Connecticut Fair Housing Ctr et al v. CoreLogic Rental Property Solutions, LLC

Filing 317

MEMORANDUM OF DECISION AND ORDER following bench trial. The Court finds for the Defendant on the FHA and CUTPA claims, and finds for Mr. Arroyo on his FCRA claim for $1,000 in statutory damages, $3,000 in punitive damages, and reasonable a ttorneys' fees in an amount to be determined. Mr. Arroyo may file a motion for reasonable attorneys' fees as detailed in the attached decision within 35 days of this order. Signed by Judge Vanessa L. Bryant on 7/20/2023.(Burlingham, Corinne)

Case 3:18-cv-00705-VLB Document 317 Filed 07/20/23 Page 1 of 61

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Connecticut Fair Housing Ctr, et al.
Plaintiffs,
v.
CoreLogic Rental Property Solutions, LLC,
Defendant.

:
:
: No. 3:18-cv-705-VLB
:
:
: July 20, 2023
:
:
:

MEMORANDUM OF DECISION AND ORDER
Following a serious accident that left Mikhail Arroyo severely disabled and
unable to care for himself, his mother, Carmen Arroyo, became his court
appointed conservator. Ms. Arroyo applied for Mr. Arroyo to move in with her in
the apartment complex where she lived. Mr. Arroyo’s application was denied
because, a year before his accident, he was arrested in another state and charged
with minor theft. The leasing staff did not tell Ms. Arroyo why Mr. Arroyo’s
application was denied. Rather, the leasing staff told Ms. Arroyo to obtain Mr.
Arroyo’s background report directly from the screening company. She tried, but
her efforts fell short. Ms. Arroyo sought help from a local non-profit housing
advocacy group, Connecticut Fair Housing Center (“CFHC”). Together, they
brought a complaint before the Commission on Human Rights and Opportunities
(“CHRO”) against the housing provider who denied Mr. Arroyo’s application.
Thereafter, the housing provider changed its decision and accepted Mr. Arroyo’s
application.
Before the Court is the case brought by CFHC and Ms. Arroyo, both for
herself and as conservator for Mr. Arroyo (the “Plaintiffs”), against CoreLogic
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Rental Property Solutions, LLC (“CoreLogic”), the background screening
company that the housing provider used to check Mr. Arroyo’s criminal history
and creditworthiness. The Plaintiffs allege CoreLogic’s use and advertisement of
its criminal background screening product, CrimSAFE, (1) has a disproportionate
adverse impact on Latinos and African Americans as compared to similarly
situated whites; (2) has the intention of discriminating on the basis of national
origin and race; and (3) intentionally encourages, facilitates, and assists housing
providers’ with unlawful discrimination, all in violation of the Fair Housing Act, 42
U.S.C. §§ 3601 et seq. (“FHA”) and the Connecticut Unfair Trade Practice Act,
Conn. Gen. Stat. §§ 42-110a et seq. (“CUTPA”). The Plaintiffs also allege that
CoreLogic violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq.
(“FCRA”), in failing to disclose Mr. Arroyo’s consumer report upon request, by
failing to establish reasonable requirements for proper identification, and by
placing unreasonable preconditions on the disclosure of a consumer report.
The Court conducted a ten-day bench trial. Having considered the
evidence and arguments submitted at trial and in the parties’ written
submissions, the Court rules in favor of CoreLogic on the Plaintiffs’ FHA and
CUTPA claims and rules in favor of Mr. Arroyo on the FCRA claim.
Below are the Court’s findings of fact and conclusions of law. 1

See Fed. R. Civ. P. 52(a)(1) (“In an action tried on the facts without a jury or with
an advisory jury, the court must find the facts specially and state its conclusions
of law separately.”).
1

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I.

FINDINGS OF FACT
A.

1.

The Parties

Mikhail Arroyo, a plaintiff in this action, is a Latino male. 2 (SOF ¶ 13.) In

July 2015, Mr. Arroyo was in a serious accident that caused a traumatic brain
injury, left him completely unable to walk or talk, and rendered him in need of
assistance with all activities of daily living and mobility. (SOF ¶ 16.) Mr. Arroyo
was hospitalized following the accident until early 2016, when he was transferred
to a nursing home where he could continue to recover. (SOF ¶ 19; Tr. 3/14/2022
6:3–4.) In April 2016, Mr. Arroyo was authorized to be discharged from the
nursing home to live with his mother, who will be his primary caregiver. (SOF ¶
20.)
2.

Mr. Arroyo’s mother is Carmen Arroyo, who is also a plaintiff in this action.

Ms. Arroyo serves as one of Mr. Arroyo’s court-appointed conservators. (SOF ¶
18; Tr. 3/14/2022 4:14–16.)
3.

The Connecticut Fair Housing Center is a housing advocacy non-profit

organization. CFHC aids individuals it believes have been victimized by housing
discrimination in asserting their rights by taking actions that include bringing
lawsuits on their behalf. (Tr. 10/28/2022 747:3–21.) In addition, CFHC provides
education programs for victims and housing providers, and is involved in public
policy formation. (Tr. 10/28/2022 747:22–748:6.) In late November 2016, Ms.

The Plaintiffs use “Latino” and “Hispanic” interchangeably to identify Mr.
Arroyo’s ethnicity. (SOF ¶ 13; Tr. 3/14/2022 6:11–12.) The Court will use the term
“Latino” for the sake of this decision.

