Download - Judiciary Work Session 6 8 2010
The SCOMIS Blacklist:The SCOMIS Blacklist: How the commercial use of unlawful How the commercial use of unlawful detainer records both perpetuates detainer records both perpetuates homelessness and undermines the homelessness and undermines the integrity of Washington courtsintegrity of Washington courts
Eric Dunn, Staff AttorneyNorthwest Justice Project401 Second Ave. S., Ste. 407Seattle, Washington 98104Tel. (206) 464-1519, ext. [email protected]
Rental Application ProcessRental Application Process Prospective tenant (applicant) submits Prospective tenant (applicant) submits
written application & pays screening feewritten application & pays screening fee Landlord obtains tenant-screening reportLandlord obtains tenant-screening report
Some will check public records directlySome will check public records directly Screening service compiles, transmits reportScreening service compiles, transmits report
Credit, criminal history, civil litigation recordsCredit, criminal history, civil litigation records Score or recommendationScore or recommendation
Landlord makes decision, informs applicantLandlord makes decision, informs applicant May or may not give reason for rejectionMay or may not give reason for rejection
Tenant-Screening ReportsTenant-Screening Reports Most common: “Credit, Criminal & Eviction”Most common: “Credit, Criminal & Eviction”
““Credit report” (Equifax, Experian, TransUnion)Credit report” (Equifax, Experian, TransUnion) Criminal background checkCriminal background check
• Public records searchPublic records search• Private vendor (ChoicePoint, USIS, etc.)Private vendor (ChoicePoint, USIS, etc.)
Civil litigation records (SCOMIS search)Civil litigation records (SCOMIS search)• Unlawful detainers, other LL-T, DVPO, etc.Unlawful detainers, other LL-T, DVPO, etc.
Investigative reportsInvestigative reports Screening service also interviews past landlordsScreening service also interviews past landlords
Scores & recommendationsScores & recommendations In addition to or in lieu of raw dataIn addition to or in lieu of raw data
Civil Litigation Records: SCOMISCivil Litigation Records: SCOMIS
Superior Court Mngmt. Information System Superior Court Mngmt. Information System Docket management systemDocket management system
• Function is management of court docketsFunction is management of court dockets• Not designed as tenant-screening implementNot designed as tenant-screening implement
Launched in 1977, statewide since 1985Launched in 1977, statewide since 1985 Data entered by court clerk upon case filingData entered by court clerk upon case filing
Contains party names, filing date, case typeContains party names, filing date, case type• Eviction appears as “unlawful detainer”Eviction appears as “unlawful detainer”
What a SCOMIS name search What a SCOMIS name search shows:shows:
Notable omissions:Notable omissions:• Case details, outcomeCase details, outcome• Access to actual case documentsAccess to actual case documents• Docket entries (after 18 months)Docket entries (after 18 months)
SCOMIS: Docket EntriesSCOMIS: Docket Entries
Pending & recently resolved cases onlyPending & recently resolved cases only Docket entries archived after 18 monthsDocket entries archived after 18 months Often give some indication as to status and Often give some indication as to status and
outcome of the lawsuitoutcome of the lawsuit Can be cryptic, incomplete, misleadingCan be cryptic, incomplete, misleading
SCOMIS Docket EntriesSCOMIS Docket Entries
““Eviction Report”Eviction Report”
Outcome schmoutcomeOutcome 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,” *Quote is from Teri Karush Rogers, “Only the Strongest Survive,” N.Y. Times (N.Y. Times (Nov. 26, 2006)Nov. 26, 2006)
I feel like I lose when I winI 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 19.182.110RCW 19.182.110If a person takes an adverse action with respect to a If a person takes an adverse action with respect to a consumer that is based, in whole or in part, on information consumer that is based, in whole or in part, on information contained in a consumer report, the person shall:contained in a consumer report, the person shall:
(1) Provide written notice of the adverse action to the (1) Provide written notice of the adverse action to the consumer, consumer, except verbal notice may be given by a except verbal notice may be given by a person in an adverse action involvingperson in an adverse action involving a business a business regulated by the Washington utilities and transportation regulated by the Washington utilities and transportation commission or involving commission or involving an application for the rental or an application for the rental or leasing of residential real estate if such verbal notice leasing of residential real estate if such verbal notice does not impair a consumer's ability to obtain a credit does not impair a consumer's ability to obtain a credit report without charge under RCW 19.182.100(2);report without charge under RCW 19.182.100(2); and and
(2) Provide the consumer with the name, address, and (2) Provide the consumer with the name, address, and telephone number of the consumer reporting agency that telephone number of the consumer reporting agency that furnished the report to the person.furnished the report to the person.
Adverse Action Notice – form by Moco, Inc.
