A San Jose, CA federal judge will allow a California identity theft victim to proceed with his lawsuit against the Bank of America. Guillen v. Bank of America, et al., (N.D. Cal. August 31, 2011). The Bank of America asked the federal court to throw out several claims of a Santa Cruz man who was the victim of identity theft.
Narcizo Zavala Guillen alleged that someone stole his identity and used his personal information to obtain two mortgage loans from Bank of America. Mr. Guillen was surprised when he received a letter from Bank of America stating the available credit limit on his credit card had been reduced to $1,000.00. In response to the letter, Mr. Guillen went to a Bank of America branch on or about January 21, 2009. There he learned that two mortgage loans had been taken out in his name. Mr. Guillen also filed an identity theft report with the Watsonville Police Department identifying the loans as fraudulent. Mr. Guillen also disputed the debt with all four major credit bureaus (Experian, Equifax, Transunion, and CREDCO).
In response, Bank of America sent Mr. Guillen a letter on June 29, 2009, wherein it acknowledged that he was indeed a victim of identity theft as to delinquent mortgages and indicated it had requested removal of the loans from Plaintiff's credit report.
Despite this acknowledgment, however, Bank of America continued to report the inaccurate information, and ultimately referred one of the delinquent mortgages to debt collector SRA to attempt to collect $145,816.20. Bank of America eventually commenced a foreclosure proceeding against the home securing the mortgages, and thereby caused the Santa Cruz County Recorder's Office to publish defamatory statements concerning Plaintiff in the foreclosure documents.
The federal court rejected the Bank of America's argument that Mr. Guillen could not bring a suit under the California identity theft statute because the bank earlier admitted he did not owe the debt. The judge noted that the Bank of America continued to try to collect from Mr. Guillen, and foreclosed on the home, even after they admitted he was a victim of identity theft. Relying on another Northern District of California decision, the court also held that federal law did not block the California Identity theft claims. California Civil Code §1798.92 et seq. Pasternak v. Transunion, 2008 U.S. Dist. LEXIS 115442, at *10-11 (N.D. Cal. 2008).
Similarly the federal court also held that federal law did not block Mr. Guillen's claims under the California Fair Debt Collection Practices Act (California Civil Code §1788 et seq.)
The federal judge also allowed Mr. Guillen to proceed with his claims under California's Credit Reporting Agency Act (California Civil Code §1785.25), alleging Bank of America reported false information to the credit bureaus.
The decision was also significant in that Mr. Guillen was able to avoid filing bankruptcy to try to stop the Bank of America from attempting to collect the alleged $145,816.20 due. So, those in California can use California's identity theft law, and related laws, to protect them when creditors and debt collectors are trying to collect money that is not actually owed.
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If you need help dealing with over bearing creditors call Attorney Ronald Wilcox at 408-296-0400.