2

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Arroyo reached out to CFHC for assistance in her efforts to move Mr. Arroyo into
her apartment with her. (Tr. 3/14/2022 20:16–21:1; Tr. 10/25/2022 at 720:6–8.)
4.

CoreLogic is a tenant screening company that offers multi-family housing

providers a number of tenant screening products and services, including credit
and criminal history screening. (SOF ¶¶ 1, 4.) CoreLogic provides these
products and services to customers nationwide, including more than 20
customers in the State of Connecticut. (SOF ¶ 3.)
5.

Though not a party, WinnResidential plays a central role in this litigation.

WinnResidential is a multi-family owner and manager of apartment buildings
throughout the country, managing over 120,000 units nationwide. (Tr. 3/14/2022
126:3–8.) During relevant times, WinnResidential managed 16 properties in
Connecticut, including ArtSpace Windham—an apartment complex in Windham,
Connecticut. (SOF ¶¶ 10–11.) Artspace Windham is the apartment complex
where Ms. Arroyo lived while Mr. Arroyo was in the nursing home recovering after
his accident and where Ms. Arroyo applied for Mr. Arroyo to live when he was
cleared to leave. (Tr. 3/14/2022 6:23–7:4.) WinnResidential has been a customer
of CoreLogic since 2006 and used its tenant screening products from 2008 until
2020. (SOF ¶ 9.) In March 2010, CoreLogic’s predecessor, First Advantage
SafeRent, and WinnResidential entered into a Screening Service Agreement. (Ex.
J.) The agreement provides that WinnResidential is solely and exclusively
responsible for complying with all laws as they relate to use of consumer reports.
(Id.) The agreement also provides that CoreLogic is not an agent of
WinnResidential. (Id.)

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B.
6.

CoreLogic’s Tenant Screening Products

CoreLogic offers a criminal history screening product called CrimSAFE.

(SOF ¶ 4.)
7.

CoreLogic’s criminal history products, like CrimSAFE, are web-based

software programs that match criminal records and generate reports of data from
CoreLogic’s large criminal records database. The database contains criminal
records from over 800 jurisdictions throughout the nation with over half a billion
criminal records collected and categorized pursuant to CoreLogic’s record
classification criteria. (Tr. 11/3/2022 17:5–16.)
8.

CoreLogic’s classifications for categorizing criminal records in its

database largely mirror classification criteria used by the Federal Bureau of
Investigation in its National Incident-Based Reporting System. (Tr. 11/3/2022
19:9–15; Tr. 11/7/2023 64:1–5; Ex. AW.) All records fall within three primary
categories: (1) “Crimes Against Property,” (2) “Crimes Against Persons,” and (3)
“Crimes Against Society.” (SOF ¶ 5.) Within these categories are more specific
sub-categories totaling 36 sub-categories. (SOF ¶ 5.) The subcategories for
“Crimes Against Persons,” for example, include: “assault related offenses,”
“family related offenses, nonviolent,” “homicide related offenses,”
“kidnapping/abduction related offenses,” “sex related offenses, forcible,” “sex
related offenses, nonforcible,” and “all other person related offenses.” (Ex. 3.)
9.

CoreLogic has a similar background screening product called CrimCHECK.

CrimCHECK provides users with unfiltered access to any and all criminal records
within CoreLogic’s criminal records database that match the tenant applicant’s

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identification information. (Tr. 11/3/2022 17:2–4; Tr. 11/7/2022 62:23–63:2, 87:16–
25.)
10.

CrimSAFE, like CrimCHECK, matches records from the CoreLogic criminal

records database to a tenant applicant. Unlike CrimCHECK, CrimSAFE filters out
records that the housing provider deemed irrelevant for their housing decision.
(Tr. 11/7/2022 62:1–64:11.) CrimSAFE filters out records based on three criteria
(1) type of offense, (2) severity/disposition, and (3) age of offense. 3 (Id.)
11.

In practice, CrimSAFE filters out a large number of criminal records from

housing provider consideration. During the same period of time involving the
same applicant pool, CrimCHECK reported 14% of applicants had a criminal
record, where CrimSAFE reported only 6% of applicants with criminal records.
(Tr. 11/3/2022 29:14–30:1)
12.

By filtering out records a housing provider deems irrelevant to their

housing decision, CrimSAFE increases the number of automatic acceptances for
individuals that have older and minor criminal histories. This unburdens the
housing provider’s staff and provides faster processing of tenant applications.
The filtering function is an added feature, which is why CrimSAFE is more
expensive than CrimCHECK. (Tr. 11/7/2022 245:5–8.)

The Court will address the filtering function in greater detail in a later portion of
this decision. The filtering function is mentioned at this point in the decision to
demonstrate the difference between CrimCHECK and CrimSAFE.

3

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CrimSAFE Advertising
13.

CoreLogic advertises its tenant screening products to housing providers.

In one of CoreLogic’s product briefs on CrimSAFE issued in or around 2016 (the
“2016 Product Brief”) CoreLogic describes CrimSAFE as follows:
Registry CrimSAFE® automates the evaluation of criminal records.
Registry CrimSAFE is designed for clients who want CoreLogic®
SafeRent® to process criminal history records and notify the leasing
staff when criminal records are found that do not meet the criteria
established by your community. Registry CrimSAFE helps you
implement consistent decisions, which improves Fair Housing
compliance and frees your staff from interpreting criminal records.
(Ex. 11.)
14.

