Deborah Wilson v. Rental Research Services, Inc.

LOKEN, Circuit Judge,

dissenting in part.

I respectfully dissent from the court’s decision to reverse the grant of summary judgment dismissing Deborah Wilson’s claim under § 607 of the Fair Credit Reporting Act, 15 U.S.C. § 1681e(b). In my view, Rental Research’s reporting of public information from local housing courts was accurate as a matter of law.

Housing courts in Minneapolis and St. Paul maintain computerized summaries of past unlawful detainer proceedings. Twin Cities landlords can search this data by the names of the unlawful detainer parties to learn whether a prospective tenant has been sued for eviction by a prior landlord. Because these court records list the tenant’s *649name as spelled by the landlord plaintiff, with no additional identifying information such as date of birth or social security number, a landlord searching for prior eviction actions against a prospective tenant with a name such as “Deborah” would note actions involving persons with substantially similar names such as “Debra" or “Debrah.”6 And when the prospective tenant has a common surname such as Wilson, a landlord personally searching these records would know that any reported unlawful detainer action might have involved a different person.

For $15.00, Twin Cities landlords may obtain this housing court information (and a great deal more information) by purchasing an Instant Inquiry report from Rental Research. In the section listing unlawful de-tainer information, the Instant Inquiry reminds landlord subscribers of the limitation inherent in this data by stating:

* * WARNING * *
The following RECORDS from our data BASE ARE BASED SOLELY ON THE NAME. REVIEW with Caution for the reoords require VERIFICATION. THE INFORMATION MAY NOT PERTAIN TO THE SUBJECT OF THIS REPORT. If a connection exists, telephone verified INFORMATION TO OUR OFFICE MANAGER.

The court nonetheless concludes that any consumer whose Instant Inquiry reported an unlawful detainer involving a different person may have a claim for damages under § 1681e(b) submitted to a jury on the question whether Rental Research followed reasonable procedures to assure the maximum possible accuracy of its information. Under this ruling, Rental Research will be subject to a jury trial every time a $15.00 Instant Inquiry reports as “possible” an unlawful detainer action involving a person other than the subject of the report.

Of course, the effect of the court’s ruling will be to eliminate as cost prohibitive this category of information from the Instant Inquiry reports. This means that landlords either must obtain the housing court information themselves at greater expense, dr do without information that helps them identify the small but costly group of tenants who make a practice of not paying rent until they are forcibly evicted. Either way, the cost of providing rental housing will increase, a cost that is inevitably passed on to the vast majority of renters who pay their bills.7 Though I recognize that the “wrong person” problem is potentially difficult for prospective tenants with common surnames, I find nothing in the language or history of § 1681e(b) supporting the court’s decision to use that statute to invalidate Rental Research’s legitimate service.

As the court concedes, to recover under § 1681e(b) Wilson must prove the Instant Inquiry report was inaccurate.8 Wilson admits her Instant Inquiry was technically accurate, that is, Rental Research correctly copied or reproduced the housing court records. There is also the issue of what I would call judgmental accuracy — whether Rental Research accurately chose which housing court information to include in a particular Instant Inquiry. Wilson argues Rental Research failed at this level because it reported as “possibles” other people’s unlawful detain-ers. However, even if it is proper to look beyond technical accuracy when dealing with *650public court records, the Instant Inquiry report was accurate because Rental Research reasonably selected the unlawful detainer actions to include as “possibles” and then clearly warned landlord subscribers of the accuracy limitations inherent in the housing court data. Given this disclosure, the court engages in fantasy when it speculates that the Instant Inquiry was misleading because “a landlord could not determine which, if any, of the unlawful detainers were brought against [Wilson].” Ante at p. 645. No one, and most assuredly not an experienced landlord, could be misled by housing court information that is accurately reproduced and described. Because the information combined with the Warning was neither inaccurate nor misleading, the district court properly granted summary judgment dismissing Wilson’s § 1681e(b) claim.

There are two additional reasons why this interpretation of § 1681e(b) is consistent with the statute’s purpose, as well as its plain meaning. First, neither Wilson nor the court explains how Rental Research could verify unlawful detainer “possibles” when preparing Instant Inquiry reports. Given the limited information in the housing court database, the most likely sources of confirming information would be the landlords involved in the unlawful detainer actions, or the prospective tenant herself. Verification by personal contacts of this kind is costly and time consuming. It can most effectively be done by Rental Research’s subscribing landlord, after the landlord decides that the unlawful detain-er information is sufficiently material to its rental decision to warrant further inquiry.9 Instead, the court unrealistically places on Rental Research the costly duty to verify all such information. The FCRA should not be construed so as to substantially increase the cost of accessing “presumptively reliable” data such as housing court records. Henson, 29 F.3d at 285.

Second, compelling Rental Research to look beyond the four corners of the public housing court records to verify the identity of unlawful detainer “possibles” improperly conflates a reporting agency’s duty under § 1681e(b) in preparing the initial consumer report, with its duty under § 1681Í to rein-vestigate once the subject of the report has identified allegedly inaccurate information. “Once a claimed inaccuracy is pinpointed, a consumer reporting agency conducting further investigation incurs only the cost of reinvestigating that one piece of disputed information. In short, when one goes from the § 1681e(b) investigation to the § 1681i(a) re investigation, the likelihood that the cost-benefit analysis will shift in favor of the consumer increases markedly.” Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997), following Henson, 29 F.3d at 286-87.

I agree with the court that Rental Research did not violate former 15 U.S.C. § 1681i by declining to notify TRW of Wilson’s complaint that TRW had reported inaccurate information. Accordingly, I would affirm.

. For example, the two unlawful detainers confirmed after Wilson complained to Rental Research appeared in the housing court records under different first names, one as "Deborah Wilson,” and the other as "Debra Wilson.”

. According to U.S. Census Bureau data from February 1997, 9% of the nation's landlords reported that over 25% of their tenants were rent delinquent in the prior two years, and almost 19% of those landlords had been to court as plaintiffs five times or more during that period. Obviously, therefore, formal evictions are a significant part of the total cost of operating rental property. Stated differently, weeding out prospective tenants who will require formal eviction lowers rental costs for all others.

. In Henson v. CSC Credit Services, 29 F.3d 280, 285 (7th Cir.1994), the Seventh Circuit held "that, as a matter of law, a credit reporting agency is not liable under the FCRA for reporting inaccurate information obtained from a court's Judgment Docket, absent prior notice from the consumer that the information may be inaccurate.!’ By subjecting Rental Research to possible liability for reporting information contained in housing court records even though Wilson gave no prior notice of inaccuracies, the court seems to have created a conflict in the circuits.

. Here, for example, the Instant Inquiry on Wilson reported two terminated bankruptcy proceedings, four judgments, and nine credit situations in Chicago and the Twin Cities, in addition to the twelve unlawful detainer reports from Twin Cities housing courts. No landlord would need to verify that some of the unlawful detain-ers in fact involved Wilson before concluding she was a serious credit risk.