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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: 11.6.7.3.2 Heck v. Humphrey
The Supreme Court decision of Heck v.
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: 11.7.2 Major Tenant Screening Consumer Reporting Agencies (CRAs)
The Consumer Financial Protection Bureau (CFPB) releases an annual (non-exhaustive) list of CRAs subject to the FCRA.642 Some of the major tenant screening CRAs are:
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: 11.7.3.7 Nuances About Reporting Criminal Convictions
The FCRA allows background screeners to report conviction records indefinitely. However, it is important to understanding the following nuances:649
Collection Actions: 11.7.3.8 Wrongly Dated Criminal Records
Even when a criminal record is not obsolete under the FCRA or state standards, it is still erroneous to report a criminal record as being more recent than it is.
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: 11.7.4.4 Screening Company Responsibilities After Receiving a Dispute
Once a tenant screening company receives a dispute, it can delete or correct the disputed information; doing so allows it to avoid any duty to investigate the underlying issue. Otherwise, either the tenant screening company or data vendor must conduct a “reasonable reinvestigation” to determine the accuracy or completeness of its reporting.
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: 11.7.4.6 If Appropriate, File a Complaint in Court
The FCRA provides a private right of action for various violations of its requirements; these claims are discussed in more detail in §§ 11.7.5–11.7.9, infra. The proper defendant for these claims is generally 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.