Identity Theft?

What history does it show?

Is it being paid on, and is it current?
Or did payments stop at near when it was opened and the balance run up?
Is it showing as a charge-off, in collection, etc?

(CL$5000, bal. $6700 implies accumulating interest and late fees for some time, so probably charged off.)

 

You might start by calling BofA's fraud department, and finding out if the account was opened with your identifying information. If so, you have an id theft case, if not, maybe it is misidentification. Either way you want it removed.

If any of your identification was used to open the account, file a police report, and send a copy along with an id theft affidavit to both BofA, and each CRA. Send all communications CRRR, so you have proof of receipt. Also, you will want to put a fraud alert on your reports, and you may want to request copies of any applications, statements, credit slips, or payment checks, to determine the scope of the fraud.

Is your credit report showing just an account posted by BofA, or is it showing a collection account, possibly owned by a CA?

 

What "erroneous" addresses are showing on your reports? Are they in the area where you used to live before moving out of the country, or are they in an entirely different part of the country?

 

You may have a case of id theft by a relative.

Or you may have a case of id theft based on theft of your mail at some time, followed by a skip trace to your address of record at that time.

What you want to confirm is that that address is where statements were sent during presumably the initial period when the account was being paid. That would show that someone with routine access to mail at that address was making the payments, as opposed to intercepting the original offer, followed by intercepting the card, which would only take a couple mail thefts from that mailbox.

You also want to know if any changes of address occurred, diverting statements to some other address, even if the original offer was sent to that address.

If you want to confirm what really happened, the most direct way is to file a police report, and use it to request copies of the application, statements, and charge slips to see what was filled out on the application, where the statements were sent, what the charges were for, etc.

With regard to what would happen to your brother if he did in fact open this, I don't know. The banks claim id theft is not a serious problem to consumers because the theft victim is not held responsible, but in cases like this, which if I remember right, are about 20% of cases, you face the dilema of choosing to turn in your brother, or actually paying the fraudulent debt, and living with the damaged credit, too.

Does your brother have any problems that might lead him to choose to steal, such as a drug abuse or gambling problem?

Was anyone else living at that address at that time, perhaps a friend or girlfriend, that might have taken advantage of the opportunity?

 

Both the CRAs and the OC (BofA) will likely ignore your claim that it is id theft unless you file a police report. Once you do send them copies of a police report, they are then obligated under FACTA to treat it as id theft, which places requirements on them to remove it from your CR and not hold you responsible, unless they can show your id theft claim is fraudulent. In fact, BofA would probably rather treat this as a bad debt that you owe, since they have a far better chance collecting from you than from ever collecting from an id thief, so if you give them the chance, that is what they will likely do.

The problem in this case, as in most cases involving a relative, is that the account was opened at an address matching the address reported by your other accounts. Thus BofA's presumption will be that the account was as legitimately yours as your other accounts, and in fact, it was probably because the new account address matched the addresses reported by your other accounts, combined with your SSN and other id info, that led BofA to conclude the application was legitimate in the first place.

You can, presumably, rebutt this, based on lack of activity on your other accounts during the period you were overseas, combined with the various transactions during the period when you were not there to make them. To do so, however, you must first file a police report, in the city where you now live, whether or not that results in any action against anyone, including your brother. The assumption is, that since there are penalties for filing false police reports, you would not do so if it was not actually a fraudulent account.

Whether your police or DA, or the police or DA where your brother lives, considers this important enough to spend their time investigating is their decision. As a private citizen, you have very limited power to investigate anything, and no power to prosecute. Nor are you required to do so. You can still sign the required affidavits, and make a complaint with your local police, and that is what you must do to have the protection that the law (FACTA) provides to id theft victims against liability for fraudulent accounts.

Even if you got him to pay it off, in the absense of an id theft complaint, it would only appear that "you" had finally paid it off, and BofA would likely keep their damaging account information on your reports. Not only that, but since there apparently have been sporadic payments made, they may simply sue you, in which case your only defense would be to claim id theft. You would be in a stronger position to have filed those complaints already, shortly upon learning of the fraudulent account, than in trying to handle this yourself, which makes it look like he opened the account with your permission.

