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Judiciary Work Session 6 8 2010
 

Judiciary Work Session 6 8 2010

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Presentation on public records used for tenant-screening purposes; given to the Judiciary Committee of the Washington House of Representatives in June 2010

Presentation on public records used for tenant-screening purposes; given to the Judiciary Committee of the Washington House of Representatives in June 2010

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  • LL appears to have obtained writ of restitution by default
  • Anyone’s guess what happened here?
  • Post-foreclosure eviction. No judgment. Resulted in denial of application to a low-income housing facility. The
  • Does not require disclosure of the reason for denial—does not even require written notice of denial in all circumstances and often written notice is not given
  • These are just examples of cases I’ve seen
  • Unrealistic to seal pro se

Judiciary Work Session 6 8 2010 Judiciary Work Session 6 8 2010 Presentation Transcript

  • The SCOMIS Blacklist: How the commercial use of unlawful detainer records both perpetuates homelessness and undermines the integrity of Washington courts
    • Eric Dunn, Staff Attorney
    • Northwest Justice Project
    • 401 Second Ave. S., Ste. 407
    • Seattle, Washington 98104
    • Tel. (206) 464-1519, ext. 234
    • [email_address]
  • Rental Application Process
    • Prospective tenant (applicant) submits written application & pays screening fee
    • Landlord obtains tenant-screening report
      • Some will check public records directly
    • Screening service compiles, transmits report
      • Credit, criminal history, civil litigation records
      • Score or recommendation
    • Landlord makes decision, informs applicant
      • May or may not give reason for rejection
  • Tenant-Screening Reports
    • Most common: “Credit, Criminal & Eviction”
      • “ Credit report” (Equifax, Experian, TransUnion)
      • Criminal background check
        • Public records search
        • Private vendor (ChoicePoint, USIS, etc.)
      • Civil litigation records (SCOMIS search)
        • Unlawful detainers, other LL-T, DVPO, etc.
    • Investigative reports
      • Screening service also interviews past landlords
    • Scores & recommendations
      • In addition to or in lieu of raw data
  • Civil Litigation Records: SCOMIS
    • Superior Court Mngmt. Information System
      • Docket management system
        • Function is management of court dockets
        • Not designed as tenant-screening implement
      • Launched in 1977, statewide since 1985
      • Data entered by court clerk upon case filing
    • Contains party names, filing date, case type
        • Eviction appears as “unlawful detainer”
  • What a SCOMIS name search shows:
    • Notable omissions:
        • Case details, outcome
        • Access to actual case documents
        • Docket entries (after 18 months)
  • SCOMIS: Docket Entries
    • Pending & recently resolved cases only
      • Docket entries archived after 18 months
      • Often give some indication as to status and outcome of the lawsuit
      • Can be cryptic, incomplete, misleading
  • SCOMIS Docket Entries
  •  
  • “Eviction Report”
  • Outcome schmoutcome
    • “ It is the policy of 99 percent of our [customers] to flat out reject anybody with a landlord-tenant record, no matter what the reason is and no matter what the outcome is, because if their dispute has escalated to going to court, an owner will view them as a pain.”
      • --Jack Harrington, founder of On-Site Manger, Inc., 2006*
    • Residential landlords in Washington commonly refuse to rent to any applicant with a record of being sued for unlawful detainer (as revealed by SCOMIS)
    • *Quote is from Teri Karush Rogers, “Only the Strongest Survive,” N.Y. Times ( Nov. 26, 2006)
  •  
  • I feel like I lose when I win Actually not true; FCRA may not prohibit these reports but does not guarantee a right to make them
  • RCW 19.182.110
    • If a person takes an adverse action with respect to a consumer that is based, in whole or in part, on information contained in a consumer report, the person shall:
    •     (1) Provide written notice of the adverse action to the consumer, except verbal notice may be given by a person in an adverse action involving a business regulated by the Washington utilities and transportation commission or involving an application for the rental or leasing of residential real estate if such verbal notice does not impair a consumer's ability to obtain a credit report without charge under RCW 19.182.100(2); and
    •     (2) Provide the consumer with the name, address, and telephone number of the consumer reporting agency that furnished the report to the person.
  • Adverse Action Notices Adverse Action Notice – form by Moco, Inc.
  • Scores & Recommendations
    • Landlord supplies criteria to screener
      • UD filings usually a basis for denial
      • Other civil litigation may be
        • Collections suits by landlords
        • Tenant-initiated suits (security deposits, habitability)
    • Screener applies criteria
      • Screener issues score or recommendation
    • Result: criteria applied rigidly
      • Commonly results in unfair rejections
      • Can have discriminatory effects
  • On-Site Manager, Inc. sample report Moco, Inc. actual report
  • D.I.Y. Tenant-Screening
  • “ The Unhouseables”
    • “ [T]he increasingly popular use of tenant screening reports has resulted in a new class of people who are unable to access rental housing because of past credit problems, evictions, poor rental histories or criminal backgrounds.”
    • HousingLink, “Tenant screening agencies in the Twin Cities: An overview of tenant screening practices and their impact on renters,” Summer 2004
  • Chilling Effect
    • That residential landlords routinely deny housing to applicants with unlawful detainer records deters tenants from appearing in landlord-tenant court
      • Ability to secure housing in the future more important than one particular tenancy
      • Tenants commonly move out after receiving unfiled summons & complaint, rather than remain and allow landlord to file suit
    • Effectively denies tenants access to justice
      • RLTA can only be enforced judicially
  • Everyday Outrages
    • Tenant in foreclosed rental property acquires UD record from suit deed-of-trust purchaser brought without notice
    • Tenant with disability sued for UD when denied reasonable accommodation needed to meet lease terms
    • DV survivor breaks lease under RCW 59.18.575 but is sued for rent collection
    • Sec. 8 tenant sued for non-payment of rent when she refuses demand for side payment
    • Tenant sued for UD, goes to trial and wins on merits; denied housing 5 years later because of UD filing
    • Landlord notifies tenant in mid-month that rent will increase for following month; tenant chooses to pay the illegal rent increase rather than risk non-payment suit
  • Sealing SCOMIS Records
    • Theoretically possible to redact SCOMIS
      • Indigo Real Estate Services v. Rousey, 151 Wn. App. 941; 215 P.3d 977 (2009)
        • Preserving rental housing opportunities may support an order to redact SCOMIS under GR 15(c)
    • However, very difficult in practice
      • Must appear at hearing, persuade court that privacy rights outweigh public interest, order narrowly-tailored
    • No statutory right to deny existence of case even if record is sealed/redacted
      • Unlike criminal convictions, which can be denied if record is vacated and sealed
    • “ We adhere to the constitutional principle that it is the right of the people to access open courts where they may freely observe the administration of civil and criminal justice. Openness of courts is essential to the courts' ability to maintain public confidence in the fairness and honesty of the judicial branch of government as being the ultimate protector of liberty, property, and constitutional integrity.”
    • -- Allied Newspapers v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993)
    • --But are landlords & tenant-screening companies really using these records to uphold judicial integrity?
    Why is sealing so difficult?
  • Possible Solutions
    • Prohibit automatic rejection of rental applications for having UD records
      • Require case-by-case considerations
    • Prohibit CRAs from reporting UD suits in which landlord does not prevail
      • Tenants still vulnerable if landlord checks SCOMIS directly, or outside Washington
    • Improve ability to seal unfair UD record
      • Allow tenants to deny sealed cases