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Should I plead identity theft as an affirmative defense before Plaintiff has produced any documentation of the debt?
Anonymous2 views3 answers
I'm being sued on a debt that I'm sure is not mine. I have previously informed the Plaintiff's (FIA Card Services) predecessor in interest, Bank of America, that I never opened an account with them. After receiving calls from a number of creditors I realized that I was a victim of identity theft and filed a police report. Now I'm being sued. The Complaint does not include any documentation of the debt, nor the written instrument upon which they are basing the claim that I opened a card with them. Is it enough to deny the allegations and ask for proof of agreement and documentation of charges in my answer or do I need to also mention as an affirmative defense that I was a victim of identity theft and this might be what the suit is based on?
Thank you.
It is enough to demand that they provide proof of an agreement between you and the plaintiff. If they can't provide that, then the court should dismiss their case against you. To be safe, I'd certainly plead the id theft as well - might as well cover all the bases, and it certainly can't hurt your case.
First, as an ID theft victim, you should have a lawyer help you with this.
Second, you should not affirmatively plead "identity theft" as an affirmative defense. The complaint should already have an allegation that you entered into a contract or an account, and that is a required element of their case in Michigan. Because it is an element of their case, you only need to deny that allegation in order to put the defendant on notice that it is not your contract. There are, however some land mines to be aware of. Specifically, if the collector/creditor has attached an affidavit to the complaint you MUST attach an affidavit denying your responsibility for the debt. If there is no affidavit attached, this is not a concern.
If you are an ID theft victim you should seek the assistance of an attorney, because this item will likely be on your consumer reports, and you will need assistance to be able to resolve the problems caused not only by the account information, but also the public record that now exists concerning the suit which has likely been picked up by the credit bureaus. Seek help immediately. You should not deal with this without a lawyer.
In addition to what the others have said, identity theft is NOT an affirmative defense. It is a denial defense and does not have to be separately plead.
