Identity Theft on the Rise in Real Estate

Identity theft is one of the fastest-growing crimes in the nation, says Congresswoman Melissa Bean. The FTC receives over 250,000 reports of identity theft every year and USA Today reported that in 2007 an estimated 260 million records were stolen – that amounts to 8 records stolen every second of every day.

RealtorĀ® Associations, MLS Boards, Brokers and Agents are going to have to work together to halt this looming threat in the real estate industry that is the central focal point of trend #6 in my 2008 TRENDS Report.

In 2007 the real estate industry experienced a significant number of breaches and violations involving identity theft and data security such as:

  • A hacker took advantage of a programming error on a MLS public website and took over the entire network – both at the data center and MLS office – taking down the public site and gaining access to membership systems, the MLS store – everything.
  • A man walks into an association, past the busy receptionist and plugs his laptop into a network jack – minutes later he had taken the membership database and all the software he needed to decrypt and use it for malevolent purposes.
  • An employee of a subsidiary of Fidelity National Information Services, Inc. stole 2.3 million consumer records with bank account and credit card information, which he later sold to a data broker.

This is not good news for an industry already tarnished in the media as being one comprised of the least trusted professionals. So what are you doing Mr. RealtorĀ® to prevent this from happening to you?

The 2008 Swanepoel TRENDS Report (www.ReTrends.com) recommends a seven point plan for agents and brokers to take to minimize possible lawsuits and even jail time. You have been warned.

Affidavit Of Identities

I am not a lawyer, I am a judgment referral expert (Judgment Broker). This article is my opinion about adding AKA (Also Known As) debtor names to civil judgments. This article is based on my experience in California. Laws vary in each state, and nothing in any of my articles should ever be considered legal advice.

Sometimes you sue an entity, and later they change their name. Sometimes you were in a hurry to sue an entity, and did not have time to discover all the names they are doing business as, or use. Sometimes debtors start a DBA (Doing Business As) businesses, or you later discover this after the judgment was awarded.

To add a new debtor entity to a judgment, usually requires a complex and expensive new lawsuit and court trial. This is because you must persuade a judge to add a debtor to a judgment, which requires personal service on all parties, money, luck, lots of evidence, and a full court trial.

However, many times all you need to do is add an AKA or a DBA to a judgment. Examples are when you discover the debtor has become married and now uses a different last name, or owns a non-corporate business, has other names they use, or they changed their name. In this case, the court procedure is much easier, you can simply do an Affidavit Of Identity.

An Affidavit Of Identity (AOI) does not add new debtors to a judgment, it is just a request to the court to add the AKAs and DBAs of a debtor. An AOI can also be obtained for a corporate business debtor that owns a DBA business name.

For example, if you sue Barry Clark, and you later find out he uses (and keeps a bank account) under the name of Barry William Davis Clark, or if Barry starts a non-corporate business as a DBA, an AOI can be used.

Note that an AOI cannot be used to add Barry’s spouse to a judgment, or his Class C corporation, or his business partner. To do that requires a new lawsuit to prove alter-ego, or veil-piercing, fraudulent transfers, etc. AOIs can only add other names that Barry uses to the judgment.

One can do an AOI with the court once, and the updated names will be on the judgment at the courthouse. For the life of the judgment, one must use the amended names. For example, if you filed a AOI to add the AKA of Barry David William Clark, all future writs, motions, and future paperwork must use the naming of Barry Clark AKA Barry David William Clark.

As an alternative, one can do an AOI for a particular bank levy. If Barry has a DBA business called Barry’s Bikes, and has a bank account under that fictitious name, one could make an affirmation with some evidence such as a certified copy of a Fictitious Business Name (FBN) certificate, and attach it to the writ for each levy attempt.

In California, to levy a bank account that is a DBA of the debtor, you must provide a certified copy of their FBN certificate. But what if it has expired? If your circumstances do not fit into one of the exceptions listed under CCP 700.160, then you need to obtain a court order to perform the levy. Getting a AOI done first solves this problem.

To get a court hearing for your AOI, you must prepare paperwork, file it with the court, and get the debtor served (sometimes by mail) notice of the court hearing.

