incorporate restraint and awareness into my daily routine.  Before I make that purchase I have to be aware of what I really need and how much I can afford.  If I realize I neither need nor can afford the extra pair, I will invoke the gods of restraint to help me turn away from that sales rack.

I have my mother to thank for teaching me the importance of smart spending.  For those who are still learning the ropes of financial responsibility and finding it difficult, do not get frustrated.  There are many methods and resources to put your financial house in order.  The right solution for you may be as simple as cutting down your consumption of gourmet coffee or the like — but if it’s a lot more complicated than that, you may need professional advice in order to get a fresh start on your finances.  We at the Mlnarik Law Group specialize in providing such assistance.  Give us a call and we’ll help you find the right direction and ultimately enjoy the fruits of your own hong bao.

Sun Lin Fai Lok to all!  May the New Year bring you prosperity and good fortune!

- Angie Tong, Bankruptcy Attorney

S. Bay Neighborhood Law Firm Making Contacts at the S3 Tri-Chamber Mixer

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Continuing its outreach to the Bay Area business community, the Mlnarik Law Group, LLC will be one of only eight Santa Clara exhibitors at this year’s S-3 Tri-Chamber Mixer & Mini Expo.  Held from 5:30 to 7:30pm, January 19, 2012, at the Doubletree by Hilton San Jose, the Mixer/Mini Expo is the joint effort of the San Jose Silicon Valley, Santa Clara and Sunnyvale Chambers of Commerce.

Hundreds of Chamber members will be on hand to make new business connections and strengthen old ties, and the Mlnarik Law Group will be prominently featured in their midst.  At last year’s event our fellow exhibitors included everything from a graphic design firm to a “troubleshooting” business consultant to a candy company run by local entrepreneurs.  The Mlnarik Law Group was on hand offering its legal expertise in all matters of corporate governance, including business formation, development, and maintenance.  How to decide between being an LLC, S-Corp, LLP, GP, or Sole Proprietorship?  What should you (or shouldn’t you) include in the employee handbook?  When is it necessary to use NDAs or “non-competes”?  What will be your web agreements and privacy policies?  Our attorneys cover all that and much more, and the Chambers of three Bay Area cities are getting to know us better with each new year.

However, the Mlnarik Law Group, LLC is much more than a business boutique.  As “A neighborhood law firm committed to your success”TM our work reaches into the areas of real estate, estate planning, family law, employment law, bankruptcy and fair treatment of debtors, not to mention general litigation on a case-by-case basis.  But why read about it here?  Come on down to the Tri-Chamber Mixer and Mini Expo and we’ll tell you all about it!

Jim Erickson, Associate

The Law Protects You from Stalkers AND “Stalking” Debt Collectors

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Usually when someone receives dozens of phone calls at all hours of the day, all by the  same person who also troubles the victim’s family, friends and neighbors, we have a word for it: STALKER! And stalkers, as we all know, are criminals.

But suppose the same scenario applies with just one difference: the “stalker” is a debt collector. Most people would be much less likely to think of the behavior as criminal. But in a sense, it is. Maybe it’s not as scary (except to your pocketbook), and maybe it’s not as creepy (although often extremely creepy tactics ARE used), but it’s every bit as illegal — in that the debt collector can be hauled into court and face stiff penalties. However, it’s not the police who do the job: If you’re the victim, it’s YOU. You can take action against the debt collector and, if you’re successful, you can collect as much as $1,000.00 in fines and you can recover your attorney’s fees and court costs — all thanks to something called the FDCPA (here) and its cousin, the Rosenthal Act.

The list of debt collector no-no’s is much too long to post here, but we can briefly mention the most typical abuses. If you notify them in writing to “cease further communication,” their phone calls have to stop; the same goes if you tell them your attorney’s name and that doesn’t even have to be in writing!

Whether or not you notify them, they’re NEVER allowed to:

  • call before 8 AM or after 9 PM
  • leave the phone ringing for a long time
  • contact anyone else except to ask about your whereabouts (and then only once per person)
  • mention your debt to anyone else
  • send you a postcard of any kind, or an envelope that makes it obvious you’re in debt, or is marked to appear as though it’s from a lawyer or the government or a court

While they are allowed to call you fairly often, they must never use threatening or abusive language, nor speak to anyone but you, your spouse, your legal guardian or your attorney. They can’t suggest you’ve committed a crime or are going to prison, nor can they threaten anything that they don’t intend to do. In fact they can’t do anything that is (legally) harassing or oppressive or abusive or unfair or unconscionable.

But what if they do?  Here’s what: Take them to court. If you’re successful (keep good records of the calls and letters, to be sure you can document the offenses and increase your chance to win), they could be obliged to pay you as much as $1,000.00 in fines plus your attorney’s fees and legal costs. Contact the Mlnarik Law Group if you think you have a case and together we can get that stalker to obey the law!

Jim Erickson, Associate

2012 New Year Resolutions: Dive in and be Part of the Solution

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Celebrating the end of one year and the beginning of the next is a blast!  I enjoy celebrating everything that has been accomplished and look forward to what lies ahead.  This year the top ten New Year resolutions look to be the same as last year’s, and I can’t help but ponder a hypothesis.

As we compete to get ahead, people compromise what is most important to them in order to survive; and as the economy declines the sacrifices made become deeper as competition grows.  As the unemployment rate increases those who remain employed find themselves, paradoxically, sacrificing time with their families in order to support them; and sacrificing their own physical and psychological health in order to support themselves.

With 2012 an election year, we look to our leaders for guidance and ask what they will do to turn things around and put Americans back to work.  But without looking to our leaders for guidance, I focus on the people I see every day and change what I can and let go of what I can’t.

I cannot change a company’s business decision to send jobs overseas but I can choose to buy things made in the U.S.A.   I can’t fix the economy but I can help to pick up the pieces by helping one family at a time.

A decision made by any one of us may be relatively small, but collectively the small decisions we all make will add up and make a difference.   Together we can move forward and help the economy recover.

This year I resolve to make purchasing decisions based on what I need instead of what an advertiser wants me to buy.  I resolve to fight for the people in my family, my community and my country so that we may collaborate to solve problems that hit home.

This year especially, I remember my training as a PADI Rescue Diver and the number one rule of a rescue attempt: “Be part of the solution, not the problem – Think Then Act!”

- John Mlnarik, Founder/Principal Bankruptcy Attorney