The 2016 Product Brief lists the benefits of CrimSAFE as: “Maintain[ing] a

safer community for residents, guests, and staff,” “Reduc[ing] potential liability
from criminal acts,” “Improv[ing] Fair Housing compliance by helping you screen
applicants consistently,” and “Sav[ing] time for leasing staff.” (Ex. 11.)
15.

The 2016 Product Brief also lists the features of CrimSAFE as: “Flexible

configuration – more than 30 criminal categories allow you to determine precisely
how to handle different types of offenses,” “Administrative control – powerful set
up tool to configure and change your settings,” and “Comprehensive reporting –
management reports allow you to monitor property performance and provide
feedback on offenses found.” (Ex. 11.)
16.

The 2016 Product Brief contains a sample screenshot of CrimSAFE’s

customer interface when criminal records are matched to an applicant. (Ex. 11.)
The example shows the program displaying the following message: “Record(s)
Found,” “Based upon your community CrimSAFE settings and the results of this
search, disqualifying records were found. Please verify the applicability of these
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records to your applicant and proceed with your community’s screening
policies.” (Ex. 11.) The screenshot sample in the advertisement also contains a
section titled “Agent Decision,” with a dropdown option for an agent to select
when an applicant was accepted or declined. (Ex. 11.)
17.

In a “Request for Proposal” CoreLogic issued on August 10, 2015,

CoreLogic described CrimSAFE as follows:
CoreLogic SafeRent is the only company that offers Registry
CrimSAFE®, a robust tool that relieves your staff from the burden of
interpreting criminal search results and helps ensure consistency in
your decision process. You set the policies for accepting or declining
categories of criminal offenses. Then, criminal record search results
are evaluated using our own advanced, proprietary technology and an
accept/decline leasing decision is delivered to your staff. With
CrimSAFE, your policies are consistently implemented, Fair Housing
compliance is optimized and your community enjoys an improved
level of safety. Registry CrimSAFE works in conjunction with all of
our criminal checking services, whether you use our multi-state,
statewide, county searches or Multi-State Sex Offender Search.
(Ex. 7, 12; Tr. 10/25/2022 606:4–607:15.)
CrimSAFE Purchase and Initial Configuration
18.

When a customer, particularly a large customer, decides to purchase

CrimSAFE, CoreLogic assigns a Senior Account Manager to help the housing
provider with the initial configuration of their CrimSAFE settings. (Tr. 11/7/2022
48:24–49:3, 50:25–51:3.)
19.

CoreLogic and the housing provider enter into a “Screening Service

Agreement.” Typically, the Screening Service Agreement provides that the
housing provider is solely and exclusively responsible for complying with all
federal, state, and local laws as it relates to use of consumer reports. (Tr.

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11/7/2022 56:7–18; Ex. J.) The agreement also provides that CoreLogic and the
customer are not agents of the other. (Tr. 11/7/2022 57:3–12.)
20.

When a new customer purchases CrimSAFE, they must complete an initial

configuration of their CrimSAFE settings. (Tr. 11/7/2022 71:11–18.) A housing
provider can submit their initial configuration in one of two ways. They can
submit the forms to the Senior Account Manager assigned to their account and
that manager will input the data into CrimSAFE. (Tr. 3/14/2022 137:9–22; Exs. 1,
8.) Alternatively, the housing provider can input the configuration directly into
CrimSAFE themselves. (Tr. 3/14/2022 137:9–22; Exs. 1, 8.)
21.

The CrimSAFE configuration platform contains a section titled “MANAGE

CRIMINAL ACCEPTANCE DECISIONS.” (Ex. 8.) Under this title is the following
text: “For each criminal category, enter the minimum number of years that your
community wants to decline an applicant for the specified type of crime. Please
note that applicants whose criminal record are older than the number of years for
the specified crime will result in an accept for your community.” (Ex. 8.) The
“minimum number of years,” as used above, is known as the “lookback period.”
Following this instruction is a configuration matrix. (Ex. 8.) The rows of the
configuration matrix are the criminal offense subcategories that CoreLogic uses
to organize its criminal records database. See (FF ¶ 8). The configuration matrix
has four columns representing different crime severities and dispositions: (1)
felony conviction, (2) other felony charge, (3) other conviction, and (4) other
criminal charge. (Ex. 8.) The intersection between the rows and columns—i.e.,
the matrix elements—represent the lookback period, which again is the number

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of years after which criminal records will not match with the applicant. (Ex. 8.)
The lookback periods for all convictions can be between zero and 99 years. (Ex.
8.) The lookback periods for all charges can be between zero and seven years.
(Ex. 8.)
22.

In training materials on CrimSAFE configuration, CoreLogic used the term

“Decline” to describe when criminal records were matched to an applicant.
(11/7/2022 240:7–11, 244:4–9.) For example, in a PowerPoint presentation on how
to configure CrimSAFE settings, the slide states “All crime categories must be
configured with the client’s criteria – Failure to configure will result in high
declines.” (Ex. 48 § 4.8.)
23.

In 2012, CoreLogic used a paper configuration form that instructed the

formfiller to: “[e]nter number of years counting backward from today that will
cause an application decline.” (Ex. 1.) The older forms also include decision
messages—which is the language used in the tenant screening reports—of either
“accept” or “decline.” (Ex. 1.)
24.