See ftc.gov, under their section on id theft.

 

Have you changed all of your accounts over to your current address?
Have you checked all of your accounts for any suspicious activity, independent of this fraudulent account?
Have you pulled all 3 of your reports to check for unexpected accounts?

You should not have to pay a fraudulent account if you report it as fraudulent, unless you allow yourself to be emotionally blackmailed, either by your relative, or by the creditor who might play on your suspicions that the theft was by your relative whether or not that is the case. If you find yourself in a position where you are getting no response in your attempts to get this fraudulent account off your records, contact a good attorney that handles debt collection litigation including id theft. You might benefit from having an intermediary, who can also give you legal advise, between you and the various agencies you will need to contact.

You may find these sites usefull:

http://www.consumer.gov/idtheft/
http://www.idtheftcenter.org/index.shtml
http://www.sdcda.org/protecting/identity.php

 

ATT would make their own inquiry in response to a CC application with them. NCO is a debt collector, although they might have been notified by a CRA that there was activity on your credit file, or a new address, as reported by ATT in its credit inquiry. NCO may be collecting on the BofA fraudulent account.

If the reports that ATT pulls in response to your CC application show this BofA acount, or a collection account, it is likely you will be rejected. If that happens, insist that ATT send you an adverse action notice indicating why they rejected your application, and which CRs they pulled to make that decision. Send your request for this AAN in writing, CRRR. You will want it, and copies of those reports, if you have to prove damages.

NCO is a debt collector, and as such is required to comply with FDCPA. Based on the address information they apparently provided as part of their inquiry on your credit file, they may be collecting on this debt, since that is also the address associated with the fraudulent account. They may be collecting on an account owned by BofA and assigned to them, or the debt may have been sold to them or another junk debt buyer on whose behalf they might be collecting.

They have been caught violating a number of FCRA, FDCPA, and state consumer laws, and are under agreements to comply in these settlements, and possibly others:

reaging debts reported on credit reports:
http://www.ftc.gov/opa/2004/05/ncogroup.htm

harassment (NCO is a Pennsylvania corporation):
http://www.attorneygeneral.gov/press.aspx?id=881

 

In order to minimize the amount of damage done by this fraudulent account, resulting from the negative TL, and probably soon, also collection accounts, you will want to report the id theft to your police promptly, obtain copies, and proceed to dispute with the CRAs based, using those reports. Keep all communications in writing, sent CRRR, so you can prove receipt by the intended company.

Since by pulling your report, NCO will now have your current address, you may expect to receive phone calls, or a letter, shortly. Their collection account TL might also show up on your credit reports, further damaging your credit scores. You will want to follow up to any contact by disputing the debt in its entirety and requesting validation, sent in writing, CRRR. You will also want to specify that since phone calls are inconvenient, they should contact you only by mail.

When you get a copy of your police report, you will want to then send copies of it, along with an id theft affidavit (see the FTC website) with your letter indicating that this is a fraudulent account opened as a result of id theft, and that you demand that they remove all negative reporting and terminate collection as required by FACTA. You will need to do this with BofA, as well as NCO or any other CAs that attempt to collect on the account, either by contacting you or by putting their collection TL on your CR.

You will also need to dispute all TLs related to this account on your CRs with the CRAs showing it on your reports. Again, include copies of your id theft fraud affidavit, police report, and your letter indicating that this is a fraudulent account opened by id theft, and demanding removal as required by FACTA. Do everything in writing, keep copies of everything you send, and send it CRRR, so you can prove when they got it.

They might still contact you by phone, probably to try to convince you you owe it anyway, or claim it is too late to dispute, etc. Be aware that people lie on the phone; they feel it is safer than lying in writing, where it can be shown in court. Other than to determine who is calling, and note anything they say, do not talk to them, other than to tell them that you have already notified them not to call.

Hang up, if you must. You do not even owe them common courtesy, if they will not be similarly courteous. If it continues, it is time to work thru an attorney with FDCPA, FCRA, and id theft litigation experience. If you have notified an opponent that your attorney is who he should contact for all further communications, all further contact with you can be considered harassing, and treated as such.

