Despite that super-secure EMV chip making the wait at the checkout line even longer, credit card fraud is still exceedingly common. In the first half of 2017 alone, the Identity Theft Resource Center and CyberScout report that there were 791 reported data breaches in the United States. Likewise, the Federal Trade Commission's online database of consumer complaints racked up 1.3 million fraud-related submissions between 2012 and 2016. When you find yourself among those numbers, you have the option of making the justice system work for you.
Suing for credit card fraud takes some serious prep on your part, though the process varies between criminal and civil cases.
Starting the Process
If you're the victim of credit card fraud in any of its forms, your initial checklist should look something like this:
- Notify your credit card company.
- Request a 90-day fraud alert from your credit reporting agencies.
- Submit a report to the Federal Trade Commission.
- Notify the police.
While your credit card company will most likely absolve you of the fraudulent charges from the get-go, and getting the police involved won't likely set the criminal world on fire, reporting the crime to the police is often the first step in suing for credit card fraud. It ensures that you'll have a formal police record of the event – a document that could be vital in court and one that gets the criminal litigation process rolling.
Pressing Criminal Charges
Credit card fraud is a crime – a felony, if property of significant value was obtained – that is often perpetrated by individuals who physically steal cards, known as "card present crimes," or, more commonly, gain access to cards by other means, known as "card not present" crimes. If your credit card issuer has defied the terms of your agreement, financial regulations or required disclosures, it, too, may be guilty of fraud. Most credit card fraud cases are of the criminal variety.
In criminal cases, those police reports you filed come in to play, as the prosecutor's office reviews the reports to determine if the evidence warrants the filing of criminal charges. At this point, local law enforcement collects evidence to determine if there is probable cause to issue an arrest warrant for the suspect, while the prosecutor's office reviews the police reports to determine if said evidence warrants filing charges.
You can't prosecute criminal charges yourself, but the more evidence and cooperation you offer, the more likely the case will go to trial. The process varies a bit per state; some states require prosecutors to convince a judge to proceed with a trial, while other states require a grand jury to indict the suspect.
Filing a Civil Suit
Cases of identity theft – which can include the appropriation of your name or likeness; the invasion of your privacy; fraudulent misrepresentation; or publication of private facts – may be tried in civil, rather than in criminal court. To file a civil lawsuit, start by filing a complaint with the court, including information such as the damages you've suffered and how the defendant was responsible for those damages. Typically, you'll file a complaint in small claims court if you're suing for around $10,000 or less, or in a higher court if the amount is more than the local small claims court limit. The complaint must include:
- A caption, or heading.
- A short statement of claims that illustrates why you are entitled to relief in the form of numbered paragraphs each containing a single claim.
- A demand for judgment detailing the relief you're requesting, usually an estimate of damages or an exact dollar amount.
- Your signature, address and phone number.
You also have the option to attach exhibits to your complaint. You'll pay a court fee to file this complaint, and the court will generate a summons. You'll need to serve the defendant with a copy of the summons and the complaint. How this is done depends on your state's procedural rules, but it may be through the sheriff or through a private process server.
In larger cases that aren't in small claims, the first phase after the defendant files an answer is the discover phase, in which the plaintiff and defendant ask each other for documents and information. They can also conduct depositions, where party and non-party witnesses are questioned under oath while being transcribed.
You may come to an amicable settlement with the defendant before going before a judge, but if not, the case will proceed to trial. If you requested a jury in your complaint, or if the defendant requested a jury in his answer, the trial will be a jury trial. Otherwise, the trial will be before the judge only (a bench trial).
Consulting Legal Counsel
The swiftest and safest way to bring a lawsuit when you're a victim of credit card fraud is to consult an attorney. Some attorneys specialize in credit card fraud. If you've been the victim of unauthorized charges due to fraudulent accounts opened in your name or activity resulting from large-scale data breaches, a class-action lawsuit may be an option. Usually spearheaded by consumer rights or class-action attorneys, this type of lawsuit involves a large number of people who have suffered the same injuries who sue as a class to recover damages.
In any case, your lawyer will help determine whom you may have a claim against – this could include a combination of the perpetrator and banks, credit bureaus or businesses who acted negligently with your information – and handle the necessary paperwork required for bringing a lawsuit.