During the initial configuration stage, some housing providers ask the

CoreLogic sale and account managers for advice about selecting lookback
periods under each category. (Tr. 10/25/2022 579:25–581:6, 583:17–24.)
CoreLogic managers respond by sharing choices made by its other housing
provider customers. (Tr. 3/15/2022 164:24–165:10; Tr. 10/25/2022 589:13–23,
603:9–11; Tr. 11/7/2022 121:5–11.) CoreLogic does not make a recommendation
on what the housing providers should choose and expressly tells housing

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providers that the ultimate decision is theirs. (Tr. 10/25/2022 590:8–9, 603:9–11,
637:14–21; Tr. 11/7/2022 121:18–19.)
25.

CrimSAFE provides two levels of access to criminal record reports: one

that shows all available data on criminal records found and one that displays a
suppressed version only showing that records were found but not the actual
records found. Each new user is, by default, authorized to receive the full data.
(Tr. 11/7/2022 80:21–22, 115:3–4, 248:10–19; Ex. 46.) CrimSAFE does not limit
how many users can have full access. (Tr. 11/7/2022 81:17–19.)
26.

Some housing providers, including WinnResidential, configure their

CrimSAFE to give selected senior level managers full access to criminal records
and to deny access to onsite leasing staff. (Tr. 3/15/2022 151:16–25, 153:1–7; Tr,
10/25/2022 604:14–23; Ex. 7 at p.14.) A WinnResidential executive explained that
they suppress reports from onsite staff because they fear the staff will use
personal interests (such as leasing commissions) in making a leasing decision
that the executives believe should be made by someone in a more elevated
position. (Tr. 3/15/2022 156:3–12, 186:1–13.) To limit access to criminal records,
housing providers must affirmatively go into the CrimSAFE configuration settings
and uncheck a box for “backup data.” (Tr. 10/25/2022 603:22–12; Tr. 11/3/2022
60:18–20; Ex. 8.)
27.

CrimSAFE affords housing providers the ability to customize the language

that populates in the tenant screening reports they request. (Tr. 10/25/2022
587:6–588:9; Tr. 11/7/2022 73:24–74:14; Ex. 8.) For example, the housing provider
can adjust the language in the screening reports when disqualifying records are

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found. (Id.; Tr. 10/25/2022 609:25–610:3.) The default language for when
disqualifying records are found is “Record(s) Found.” (Tr. 11/3/2022 32:12–17; Tr.
11/7/2022 73:8–12, 78:17–23.) Some CoreLogic customers have changed this
default language to say: “further review.” (Tr. 11/7/2022 79:2–11.) Housing
providers can also customize text providing instructions to the onsite leasing
staff for when records were matched with an applicant. In the case of
WinnResidential’s screening report settings at the time Mr. Arroyo applied for
tenancy, the language that accompanied the “Record(s) Found” message was:
“Please verify the applicability of these records to your applicant and proceed
with your community’s screening policies.” (Ex. 30.) The instruction to consult
community screening policies is a topic covered in the CoreLogic training
program as discussed below. This language is similar to the default language
provided by the program. (Tr. 11/7/2022 79:8–24.)
CrimSAFE Training and Use
28.

Once a customer’s CrimSAFE settings are configured, CoreLogic provides

training on how to use CrimSAFE to the housing provider’s staff, including onsite
leasing staff who typically submit applicant screening information into
CrimSAFE. (Tr. 10/25/2022 594:16–23; Tr. 11/7/2022 157:8–13.)
29.

When submitting an applicant’s information for screening, the housing

provider staff access the CrimSAFE web-based software program and input the
applicant’s name, date of birth, and current address. (SOF ¶ 6.) The program
then uses CoreLogic’s proprietary matching process to identify criminal public
records of the applicant. (SOF ¶ 7.) Almost instantly, the CrimSAFE program

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generates a tenant screening report. (Tr. 10/25/2022 591:16–21; 608:4–10.)
CoreLogic does not interact with applicants during the application stage. (SOF ¶
8.)
30.

The tenant screening report has three sections: “Report Information,”

“Lease Decision,” and “Screening Details.” (Ex. 30.)
a.

“Report Information” includes information about the screening transaction

itself, such as the applicant’s name, who performed the screening (meaning the
onsite leasing agent), and when the report was generated. (Id.)
b.

“Lease Decision,” includes a summary of the credit score and a criminal

history decision. (Id.) For a credit score decision, an applicant can be
“accepted,” “accepted with conditions,” or “declined,” depending on their credit
score. (Id.) For a criminal history decision, an applicant can be accepted or, in
Mr. Arroyo’s case, the report says “Record(s) Found,” “Please verify the
applicability of these records to your applicant and proceed with your
community’s screening policies.” (Id.) As explained above, the housing provider
selects the language that appears when criminal records are matched with an
applicant and what records will trigger a report.
c.

“Screening Details,” include several subsections for “Applicant

Information,” “Reports,” and “Letters.” (Id.) Included in “Reports” is a
“CrimSAFE Report,” which contains a section titled “CRIMSAFE RESULTS.” (Id.)
Under the title is the following statement: “BASED UPON YOUR COMMUNITY
CRIMSAFE SETTINGS AND THE RESULTS OF THIS SEARCH, DISQUALIFYING
RECORDS WERE FOUND. PLEASE VERIFY THE APPLICABILITY OF THESE

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RECORDS TO YOUR APPLICANT AND PROCEED WITH YOUR COMMUNITY’S
SCREENING POLICIES.” (Id.)
31.