Although in theory, you should not be held responsible for an account you never opened, they can do a lot of damage to your credit and other credit relationships before you are able to get it all straightened out. It pays to keep on top of everything, with good records, and well documented communications, sent CRRR, in case you have to use their legal transgressions to either force compliance, or obtain compensation for the damage they do, and attorney fees to pay your legal costs.

 

The way you "make" either the CA, the OC, or the CRA comply is you take them to court. Before you can do that, you have to make it their legal obligation to comply, in a manner that depends on what law you want them to comply with. It is when they do not do what the law then requires, that you have a cause of action, and can go to court.

I would not use generic boilerplate letters from this, or any other site. Some of them throw in everything but the kitchen sink, including demands for information that may be irrelevant to the nature of your particular dispute. Some of the law firm web sites, or FTC site, have some examples of simple direct letters dealing with CRA disputes, validation, id theft, etc.

You want your dispute tailored to the law under which you have the right to make it (FDCPA for CAs, FCRA for CAs or OCs reporting, or CRAs processing disputes, FACTA (part of FCRA) for id theft, etc.), so that the CA or CRA is obligated under that law to respond.

Also, if you are disputing or requesting validation, for example, you would want it clear that that is what your letter is about, in case the CA fails to respond as required, since then your next step may be to court, where you want it clear to a judge what your letter was requesting, leaving the CA no excuses.

See FCRA, which applies to any party reporting information on your credit reports, as well as to the CRAs that maintain your credit files (read it all):
http://www.ftc.gov/os/statutes/fcradoc.pdf
See Sec. 605 on identity theft,
Sec. 611 on procedures in case of disputed accuracy,
Sec. 615 on requirements on users of consumer reports,
Sec. 616-618 on liability for negligent or willfull noncompliance and jurisdiction of courts.


See FDCPA, which applies to third party debt collectors, such as NCO, and their collection practices (read it all):
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm
Validation of debts:
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#809
Various restrictions on debt collection practices:
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#805
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#806
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#807
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#808
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#811
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#812
Civil liability:
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#813

Note: I am NOT an attorney. At some point you may still need or prefer to use the services of an attorney, as opposed to expecting to resolve this on your own. Note that both FCRA and FDCPA allow the courts to direct payment of not only damages, but attorney's fees. I am just trying to give you "the lay of the land" so you can find a just solution without being hoodwinked or threatened.

 

You should probably go down all paths you can, since you can't know which will be successfull, and which will move fastest. For example, if there is some delay in getting a police report, you probably don't want to wait in notifying any party that the account is fraudulent, since you can follow up with the police report and id theft/fraud affidavit when you get it.

You want it on record with any party that might proceed to damage you by their collection or reporting activity that the account is disputed, is fraudulent, and was a result of id theft. You want them to stop collection activities, and remove any damaging reporting as soon as possible, not resell the debt, or else become liable for noncompliance with FACTA if they ignore you.

You can file a police report on the identity theft, and request a copy. You will ultimately probably need this report to get the most complete resolution of this problem.

You should dispute any fraudulent TLs on your reports, both with the CRAs, and with the original data furnishers, whether BofA, or any CAs such as NCO, under FCRA and FACTA. You can also dispute any collection notices or attempts from NCO or any other CA on the account, undr FDCPA and FACTA. Indicate that the account is fraudulent, you did not open it, and request validation, including copies of any application, statements, charge slips, or payment checks, along with removal of all reporting as required by FACTA.

You should probably keep the letter as simple and clear as possible, leaving any details of how the fraudulent account may have been created to the police report. It is their responsibility to investigate, not yours.

As always, do it in writing, CRRR, and keep copies of everything.

 

Some of this may be useful, edited to match your situation:
http://www.idtheftcenter.org/letterforms.shtml

Here is an id theft affidavit from the FTC site:
http://www.ftc.gov/bcp/conline/pubs/credit/affidavit.pdf

 

It might be a coincidence, or it might mean one of two things:

1) BofA might have notified NCO, particularly if they assigned the account to NCO for collection.

2) Maybe BofA dumped it on NCO, since once they formally were notified the account was fraudulent, in writing, they would no longer be able to sell it.

Who knows?