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Is employee responsible for boss’s default?

Summary

If a small business owner defaults on debt on a company credit card she issued to a former employee, is the worker responsible for the debt?

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QuestionDear Your Business Credit,
A previous employer gave company credit cards to her drivers to use for fuel and expenses. She gave me one of them. This card was used for fuel and equipment repairs, and she defaulted on the card.

A few years later I was contacted by a collection agency about the account. They wanted me to pay it. I explained to them that I was not a responsible party for a company that I worked for and what that card was for.

They told me to contact the card issuer. I was informed by them that there is a user agreement that holds me responsible once I use the card. I never received nor was I ever made aware of such an agreement. I then asked how they got my information. The former employer evidently gave them my personal information — something else I was unaware of.

I subpoenaed them to send me the information that was given to obtain the card and their policy concerning the user agreement, as well as when the account went into default and the agency to which they turned it over for collections. They called me and said they needed time to collect the information and would send it out on 4/21/14. On the 22nd they called and told me they had to send my former employer a 14-day notice and cited privacy issues. They violated my privacy by turning this over to collections and to the credit bureaus to start with.

Can I sue them for violating my privacy? I do have a letter from them removing me from the account and the credit bureau information but they are refusing to comply with a subpoena because of her privacy. I asked them if they ever once mailed me their policy or the card itself and they replied no. How can they do this without verifying that I even knew about any of it to start with? — Lisa

AnswerDear Lisa,
Talk with an attorney. Each of three attorneys I consulted had a different take on your predicament, which tells me there isn’t a cut-and-dried answer.

“This is a particularly complicated situation,” says attorney Michael Jeffrey Gunderson at The Gunderson Law Firm in Chicago.

If you were an authorized user on the account, you are not responsible for the debt, according to Robert F. Brennan, an attorney in La Crescenta, Calif., who specializes in wrongful credit damage cases and runs the site SoCalCreditDamage.com.  However, creditors will often contact authorized users when the primary cardholder doesn’t pay, in hopes that the authorized user will. Brennan says he has successfully litigated a similar issue against your credit card issuer, which you named for me, and won.

However, Leslie Tayne, an attorney in Melville, N.Y., said it isn’t uncommon for employees to find out they are personally responsible for a card their company has issued. She recommends trying to get the information on the application, which still may be possible if the matter isn’t very old, to make sure you know where you stand.

If you did actually sign something agreeing to responsibility for the debt, Tayne’s conclusion is that you would not have a strong case against a debt collector. “Suing for violations of privacy is unlikely going to be successful, because they have the right to collect debt owed and if you truly had your name on the application, then you are responsible for that debt,” says Tayne.

Let’s say you didn’t sign anything that gives you shared responsibility for the debt. In that case, you may have some recourse: “You can file with the three bureaus to dispute the debt as not yours, which will proceed with their launching an investigation and requiring the creditor to confirm within a certain amount of time,” Tayne says. “If they cannot prove this debt is yours, the debt will be removed from your credit.”

If you would like to take legal action against someone, Gunderson recommends following procedures afforded to you in the Fair Credit Reporting Act. That law allows for debt verification. That means if the debt collector can’t satisfactorily verify the debt and show that you actively signed on to the account to be liable, he says, you “may likely have a cause of action.” Because debt collectors often have poor records, they are unlikely to have all of the agreements at their disposal, he says. You might be able to take action against your employer if the information was improperly supplied to the card issuer, he adds.

Will suing pay off? Here is where a lawyer who is privy to all of the details can give you valuable insight. If the issuer has already taken you off the account and the debt is no longer appearing on your credit report, he says, “I’m not sure what damages would be, and thus I’m not sure attorneys would be interested in the case on a contingency basis.”

Keep an eye on your credit reports for any signs the matter has resurfaced, he advises. “If it shows up again, then contact an attorney who handles Fair Credit Reporting Act cases.”

How can employees avoid a similar situation if a boss asks them to use a company card? “You should opt for an authorized user card or choose to use your own card for later reimbursement so you maintain more control,” says Tayne.

Since this column is aimed at small business owners, I’d like to point out that entrepreneurs should be very careful about any information they release to credit card issuers, debt collectors or any other parties about your employees. When in doubt about whether you can legally share it, make a quick call to your attorney. It beats spending time fighting a legal claim by an employee — or worrying that one might surface.

See related:Should I give more employees company cards?, Freezing business card accounts after the company fails

 

 

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