In the case of Mr. Arroyo’s tenant screening report, the “CRIMSAFE

RESULTS” only showed that Mr. Arroyo had a “CRIMINAL COURT ACTION” out of
Pennsylvania. (Id.) After the record is boilerplate language about confirming that
the information used to generate the report is correct. (Id.) This section ends
with: “Remember, you must comply with your obligations under the federal Fair
Credit Reporting Act, your Service Agreement, and the other applicable federal,
state and local laws.” (Id.)
32.

A user with access to the full backup data, as explained above, would also

have access to the Multi-State Criminal Search Report. (Tr. 11/3/2022 153:11–14;
Ex. 27.) This report provides a summary for each record found, such as: the
reporting agency, case number, file date, offense, disposition and sentence (if
available). (Id.) The report does not show what offense category, (FF ¶ 8), the
conduct fell within the CoreLogic criminal records database. (Tr. 11/3/2022
178:20–23.) A user denied full access to the criminal records by the housing
provider would be unable to view the Multi-State Criminal Search Report and
would otherwise not have access to specific information about the criminal
record. (Tr. 11/7/2022 201:25–202:17.)
33.

CoreLogic trains housing provider’s onsite leasing staff to review the

criminal records to confirm they are attributable to the applicant and to refer to
the housing provider’s tenant selection plans with respect to any criminal records
found through CrimSAFE. (Tr. 11/7/2022 163:13–16.) CoreLogic is not involved in

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the decision. (Tr. 3/14/2022 127:16–22; Tr. 10/25/2022 623:11–624:7.) CoreLogic
trains housing providers to designate someone to receive the records, but the
housing provider decides who within their organization has access to the full
criminal reports and whether the records are in fact reviewed as CoreLogic
advises. (Tr. 10/25/2022 634:3–6.)
34.

If the housing provider decides to accept an applicant, it can report in

CrimSAFE the acceptance notwithstanding any matched criminal records. (Tr.
11/3/2022 145:1–2, 145:25–146:1; Tr. 11/7/2022 151:7–17, 173:5–174:7.)
35.

If a housing provider decides to decline an application or set additional

conditions of tenancy, they typically provide an applicant with an Adverse Action
Letter. 4 CrimSAFE has a letter-generating function that inserts an applicant’s
contact information into a template adverse action letter composed by the
housing provider. (Tr. 11/3/2022 115:3–17.) CrimSAFE contains a sample adverse
action letter that the housing provider can review in composing their own letter,
which they can change at any time. (Tr. 11/3/2022 49:8–11; 115:5–6.)
36.

The adverse action letter generated for Mr. Arroyo states: “At this time we

are unable to approve your application.” (Ex. 30.) It then states that the decision
was based on information contained in a consumer report generated by
CoreLogic and provides CoreLogic’s contact information. (Id.) The letter states:
An adverse action letter is provided in compliance with a legal requirement
under the FCRA, which “requires, among other things, that ‘any person [who]
takes any adverse action with respect to any consumer that is based in whole or
in part on any information contained in a consumer report’ must notify the
affected customer.” Safeco Ins. Co. of America v. Bur, 551 U.S. 47, 52 (2007).
“The notice must point out the adverse action, explain how to reach the agency
that reported on the consumer’s credit, and tell the consumer that he can get a
free copy of the report and dispute its accuracy with the agency.” Id. at 53.
4

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In evaluating your application, information obtained from and through
CoreLogic SafeRent, LLC, which may include credit information or
consumer information from one or more of the credit bureaus or
consumer reporting agencies, may have influenced our decision in
whole or in part. These consumer reporting agencies and/or credit
bureaus did not make the decision to take adverse action and are
unable to provide specific reasons why adverse action was taken.”
(Id.)
37.

CoreLogic trained housing provider onsite leasing staff on how to access

an adverse action letter in CrimSAFE. (Tr. 11/7/2022 157:17–158:7.) The staff
was trained to give the letter to an applicant when the housing provider decides
to accept an applicant “with conditions” or decline for any reason. (Tr. 11/7/2022
157:17–158:7.) However, it is up to the housing provider on whether, and if so
when, to give the adverse action letter to an applicant. (Tr. 10/25/2022 632:8–13.)
38.

CrimSAFE can be configured to send adverse action letters via email to

housing applicants. (Tr. 11/8/2022 40:2–7.) The release of the email is delayed,
during which time the housing provider can cancel the letter. (Tr. 11/8/2022 40:7–
12.) The delay affords housing providers the opportunity to assess the
applicant’s qualifications consistent with their own community standards, as
advised in the CoreLogic training. WinnResidential used the email function for a
period of time, but not for ArtSpace Windham. (Tr. 11/8/2022 40:18–24.)
39.

CoreLogic trains housing providers how to receive daily emails containing

the CrimSAFE decision reports for applicants with records found. (Tr. 11/7/2022
84:5–85:5.) A user with authorization to view the full backup data can access
these reports at any time. (Tr. 11/7/2022 85:6–16.)
40.