Adverse Action NoticesAdverse Action Notices
Scores & RecommendationsScores & Recommendations Landlord supplies criteria to screenerLandlord supplies criteria to screener
UD filings usually a basis for denialUD filings usually a basis for denial Other civil litigation may beOther civil litigation may be
• Collections suits by landlordsCollections suits by landlords• Tenant-initiated suits (security deposits, habitability)Tenant-initiated suits (security deposits, habitability)
Screener applies criteriaScreener applies criteria Screener issues score or recommendationScreener issues score or recommendation
Result: criteria applied rigidlyResult: criteria applied rigidly Commonly results in unfair rejectionsCommonly results in unfair rejections Can have discriminatory effectsCan have discriminatory effects
On-Site Manager, Inc. sample report
Moco, Inc. actual report
D.I.Y. Tenant-ScreeningD.I.Y. Tenant-Screening
““The Unhouseables”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 EffectChilling Effect That residential landlords routinely deny That residential landlords routinely deny
housing to applicants with unlawful detainer housing to applicants with unlawful detainer records deters tenants from appearing in records deters tenants from appearing in landlord-tenant courtlandlord-tenant court Ability to secure housing in the future more Ability to secure housing in the future more
important than one particular tenancy important than one particular tenancy Tenants commonly move out after receiving Tenants commonly move out after receiving
unfiled summons & complaint, rather than unfiled summons & complaint, rather than remain and allow landlord to file suitremain and allow landlord to file suit
Effectively denies tenants access to justiceEffectively denies tenants access to justice RLTA can only be enforced judiciallyRLTA can only be enforced judicially
Everyday OutragesEveryday Outrages Tenant in foreclosed rental property acquires UD record Tenant in foreclosed rental property acquires UD record
from suit deed-of-trust purchaser brought without noticefrom suit deed-of-trust purchaser brought without notice Tenant with disability sued for UD when denied Tenant with disability sued for UD when denied
reasonable accommodation needed to meet lease termsreasonable accommodation needed to meet lease terms DV survivor breaks lease under RCW 59.18.575 but is DV survivor breaks lease under RCW 59.18.575 but is
sued for rent collectionsued for rent collection Sec. 8 tenant sued for non-payment of rent when she Sec. 8 tenant sued for non-payment of rent when she
refuses demand for side paymentrefuses demand for side payment Tenant sued for UD, goes to trial and wins on merits; Tenant sued for UD, goes to trial and wins on merits;
denied housing 5 years later because of UD filingdenied housing 5 years later because of UD filing Landlord notifies tenant in mid-month that rent will Landlord notifies tenant in mid-month that rent will
increase for following month; tenant chooses to pay the increase for following month; tenant chooses to pay the illegal rent increase rather than risk non-payment suitillegal rent increase rather than risk non-payment suit
Sealing SCOMIS RecordsSealing SCOMIS Records Theoretically possible to redact SCOMISTheoretically possible to redact SCOMIS
Indigo Real Estate Services v. Rousey,Indigo Real Estate Services v. Rousey, 151 Wn. App. 151 Wn. App. 941; 215 P.3d 977 (2009) 941; 215 P.3d 977 (2009)
• Preserving rental housing opportunities may support an Preserving rental housing opportunities may support an order to redact SCOMIS under GR 15(c)order to redact SCOMIS under GR 15(c)
However, very difficult in practiceHowever, very difficult in practice Must appear at hearing, persuade court that privacy Must appear at hearing, persuade court that privacy
rights outweigh public interest, order narrowly-tailoredrights outweigh public interest, order narrowly-tailored
No statutory right to deny existence of case No statutory right to deny existence of case even if record is sealed/redactedeven if record is sealed/redacted Unlike criminal convictions, which can be denied if Unlike criminal convictions, which can be denied if
record is vacated and sealedrecord is vacated and sealed
““We adhere to the constitutional principle that it is We adhere to the constitutional principle that it is the right of the people to access open courts where the right of the people to access open courts where they may freely observe the administration of civil they may freely observe the administration of civil and criminal justice. Openness of courts is essential and criminal justice. Openness of courts is essential to the courts' ability to maintain public confidence in to the courts' ability to maintain public confidence in the fairness and honesty of the judicial branch of the fairness and honesty of the judicial branch of government as being the ultimate protector of liberty, government as being the ultimate protector of liberty, property, and constitutional integrity.”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?Why is sealing so difficult?
Possible SolutionsPossible Solutions Prohibit automatic rejection of rental Prohibit automatic rejection of rental
applications for having UD recordsapplications for having UD records Require case-by-case considerationsRequire case-by-case considerations
Prohibit CRAs from reporting UD suits in Prohibit CRAs from reporting UD suits in which landlord does not prevailwhich landlord does not prevail Tenants still vulnerable if landlord checks Tenants still vulnerable if landlord checks
SCOMIS directly, or outside WashingtonSCOMIS directly, or outside Washington Improve ability to seal unfair UD recordImprove ability to seal unfair UD record
Allow tenants to deny sealed casesAllow tenants to deny sealed cases