At the hearing, you can point out that even if the debtor lets their FBN expire, their DBA or FBN should be added to the judgment because it’s still an alternate name of the debtor. Also, at a court hearing designed only to add an (AKA, FBN, or DBA) of a debtor, but not take their assets at that time, the debtor is less likely to appear in court, and you will win your AOI.

In most cases, AOI orders are “nun pro tunc orders”, meaning “now for then”, retroactively changing the judgment debtor name on the judgment as if that was the name they were sued as.

Some small claims court make you use their forms, in California it is form # SC-105. On this form you simply ask the court to add Barry William Davis Clark as a DBA of Barry Clark, so this judgment may be enforced. Then you provide the proof you have – for example, a check from the debtor, a document, a database search, etc.

If the court does not have their own form, see the text below. I am not a lawyer, and this text is just an example, and will need to be changed to work in your court. It is intended to be a starting reference to modify, for the court and state you are working in:

—————————

Your Name and Capacity (Original Judgment Creditor or Assignee Of Record, In Pro Per)

Your address, phone, fax, and email.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

Paul Plaintiff (Plaintiff)

vs

Dan Debtor (Defendant)

CASE NUMBER: case number

DECLARATION, AFFIDAVIT OF IDENTITY, Proposed ORDER, AND POINTS OF AUTHORITIES. (In California: CCP 680.135 and CCP 674.(c)(1))

COMES NOW Paul Plaintiff, in the within matter, and hereby provides the following Declaration in support of an AFFIDAVIT OF IDENTITY:

1) I am the (Original Judgment Creditor or Assignee of Record) in this matter. I am over 18 years of age. I have personal knowledge of the facts herein, except as to those facts stated to be known upon information and belief, and as to those facts, I believe them to be true. If called upon to testify, I could and would competently testify thereto.

2) On March 29, 2010, the court entered a judgment in this action in favor of PAUL PLAINTIFF and against DAN DEBTOR, in the amount of $15,000.00 principal, plus $150.00 in costs, together with interest at 10 percent per annum, is still outstanding.

3) In reviewing (In Camera) public records from sources supplied to the court (name your evidence sources attached) – it is clear that the debtor’s name DAN DEBTOR is also known as DANIAL DEBTOR and DANIAL ZE DEBTOR. Each alias has the same social security number and date of birth.

4) For this reason, in preparation for enforcement of this judgment by actions including filing Writs of Execution from this court, I wish to list on the judgment the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Signed this 7th day of July, 2010 at San Jose, California.

____________________________________________
(Original Judgment Creditor or Assignee Of Record, In Pro Per)

Order Approving Affidavit of Identity.

The affidavit of identity having been considered by the court and good cause appearing, IT IS ORDERED that the name(s) DANIAL DEBTOR and DANIAL ZE DEBTOR as aliases of DAN DEBTOR be added to the Judgment, Writ of Execution, Abstract of Judgment, and other documents necessary to enforce this judgment.

Dated and signed: ________________________

Judge or Commissioner of the Superior Court of California

MEMORANDUM OF POINTS AND AUTHORITIES

In California, CCP 680.135 and CCP 674(1).

Are You a Prime Candidate For Identity Theft?

When my husband and I were in the process of purchasing our home, we received a disturbing call from our mortgage broker. He called to tell us that our credit report had come back with some derogatory information. There was a string of unpaid credit card bills and other monies owed that turned up on our report. The mortgage broker suspected fraud, because he also saw on the same report we were paying our other accounts on time and in full. It turned out that a former neighbor had stolen my identity. By the time the police caught up with her she had racked up two thousand dollars in credit card charges, rented an apartment, had a phone installed and acquired utility services, all under my name. We were alleviated from the responsibility of the credit card charges after proving that I did not make them. It took three months to clear the mess up. Because we had a credit report done for our loan, we found out about the fraud and were able to stop things before they got out of hand. If we had not found out, we would have had a much bigger problem on our hands.

An Epidemic

Identity theft is a crime that has become rampant in the United States. Between November of 1999 and June of 2001, the FTC reported that 69,370 people were victims of identity fraud. The majority of the victims were between the ages of 20 and 49. The states with the highest number of incidences were California, new york, Texas and Florida, in that order. Identity theft can happen to anyone. Many law enforcement officials believe that due to the clandestine nature of this crime, most people are at risk of becoming a victim without even knowing it. There are, however, some precautions you can take to minimize your chances of being a target.

