N.Y.
General Business Law Section 604-A
Prohibited practices
1.
Upon receipt from a debtor of the following, a principal creditor shall cease collection activities until completion of the review provided in subdivision five of this section:(a)
a copy of a valid police report filed by the debtor alleging that the debtor is the victim of an identity theft crime, including, but not limited to, a violation of section 190.78, 190.79, 190.80, 190.81, 190.82 or 190.83 of the penal law, for the specific debt being collected by the principal creditor; or(b)
a copy of a completed and signed federal trade commission identity theft victim’s report filed by the debtor alleging that the debtor is the victim of identity theft; and(c)
the debtor’s written statement that the debtor claims to be the victim of identity theft with respect to the specific debt being collected by the principal creditor.2.
The written statement described in paragraph (c) of subdivision one of this section shall consist of either of the following:(a)
a signed federal trade commission ID theft victim’s affidavit; or(b)
a written statement that certifies that the representations are true, correct, and contain no material omissions of fact to the best knowledge and belief of the person submitting the certification. A person submitting such certification who declares as true any material matter pursuant to this subdivision that he or she knows to be false is guilty of a misdemeanor. Such statement shall contain or be accompanied by, the following, to the extent that such items are relevant to the debtor’s allegation of identity theft with respect to the debt in question:(i)
a statement that the debtor is a victim of identity theft;(ii)
a copy of the debtor’s driver’s license or identification card, as issued by the state;(iii)
any other identification document that supports the statement of identity theft;(iv)
specific facts supporting the claim of identity theft, if available;(v)
any explanation showing that the debtor did not incur the debt;(vi)
any available correspondence disputing the debt after transaction information has been provided to the debtor;(vii)
documentation of the residence of the debtor at the time of the alleged debt. This may include copies of bills and statements, such as utility bills, tax statements, or other statements from businesses sent to the debtor, showing that the debtor lived at another residence at the time the debt was incurred;(viii)
a telephone number for contacting the debtor concerning any additional information or questions, or direction that further communications to the debtor be in writing only, with the mailing address specified in the statement;(ix)
to the extent the debtor has information concerning who may have incurred the debt, the identification of any person whom the debtor believes is responsible;(x)
an express statement that the debtor did not authorize the use of the debtor’s name or personal information for incurring the debt;(xi)
an express statement that the debtor was coerced to authorize the use of the debtor’s name or personal information for incurring the debt; or(xii)
criminal or family court documents that support the statement of identity theft.3.
The certification required pursuant to subdivision two of this section shall be sufficient if it is in substantially the following form: “I certify the representations made are true, correct, and contain no material omissions of fact. _______________________ ________________________” (Date and Place) (Signature) 4. If a debtor notifies a principal creditor orally that he or she is a victim of identity theft, the principal creditor shall notify the debtor, orally or in writing, that the debtor’s claim must be in writing. If a debtor notifies a principal creditor in writing that he or she is a victim of identity theft, but omits information required pursuant to subdivision one of this section and the principal creditor does not cease collection activities, the principal creditor shall provide written notice to the debtor of the additional information that is required.5.
Upon receipt of the complete statement and information described in subdivision one of this section, the principal creditor shall review and consider all of the information provided by the debtor and other information relevant to the review. The principal creditor may recommence debt collection activities only upon making a good faith determination based on all of the information provided by the debtor and other information available to the principal creditor in its file or from the creditor that the information does not establish that the debtor is not responsible for the specific debt in question. The principal creditor’s determination shall be made in a manner consistent with the provisions of 15 U.S.C.1692f(1). The debt collector shall notify the debtor in writing of that determination and the basis for that determination before proceeding with any further collection activities.6.
No inference or presumption that the debt is valid or invalid, or that the debtor is liable or not liable for the debt, shall arise if the principal creditor decides after the review described in subdivision five of this section to cease or recommence the debt collection activities. The exercise or non-exercise of rights under this section is not a waiver of any other right or defense of the debtor or debt collector.7.
A principal creditor who ceases collection activities under this section and does not recommence those collection activities, shall within five business days of the cessation of collection activities, do the following:(a)
if the principal creditor has furnished adverse information to a consumer credit reporting agency, notify the agency to delete that information; and(b)
notify the creditor that debt collection activities have been terminated based upon the debtor’s claim of identity theft.
Source:
Section 604-A — Prohibited practices, https://www.nysenate.gov/legislation/laws/GBS/604-A (updated Jan. 6, 2023; accessed Oct. 26, 2024).
