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. 234EricD@nwjustice.org

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