Your Social Security Number (SSN)

This is a key piece of information to identity theft. Don’t give out your social security number unless it is appropriate, like to an employer or for obtaining credit. Many companies ask for your social security number for identification purposes. That is not lawful or necessary. Refuse to give out your ssn in circumstances like this and offer other kinds of identifiers instead. Many of the cards you carry could have your social security number on them. Take a look at your student i.D., work i.D., military i.D. And your health insurance card. Try to have an arbitrary id number assigned to you in place of your SSN. Never have your social security number printed on your checks. And always be sure to shred any document you throw away that has your SSN on it — no matter what.

Know Your Rights

Before giving out any personal information, find out how it will be used and if it will be shared with others. Ask each company about its privacy policies and information practices. Be especially careful with your bank — find out the exact circumstances under which your bank would provide your account information to a third party. When filling out a loan or credit application, ask how the company disposes of them. Make sure they are shredding your financial statements rather than just throwing them in the trash.

Being Smart with Bank Cards

Don’t keep your ATM’s personal identification number in your wallet. When using an ATM machine, take note of those around you and be careful not to let anyone see you enter your password. And always be sure to take your receipt with you — don’t leave it by the ATM machine. Don’t use easy to discover passwords or pin numbers such as birthdays, telephone numbers or addresses. And carefully check bank statements as soon as they come in and dispute any unauthorized purchases immediately. Your liability increases if you don’t report debit card fraud immediately. Most people know that with credit card fraud, their liability is capped at $50. However, with debit cards, the amount of your liability depends on how quickly you report the fraud.

Spending Power

Never leave your purse or wallet in the car, even if it is hidden from sight. And keep a minimum number of credit cards in your wallet — and try to avoid carrying your checkbook with you unless you need it for a specific purchase that day. If your wallet should be lost or stolen, report it immediately to your bank and credit card companies. Protect your credit rating by calling the credit bureaus to request that a fraud alert be put on your file.

Protect Your Plastic

After you make a purchase, don’t put your credit card receipts in the same bag with the merchandise. If the bag is stolen the thief could use the receipt to purchase more merchandise somewhere else. Be very careful when ordering merchandise over the internet. Order from reputable companies that use secure servers. Always save your credit card receipts to match against your monthly statement so you can easily recognize any purchases you didn’t make — dispute any unauthorized purchases immediately. Pay attention to your billing cycles, and follow up with creditors if your bills do not arrive on time. And keep track of when your cards expire to make sure your new card arrives in the mail. Contact your credit card companies if you do not receive your new or renewed credit cards.

Important Documents

Keep items with personal information — social security numbers, vital records, financial statements — in a safe place, such as a locked box, safe, or safe deposit box. When you no longer need the information, shred it. Do the same to pre-approved credit card offers rather then tossing them in the trash for someone to retrieve.

Safe Mailing

When mailing applications or paperwork with personal information put them in a u.S. Postal box or leave then with a postal carrier. Don’t drop paid bills in a public mailbox — take them to the post office to be mailed. Install a locked mailbox at your office or home to keep people from snatching your mail. Never write your social security number, account number or any other personal information on a check or outside of an envelope. And be sure to contact the post office immediately if your mail suddenly stops coming.

Keep an Eye Out

Order a copy of your credit report from the three major credit reporting agencies every year. Make sure the information in them is accurate and includes only those activities you’ve authorized:

Equifax 1-800-685-1111

Experian 1-888-397-3742

Trans union 1-800-888-4213

And don’t toss all your monthly bills right away — review your phone bills and cellular phone bills each moth for any unauthorized use. You will want to keep statements for one year as a record of activity. And compare your atm receipts and cashed checks with your periodic bank statements to check for unauthorized transfers or charges. If you do find fraudulent activity on any accounts, go to the ftc’s web site (listed at the end of this article) and get a copy of their id theft affidavit to report any unauthorized accounts that are opened in your name.

When the Worst Happens

Your diligence in these matters will help to diminish the amount of liability and damage you will incur should you become a victim of identity theft. If you do find that you have become a victim of identity theft, please visit the websites listed below for help. Until there are better safeguards in place to keep personal information out of the hands of thieves, we all need to be on our guard. Remember, it can happen to anyone.