Money & Debt

Debt caused by identity theft Wrongfully obtaining and using another person’s personal data. can appear in different kinds of court cases.

Identity theft may be involved in:

• A collection lawsuit against the victim of identity theft,
• A collection lawsuit that names the wrong person, or
• Another type of court case.

Start by reviewing the court papers to understand what type of case was filed.

Look at who is listed as the plaintiff. A person or party that starts a lawsuit The plaintiff is the business or person trying to collect the debt. In many cases, the plaintiff is a debt collector. A person or company that regularly collects debts owed to another person

Next, look closely at who is listed as a defendant. The person or organization being sued in a lawsuit A named defendant may be:

• The victim of identity theft, or
• A person whose name was used by mistake on the court papers.

Use the steps on this page if the court papers:

• List a business or person trying to collect debt as the plaintiff, and
• List the victim of identity theft as the defendant.

If the court papers were not filed by a business or person trying to collect debt, or name a different person as the defendant, learn what to do in Respond to court papers about debt that is not yours.

Responding to a collection lawsuit about debt from identity theft requires completing two affidavits. Only one affidavit will be filed in the court case.

First, complete the Illinois Attorney General Identity Theft Affidavit. This affidavit provides personal details about the victim of identity theft and explains what happened. Answer A written statement used to respond to the complaint or petition in a lawsuit all questions fully and carefully. Some creditors will require a notarized signature on the Illinois Attorney General Identity Theft Affidavit.

The Illinois Attorney General Identity Theft Affidavit must not be filed in the lawsuit because it contains sensitive personal information.

Next, complete the Illinois Supreme Court Identity Theft Affidavit:

• This affidavit is a form approved by the Illinois Supreme Court,
• It must be filed in the collection lawsuit, and
• It tells the court and the plaintiff A person or party that starts a lawsuit that the debt was caused by identity theft.

The Illinois Supreme Court Identity Theft Affidavit does not need to be notarized.

Both completed affidavits must be served on the plaintiff A person or party that starts a lawsuit or the plaintiff’s lawyer. Someone who represents clients in courts or who gives legal advice Each affidavit provides different information:

• The Illinois Attorney General Identity Theft Affidavit gives detailed information about the identity theft so the plaintiff can review and investigate the issue, and
• The Illinois Supreme Court Identity Theft Affidavit gives formal notice that identity theft is being raised as a defense in the lawsuit.

Before serving the affidavits, make copies. Copies may be:

• Mailed to the plaintiff or the plaintiff’s lawyer,
• Hand-delivered to the plaintiff or the plaintiff’s lawyer, or
• Served by another method allowed by court rules.

Keep any proof of service, A form that explains how court papers were given to someone in a court case including a certified mail A document delivery service such as the US Postal Service that sends a party a receipt as proof that the documents were mailed and delivered receipt, delivery confirmation, or written acknowledgment that the affidavits were received.

Filing the completed Illinois Supreme Court Identity Theft Affidavit in the court case is an important part of making legal arguments about identity theft. Do not file the Illinois Attorney General Identity Theft Affidavit, which contains sensitive personal information.

To protect additional legal arguments in case the plaintiff A person or party that starts a lawsuit disagrees with the affidavit, also file:

• A motion to dismiss under section 2-619 of the Illinois Code of Civil Procedure, or
• An affirmative defense When a defendant asserts new facts in a case that are different from the facts given by the plaintiff. If proven to be true, these are reasons why the plaintiff should not win. of identity theft along with an answer.

For a motion to dismiss:

• Use ILAO’s Motion Easy Form to prepare the motion or download a blank form from the Illinois Supreme Court,
• Choose a title that explains what the judge is being asked to do, like “Motion to dismiss (2-619) due to identity theft,”
• Explain in the main part of the motion that the debt was caused by identity theft, and
• Point out that the completed Illinois Supreme Court Identity Theft Affidavit is also being filed.

For an affirmative defense and an answer:

• Use ILAO’s Respond to a lawsuit Easy Form to prepare an answer and affirmative defenses or download blank Answer or Response and Affirmative Defenses forms from the Illinois Supreme Court,
• Include an affirmative defense explaining that the debt resulted from identity theft, and
• Point out that the completed Illinois Supreme Court Identity Theft Affidavit is also being filed.

E-file the following papers as soon as possible:

• The completed Illinois Supreme Court Identity Theft Affidavit (do not file the Illinois Attorney General Identity Theft Affidavit), and
• The motion to dismiss, or the answer and affirmative defenses.

Help with filing is available from Illinois Court Help and the clerk’s office in the court where the lawsuit was filed. There is no fee to file the completed Illinois Supreme Court Identity Theft Affidavit. To file the motion to dismiss or answer and affirmative defenses, it may be necessary to:

• File an appearance, and
• Pay filing fees or ask for a fee waiver.

Copies of all filed documents must be delivered to the plaintiff’s lawyer Someone who represents clients in courts or who gives legal advice using the method listed in the proof of service A form that explains how court papers were given to someone in a court case on the forms.

For the motion to dismiss only: After a motion is filed, a hearing When the parties in a case present their sides of a case to a judge or other officer date is required for a judge to decide the motion. Some counties provide a hearing date during e-filing. Short for "electronic filing." You file court papers using a computer instead of handing them to the clerk in person. This is required in Illinois as of 1/1/18. Other counties provide the date after filing. Once a court date is set, complete a Notice of Court Date for Motion and e-file it.

After the two completed affidavits are served, the plaintiff A person or party that starts a lawsuit has 90 days to respond.

There are two possible outcomes at this stage:

• The plaintiff may file an affidavit A notarized written statement signed by a person under oath in the court case explaining why they believe the identity theft Wrongfully obtaining and using another person’s personal data. victim is responsible for the debt, or
• The case may end if the plaintiff does not file an affidavit contesting the identity theft claim within 90 days.

If the plaintiff files an affidavit, the case is not over yet:

• Ask the judge for a hearing When the parties in a case present their sides of a case to a judge or other officer to present evidence Anything used to show that something is true about why the plaintiff’s affidavit is wrong, or
• Use Get Legal Help to find a lawyer Someone who represents clients in courts or who gives legal advice who can help with responding.

If the case ends, get a copy of the judge’s order dismissing the case. Keep this in case it is needed for future disputes.