Discover sucks re: identity theft
Question: My ex-girlfriend committed identity theft against me. She took out a lot of credit cards in my name. When sent copies of the police report., etc, all the companies have been reasonable in releasing me from obligation resulting from this, except Discover. They claim, after a “thorough investigation” (thorough investigation my ass!) that I’m responsible for the debt. I’ve asked for copies of the application, or ANY proof they think they have that I’m responsible. They tell me they don’t keep copies of the applications. (i.e., “our dog ate it.”) Which I figure means that they didn’t require *any* proof of ID at all, and just don’t want to admit there never was any application — with the other companies she was apparently just able to sign up online, using info she knew about me.
I guess they feel that they can just proclaim whatever they want, and I have to accept it. Screw that. I am incredibly angry, and would like to send Discover straight to hell. Since that’s not in my power, any ideas on what to do next? Can I sue for damages? If so, what is the name of the crime they committed that I can go after them for? Can I sue in my state, or would I have to travel to wherever they’re incorporated, or what?
Relax. You don’t owe Discover anything. You didn’t sign up for any credit card and didn’t authorize the girl friend to do so. You have no reason to care what Discover thinks. Just ignore them. There is no reason for you to call them, write to them, return any calls.
No, you cannot successfully sue Discover. They have done you no harm. They haven’t cost you any money or caused you to incur any expense. They have committed no crime and no civil tort.
Someday, you might have a claim against Discover if their efforts to collect the debt end up amounting to a violation of the Fair Debt Collection Practices Act. It hasn’t happened yet on the facts you provided. If it ever does happen, you will sue them, win, collect a ton of money, and be happy the whole think happened. Or, they might make an adverse report to a credit reporting agency. If that happens, there are things you can do, but it hasn’t happened yet and probably won’t. Relax.
Miscellaneous points:
You cannot be required to take any dispute to arbitration because you didn’t sign any contract that says so.
The FTC, the consumer frauds division of your state attorney general, the Better Business Bureau, the Comptroller of the Currency and the state bar have no reason to be concerned and there is no reason to contact them. They can do nothing about this non-problem.
Even if there had been a misdemeanor committed by Discover, which there hasn’t, and even if you had any grounds to file a misdemeanor criminal complaint against anyone at Discover, which you don’t, there would be nothing for you to hand to any defendant and no possibility whatsoever that any officer would accompany you while you try to hand the defendant anything.
Your household insurance won’t cover contract liability or losses caused by someone defrauding you, or losses caused by theft, none of which has happened.
Don’t contact the CEOs of Discover Bank or Morgan Stanley at home. You have no right to bother them. You don’t have any potential claims against them.
This answer must not be relied on as legal advice for the reasons posted here: http://mcgyverdisclaimer.blogspot.com
Answer: If you follow Mr McGyver’s advise you may wind up with the following:
– a bad credit rating that will prove difficult to fix; and in the long term whatever voluntary statement you add to the file may (1) live forever and (2) prove counterproductive.
– an arbitration award against you that can and will be enforced by the courts (even though you never agreed to arbitration in the first place) because you failed to appear and contest the jurisdiction (or the jurisdictional fact, and the fact of your [not] signing the application for credit were found against you.
It is true that there is one (1) unreported (except on Westlaw) case that found for the consumer: Maranto v. Citifinancial Retail Services, Inc.. 2005 WL 3369948 (W.D.La.,2005). But at what expense? You can find more cases enforcing arbitration agreements, some of them under circumstances like yours. And many more that ride roughshod over consumer complaints of the unfairness of the clause or their inability to be heard on the merits. (A few states have passed consumer protection laws on the subject; I don’t know what state you’re in.)
Mackey v. MBNA America Bank NA, 343 F. Supp. 2d 966 http://www.consumerlawclass.com/documents/mackey.html
I don’t propose to get into a debate with Mr McGyver, who may or may not be an attorney. (I am, but retired). I can say that if you take his advice you are asking for serious trouble along the lines of Beth Plowman’s as reported in the Washington Post on Feb. 24, 2005: http://tinyurl.com/lkkq2
Discover Card has a particularly nasty reputation. I would not normally advise targeting senior corporate officials, but Discover’s particularly nasty attitude starts at the top, and so should you.
What ever you do, DO NOT IGNORE ANY CORRESPONDENCE. And get the name and extension of everyone you speak to. Send all letters certified mail, return receipt requested. If you receive notice of arbitration and can’t attend (because far away or because you can’t get off work) you should hire a local lawyer to represent you (and to try to claim you costs and his/her fees, although s/he may not succeed in that…). If you can’t afford that, write to the arbitrator, return receipt requested, and try to telephone as well.
I know something about arbitration, and about how the courts by and large defer to arbitration clauses even when they haven’t in fact been agreed. Whether the fact of agreeing to the clause can be decided by the arbitrator or whether the courts may decide that fact depends on circumstances. It’s a gamble you should not take.
As for your household insurance: your policy may cover you. Mine covers me. But if you don’t notify the in time, you’re out of luck.
I don’t often intervene in newsgroup legal questions. And, unlike Mr McGyver (be he lawyer or not) I never comment unless I know the answer, and usually I provide citations too: I have a hard drive full of databases.
Good luck.
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