CoreLogic had quarterly meetings with WinnResidential executives to

review the screening process and data generated during the preceding quarter.
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(Tr. 3/15/2022 159:18–160:6; Tr. 10/25/2022 627:16–24.) In a summary from
January 30, 2019, CoreLogic provided statistical reports for 2018. (Ex. 43 at p.8.)
The summary shows that in 2018, 762 searches (representing 2.2% of all
applicants) yielded disqualifying criminal records matched based on
WinnResidential’s CrimSAFE configuration. (Id.) This was .6% less than the
previous year. (Id.) The meeting summary also says: “If having issues with
criminal element at the properties, possibly increase:” and provides a list of
WinnResidential’s current configuration settings. (Id. at pp.8–9.)
C.
41.

Mikhail Arroyo’s Application Process

On November 20, 2015, Carmen Arroyo entered into a lease contract with

ArtSpace for a one-bedroom apartment for a lease period of November 24, 2015
through October 31, 2016. (Tr. 3/14/2022 7:5–7, 7:14–16, 43:23–25; Ex. 37.)
42.

Partway through the lease term, in July 2015, Ms. Arroyo’s son, Mikhail

Arroyo, was involved in a serious accident and was hospitalized until moved to a
nursing home in early 2016. (FF ¶ 1.)
43.

In April 2016, Mr. Arroyo was ready to be discharged from the nursing

home to live with Ms. Arroyo as his primary caregiver. (Id.)
44.

On April 4, 2016, the United States Department of Housing and Urban

Development (“HUD”) issued the “Office of General Counsel Guidance on
Application of Fair Housing Act Standards to the Use of Criminal Records by
Providers of Housing and Real Estate-Related Transactions.” (Ex. 98.) The HUD
Office of General Counsel begins the Guidance by discussing the
overrepresentation of African Americans and Hispanics in the criminal justice

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system. (Id. 1–2.) The Guidance goes on to provide the general legal framework
for disparate impact liability, which includes evaluating whether a criminal
history policy or practice has a discriminatory effect, then whether it is necessary
to achieve a substantial, legitimate, nondiscriminatory interest. (Id. 2–8.) In
addressing whether there is a substantial, legitimate, nondiscriminatory interest
in exclusions based on arrests, the Guidance states, “A housing provider with a
policy or practice of excluding individuals because of one or more prior arrests
(without any conviction) cannot satisfy its burden of showing that such policy or
practice is necessary to achieve a substantial, legitimate, nondiscriminatory
interest." (Id. 5.) The Guidance explains that “arrest records do not constitute
proof of past unlawful conduct and are often incomplete (e.g., by failing to
indicate whether the individual was prosecuted, convicted, or acquitted) . . . .”
(Id.) As to convictions, the Guidance provides that a criminal history practice or
policy that “fails to consider the nature, severity, and recency of criminal conduct
is unlikely to be proven necessary to serve a ‘substantial, legitimate,
nondiscriminatory interest’ of the provider.” (Id. 7.) The Guidance identifies one
statutory exemption from FHA liability in cases involving individuals with prior
convictions for manufacturing or distributing controlled substances as defined in
the Controlled Substances Act. (Id. 8.) The Guidance states that housing
providers conduct an individualized assessment of an applicant’s criminal history
rather than using a blanket ban. (Id. 10.)
45.

On April 15, 2016, 11 days after the HUD Guidance was released, CoreLogic

sent an email to its active customers with the subject line: “CoreLogic Response

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to New HUD Guidance,” which informed customers of the new guidance and
provided a hyperlink to the guidance. (Tr. 11/3/2022 55:11–56:15, 57:16–18; Tr.
11/7/2022 96:23–25; Ex. F.) In the email, CoreLogic summarized the guidance.
(Id.) The email stated:
The Registry CrimSAFE® tool can help with categorization of criminal
records, but it is the responsibility of each customer to set their own
criteria for making tenancy decisions. CoreLogic recommends that
our clients work with their legal counsel to review their eligibility
requirements and related policies around the use of criminal
background data to ensure compliance with all federal and state laws.
(Id.)
46.

CoreLogic’s senior account manager on the WinnResidential account

contacted WinnResidential directly to confirm they received the email notifying
customers of the HUD guidance. (Tr. 11/7/2022 103:19–104:18.) On April 16, 2016,
Lynn Bora, a vice president for WinnResidential, responded stating that she
received the email and will have a call with their internal legal department to
discuss the approach they will take. (Ex. G.) CoreLogic’s account manager had
several communications with WinnResidential, where she conveyed some
strategies her other customers were taking, such as implementing review boards.
(Tr. 11/7/2022 104:19–21.) CoreLogic also engaged outside legal counsel, who
conducted a training course for CoreLogic’s largest clients on the new HUD
guidance. (Tr. 11/7/2022 100:19–103:10.)
47.

In April 2016, Ms. Arroyo, then living in a one-bedroom apartment, informed

the onsite property manager at ArtSpace, Melissa Dejardins, that she wanted to
move from her one-bedroom apartment to a two-bedroom apartment with her son,
Mr. Arroyo. (Tr. 3/14/2022 8:8–12, 8:17–19, 48:23–49:6, 64:1–3.) Ms. Arroyo
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informed Ms. Dejardins that Mr. Arroyo was disabled. (Tr. 3/14/2022 103:24–8.)
Ms. Dejardins told Ms. Arroyo to submit paperwork so WinnResidential could
conduct a background check of Mr. Arroyo, which Ms. Arroyo did. (SOF ¶ 21; Tr.
3/14/2022 8:17–23.)
48.

