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Collection Actions: 11.6.6 State Law Claims

Criminal justice debt practices also may give rise to state law claims, including various tort claims.579 For instance, advocates may consider bringing an abuse of process claim.580 At least two courts have allowed an abuse of process claim against a private probation company to proceed.

Collection Actions: 11.6.7.1 Sovereign and Qualified Immunity

The Eleventh Amendment protects states from claims for monetary damages in federal court590 and prevents Congress from subjecting state governments to suit in state court without their consent.591

However, the Eleventh Amendment does not foreclose the following avenues for litigation:

Collection Actions: 11.6.7.2.1 Overview

When an act by a state or local official is covered by judicial immunity, the official is completely immune from suit for damages, no matter how egregious the misconduct. Judicial immunity also limits Civil Rights Act section 1983 claims against judges for injunctive relief arising out of actions taken in their judicial capacity.598

Collection Actions: 11.6.7.2.2 Specific immunity considerations for criminal justice debt litigation

To avoid running into judicial immunity problems in criminal justice debt litigation, advocates should identify court practices that are the result of policies or widespread custom and not simply the result of decisions by individual judges in individual cases. Suits based on these policies and practices are unlikely to chill judicial actors from exercising their discretion in particular cases.

Collection Actions: 11.6.7.3.1 Younger abstention

Younger abstention limits federal courts from intervening in ongoing state court proceedings.621 Younger abstention clearly applies to ongoing state criminal prosecutions.622 It also applies to certain civil enforcement proceedings that are akin to criminal prosecution in important respects and pending civil proceedings involving certain orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.62

Collection Actions: 11.6.7.3.3 Rooker-Feldman

The Rooker-Feldman doctrine, which is a matter of jurisdiction, bars federal district courts from modifying or reversing state court judgments.633 A federal court lacks jurisdiction only when the losing party in a state court action seeks “what in substance would be appellate review of the state judgment”634 or when the plaintiff’s injury was caused by the state court’s ruling and the plaintiff seeks relief that would undo that judgment.635

Collection Actions: 11.7.3.1 The Wrong Person

An applicant’s tenant screening report may include criminal records belonging to a different person, referred to as a “mismatched report.” This type of error often results from background screeners’ use of unsophisticated or over-inclusive criteria to match applicants with their criminal record information, along with their failure to use other available information to verify that the criminal record in fact belongs to the rental applicant.

Collection Actions: 11.7.3.2 Incomplete or Misleading Status of Criminal Proceedings

Reporting on the accurate status of a criminal proceeding requires regularly checking the original source data at courthouses. Tenant screening companies typically do not search courthouse records each time they conduct a background check, and instead rely on databases of this information that may not be regularly updated. Thus, a tenant screening company may report an arrest or a criminal charge, but not a subsequent dismissal or acquittal, for example.644

Collection Actions: 11.7.3.3 Misclassified Offenses

Screening reports commonly miscategorize offenses, such as categorizing a misdemeanor as a felony, or a traffic ticket as a misdemeanor. This occurs because, after retrieving criminal record information, the tenant screening company must then sort the records into categories. At this point, screeners sometimes inaccurately categorize the records, often due to a misunderstanding of how a particular state reports and classifies criminal record information.645

Collection Actions: 11.7.3.4 Duplicate Criminal Records

A tenant screening report may list a single arrest or incident multiple times, wrongly suggesting that the applicant has committed multiple offenses. For example, when a tenant screening company relies on multiple databases of criminal record information, the company may treat the same offense listed in each database as a separate offense. Similarly, the tenant screening company may report various stages of the same offense as separate offenses.646

Collection Actions: 11.7.3.5 Expunged Records

Nearly all states provide remedies to limit the dissemination of criminal record information. They do so under a host of names, including “expungement,” “sealing,” “clearing,” “set-aside,” and “pardon.” In this section, the term “expungement” is meant to encompass all such remedies. Unfortunately, tenant screening companies commonly report expunged records. The reporting of expunged records often occurs due to tenant screeners’ and records vendors’ failure to regularly update their databases to remove these records.647

Collection Actions: 11.7.3.6 Obsolete Criminal Records

Background screeners can only report non-conviction records for seven years. Non-conviction records include arrests, criminal complaints, warrants, indictments, parole, probation, and other various possible dispositions besides convictions.648 The seven-year period for arrest records starts from the day of arrest. Arrest warrants that are still outstanding can be reported beyond seven years, however.

Collection Actions: 11.7.4.1 Obtain the Consumer’s Tenant Screening File and the Background Screening Report Sent to the Landlord

If a landlord takes an adverse action based on information contained in a tenant screening report (such as denying the application), the FCRA requires the landlord to provide the rental applicant with the name, address, and telephone number of the tenant screening company that furnished the report. There is no FCRA private right of action if the landlord fails to comply, but a follow-up request informing the landlord of their legal obligation to produce this information may be successful, even if the landlord does not provide it initially.

Collection Actions: 11.7.4.2 Compare the Background Screening Report with Courthouse Records

The criminal record information in the tenant screening report (or consumer’s file) should be compared with records from the relevant court. It is best practice to submit a documented formal records request through whatever process the particular court uses and to obtain a formal response—certified, if possible. The court records should include the proper classification of a conviction (e.g., a misdemeanor or felony) as well as disposition information (e.g., that a charge was dropped or resulted in an acquittal).

Collection Actions: 11.7.4.3 Dispute the Erroneous, Incomplete, or Obsolete Information

The client should dispute any erroneous or otherwise improper information in their tenant screening report. Although not required by statute, it is best practice for the client to request the reinvestigation in writing rather than by telephone or via an online dispute. If the client has already disputed the information by telephone, it is advisable to follow up with a written confirmation.

The dispute letter should include the client’s:

Collection Actions: 11.7.4.5 If No Response, Submit a Second Dispute

If the consumer receives no response from the tenant screening company as to the dispute within thirty-five days, the consumer should resend the dispute letter—ideally with some additional information to prevent the dispute from being treated as “frivolous”—and indicate that it is a repeat letter. This second letter will strengthen any subsequent legal action against the tenant screening company.

Collection Actions: 11.7.5 FCRA Violations of Reinvestigation Requirements

Section 1681i of the FCRA requires that tenant screening companies conduct “reasonable” investigations of consumer disputes, and that they have and follow reasonable procedures to conduct such investigations.670 Many courts simply rely on the statutory text of section 1681i when evaluating a reinvestigation claim. Some courts, however, have set forth a test for a reinvestigation claim.671

Collection Actions: 11.7.6 FCRA Violations for Failure to Follow Reasonable Procedures to Assure Maximum Possible Accuracy

Section 1681e(b) of the FCRA requires that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”674 This requirement for maximum possible accuracy also applies to tenant screening companies that are “resellers”—that is, that do not retain any consumer information but rely each time they run a report on information retrieved from third-party data vendors.

Collection Actions: 11.7.7 FCRA Violations for Reporting Expunged Records

Claims for reporting an expunged record should be pleaded under 15 U.S.C. § 1681e(b)—i.e., failure to follow reasonable procedures to assure maximum possible accuracy. Generally, do not plead it as a section 1681c (obsolescence) claim, which prohibits the reporting of “adverse record[s] older than seven years” other than records of conviction. An exception is if the record at issue is a non-conviction record (e.g., an arrest) that has both been expunged and is older than seven years. In that instance, one can plead both a section1681e(b) and a section 1681c claim.