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.
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.
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.
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).
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:
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.
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.
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.
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
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.
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.
The FCRA has two provisions restricting obsolete information.
The FCRA requires tenant screening companies “to clearly and accurately disclose all information in the consumer’s file” upon request, including the “sources of [this] information.”685 Following the Supreme Court’s decision in TransUnion L.L.C. v. Ramirez,686 however, a denial of information alone may not be sufficient for standing.
For most FCRA requirements, a tenant screening company that negligently fails to comply with the requirement is liable to the consumer for actual damages sustained because of the failure, as well as court costs and reasonable attorney fees in the case of a successful action.688 For willful violations, a consumer is entitled to actual damages or statutory damages ranging from $100 to $1000 and such punitive damages as the court may allow—plus court costs and reasonable attorney fees.
In evaluating whether to bring an FCRA claim, it is important to consider the limits on FCRA claim and if claims under alternative laws would be superior—or should be pleaded in the same case. In addition, consider the following factors:
This chapter examines laws that protect debtors’ essential income—including wages, benefits, and retirement or pension payments—from creditors. It includes a detailed analysis of the protections afforded these exempt sources of income when they are deposited into bank accounts, as well as protections for bank accounts in general.
State exemptions seek to balance the need for security in old age against the possible abuse of retirement accounts to shelter unreasonable amounts from creditors. Some exemption statutes protect retirement funds, or particular types of retirement funds, so far as they are “reasonably necessary” for the retiree’s needs,555 while others set a dollar cap on the exemption.556
States generally make postjudgment discovery proceedings available to creditors to force judgment debtors to answer questions about their assets. The creditor may have the right to issue interrogatories to the debtor, summon the debtor to a debtor’s examination to answer questions in person, and issue a subpoena duces tecum requiring the debtor to produce assets or records.
In addition to the criteria set forth above, the Code offers some guidance as to what the plan may do but establishes few limitations.
When legal, evidence of collection abuse and of the client’s credibility might be obtained by the consumer recording a collection telephone call. This option is only available in certain states, because in other states recording a phone call without consent is a criminal offense. There are also legal ethical considerations if an attorney advises the client to record a telephone call.
In essence, a voluntary1 bankruptcy case is a legal proceeding, brought by a debtor, that seeks relief specifically provided for by a federal statute, the Bankruptcy Code.2 The bankruptcy case must be brought in the United States District Court, which has jurisdiction over all bankruptcy cases, but bankruptcy cases are normally automatically referred to the bankruptcy court for the district, a unit of the district court.3 Therefore, the actual bankruptcy petit
For individuals, there are two types of relief that are usually used. The first is liquidation under chapter 7 of the Code. In a liquidation case, sometimes referred to as a straight bankruptcy, any substantial nonexempt4 assets of the debtor are converted to cash and distributed to creditors according to certain statutory rules. The individual debtor ordinarily receives a discharge, which absolves them from any responsibility to pay most debts and also provides various other protections.5
The purposes of bankruptcy are usually described as twofold: (1) a fresh start for the debtor and (2) equity among creditors. In most cases involving consumer debtors, the first is by far the more significant, because there are typically few assets to be distributed, equitably or otherwise, to the creditors involved.
Under the 1984 amendments to the Bankruptcy Reform Act, the bankruptcy court is a “unit” of the federal district court in each judicial district.14 Its powers, however, are greatly diminished compared to those that were originally contemplated by the drafters of the 1978 Act.
There are several possible avenues for appeals from the bankruptcy court. The path to be taken depends upon the wishes of the parties, the practice adopted by the federal district court and judicial circuit where the bankruptcy court is located and, in some cases, the consent of an appellate court.