On April 26, 2016, Ms. Dejardins entered Mr. Arroyo’s identification

information into the CrimSAFE program and received a screening report. (Ex.
30.) The report indicated that the “Score Decision,” which as explained above
reflects his credit history, said “Accept with Conditions.” (Id.) The report also
provided under the “Crim Decision”: “Record(s) Found.” (Id.) Under the
“Record(s) Found” message, the report directed the reader to “Please verify the
applicability of these records to your applicant and proceed with your
community’s screening policies.” (Id.) The adverse action letter composed by
WinnResidential in CrimSAFE stated “we are unable to approve your application
. . . this decision was based on information contained in consumer report(s)
obtained from and through CoreLogic RPS SafeRent, LLC.” (SOF ¶ 24.) The
letter informed that Mr. Arroyo had a right to obtain the information in his
consumer file. (SOF ¶ 24.) The adverse action letter also stated that CoreLogic
“did not make the decision to take adverse action.” (SOF ¶ 24.) The decision to
send the adverse action letter was made by WinnResidential. (SOF ¶ 25.)
49.

Ms. Dejardins did not have access to the specific criminal record that

CrimSAFE matched with Mr. Arroyo because WinnResidential did not give this
level of access to onsite leasing staff. (Tr. 3/15/2022 155:20–23.) However,

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WinnResidential executives did have access to the full criminal report. (Tr.
3/15/2022 153:1–7.)
50.

Ms. Dejardins verbally told Ms. Arroyo that Mr. Arroyo’s application was

denied and gave Ms. Arroyo CoreLogic’s phone number on a sticky note. (Tr.
3/14/2022 68:8–16.) Ms. Arroyo did not receive the adverse action letter, (Tr.
3/14/2022 67:10–68:7), even though Artspace had a tenant selection plan that
required onsite staff to notify every denied applicant in writing about a denial.
(Tr. 10/25/2022 704:14–15.)
51.

After learning of the denial, Ms. Arroyo had numerous conversations with

WinnResidential in 2016 and 2017, in which she informed WinnResidential that
Mr. Arroyo was disabled and asked for further details on the denial of his
application. (SOF ¶ 26.) WinnResidential did not immediately provide her with
information nor did it reverse its decision at that time. (SOF ¶ 26.) During this
time, WinnResidential’s regional manager, Michael Cunningham, became
involved and escalated the issue to WinnResidential vice presidents. (Tr.
10/25/2022 654:22–25, 669:5–25.)
52.

Ms. Arroyo moved forward with transferring from her one-bedroom

apartment to a two-bedroom apartment at Artspace. On November 1, 2016, Ms.
Dejardins completed a Unit Transfer Request Form, which requested that only
Ms. Arroyo be transferred to a two-bedroom unit effective November 15, 2016.
(Ex. AO.)
53.

In November 2016, the exact date not shown, Ms. Arroyo moved into a two-

bedroom unit in ArtSpace. (Tr. 3/14/2022 35:20–22, 45:6–10.) Ms. Arroyo testified

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that she did not seek to move sooner because Mr. Arroyo’s application was
denied. (Tr. 3/14/2022 35:12–36:13.)
54.

On November 28, 2016, a CFHC representative contacted Mr. Cunningham,

Ms. Dejardin’s supervisor, about Mr. Arroyo’s application. (Tr. 10/25/2022 at
720:6–8.) On December 12, 2016, CFHC sent a letter via email to Mr. Cunningham
seeking a reasonable accommodation for Mr. Arroyo in light of his disability. (Tr.
10/25/2022 718:22–719:14.)
55.

On or before December 28, 2016, after CFHC became involved, Ms. Arroyo

learned that the reason Mr. Arroyo was denied was because of a criminal record.
(Tr. 3/14/2022 21:6–18; Ex. AL (letter dated December 28, 2016 discussing the
charges).) The pending charge was for “Retail Theft-Take [Merchandise]” in
violation of Pennsylvania law 18 Pa.C.S.A. § 3929. (Ex. AK.) After learning of the
pending charge, Ms. Arroyo spoke with a court in Pennsylvania and was told to
submit Mr. Arroyo’s medical history, which she did. (Tr. 3/14/2022 23:19–21.)
56.

In February 2017, with CFHC’s assistance, Ms. Arroyo filed a complaint

with the CHRO against WinnResidential and ArtSpace Windham seeking a
reasonable accommodation for Mr. Arroyo. (SOF ¶ 29; Tr. 3/14/2022 22:8–23:12,
52:17–19.)
57.

WinnResidential submitted an “Answer” to the CHRO complaint, which Mr.

Cunningham signed, that states:
Respondents [(WinnResidential)] are not privy to the exact details as
to the denial of each applicant. Respondents pay for this third-party
screening service and are provided with a report which they make
their acceptance or denial decision. This is the same report that the
complain[ant]s have and Connecticut Fair Housing Center has. Every
denied applicant has the ability to contact CoreLogic to obtain more
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information and Respondents give applicants the information to
contact CoreLogic when requested.
(Tr. 10/25/2022 692:8–693:8; Ex. 48 at p.4.) The Answer also states that
“Respondents have admitted that they do not know the facts behind the criminal
background findings, however they hire a third-party vendor to perform the
checks, and trust in the results they are given and therefore make their decisions
based on these results.” (Ex. 48 at p.5.) The Answer is inconsistent with Mr.
Cunningham’s testimony that WinnResidential did have a way of obtaining the
criminal record details. (Tr. 10/25/2022 740:21–22.) Further, any claim that
WinnResidential did not have access to the full report may arguably be true as to
some but not all WinnResidential employees, a fact to which WinnResidential’s
executive vice president testified. (See supra, FF 26.)
58.

On April 20, 2017, a letter was sent to Ms. Arroyo from a Pennsylvania court

informing her that the charge against Mr. Arroyo was withdrawn. (SOF ¶ 27; Tr.
3/14/2022 23:22–24:14; Ex. AK.)
59.

On June 13, 2017, the CHRO conducted a factfinding hearing. (Tr.

3/14/2022 56:21–57:3.) Ten days later, on June 23, 2027, WinnResidential
accepted Mr. Arroyo’s application to move into ArtSpace. (SOF ¶ 30; Tr.
3/14/2022 57:4–6.) CoreLogic was not involved in the decision to allow Mr. Arroyo
to move in, nor was CoreLogic involved in the CHRO action. (Tr. 10/25/2022
736:4–18.)
60.

The CHRO action resulted in a settlement. (Tr. 3/14/2022 54:25–55:4.) The

settlement agreement was executed on August 9, 2017, wherein WinnResidential

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and ArtSpace agreed to pay $50,000 to the claimants and to train its staff on fair
housing compliance. (Ex. 49.)
D.
61.

Consumer Report Disclosure

The following section discusses Ms. Arroyo’s efforts to obtain a copy of

Mr. Arroyo’s consumer report, which was the basis for denying his application.
Many of the events detailed below occurred during the events discussed above.
62.

CoreLogic is a consumer reporting agency as defined under the FCRA. 5

(SOF ¶ 2.)
63.

CoreLogic has a consumer relations department that is responsible for

processing consumer report requests. (SOF ¶¶ 33–34.)
64.

CoreLogic maintains written policies and procedures for granting

consumers access to their consumer file, including specific policies governing
third parties acting on behalf of consumers. (SOF ¶ 34.) Section 2.3 of the policy
is titled “Third Party Authentication,” which has as a general rule that CoreLogic
will not release a consumer report to a third party unless the consumer provides
third-party authorization. (Ex. AF.) The section then provides an exception to the
general rule for consumer authorization, which provides for disclosure of the
consumer report if the third party can produce specific information on the
consumer and a “Valid (including notariz[ed]) Power of Attorney, or Limited
The Court will address the legal implications of being a “consumer reporting
agency” in the Conclusions of Law section of this decision. For the purpose of
framing the following findings of facts, it is important to understand that a
consumer reporting agency, like CoreLogic, is generally obligated to provide
consumers with “all information in the consumer’s file at the time of the request.”
15 U.S.C. § 1681g. The consumer reporting agency is required to set as a
condition of disclosure that the consumer “furnish proper identification.” 15
U.S.C. § 1681h(a)(1).
5

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Power of Attorney authorizing the third party to discuss the matter.” (Id.) The
policy explains that if a third party is unable to provide the necessary information,
the customer service representative must conduct a conference call with both the
consumer and the third party. (Id.) Further, the policy has a section titled “Note,”
which instructs the representative to call a supervisor for any scenarios not
covered, “including how to determine if [a Power of Attorney] is valid.” (Id.) All
customer service representatives are trained on the written policies and undergo
on-the-job training directly from a supervisor or leader. (Tr. 10/28/2022 889:20–
890:1.) CoreLogic rarely receives requests from third parties. (Tr. 10/28/2022
888:23–889:1.)
65.

As stated above, after Ms. Arroyo was told by the ArtSpace onsite leasing

agent that Mr. Arroyo’s application was denied, she was given CoreLogic’s phone
number and instructed to call that number to request a copy of Mr. Arroyo’s
consumer report. (Tr. 3/14/2022 9:13–15.) On April 27, 2016, the day after Mr.
Arroyo’s application was denied, Ms. Arroyo called CoreLogic and told them she
was Mr. Arroyo’s conservator. (Tr. 3/14/2022 9:17–18; Ex. 24.) CoreLogic told
Ms. Arroyo they would send her a consumer disclosure form for her to complete
and send back. (Tr. 3/14/2022 9:17–18; Ex. 24.) Two days later, on April 29, 2016,
CoreLogic mailed the forms to Ms. Arroyo. (Ex. 24.)
66.

On June 24, 2016, approximately two months after the forms were mailed to

Ms. Arroyo, she mailed back a partially completed form. (Ex. 28.) The form
indicates that Mr. Arroyo’s current address was 745 Main Street, East Hartford,

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Connecticut, which is the address for the nursing home where he resided at the
time. (Id.; Tr. 3/14/2022 6:3–4.)
67.

In many ways, the June 24, 2016 form was incomplete. Ms. Arroyo was

required to list Mr. Arroyo’s social security number, but she did not list it. (Ex.
28.) Ms. Arroyo was required to provide a tax or utility bill when the current
address for the consumer is different than their photo ID—which was the case for
Mr. Arroyo—but no such bill was attached. (Id.) Ms. Arroyo was required to list
all of Mr. Arroyo’s prior addresses for the last seven years, but she did not list the
address on Mr. Arroyo’s drivers license that was issued within seven years of the
request. (Id.) Lastly, Ms. Arroyo included with her paperwork a purported State
of Connecticut Probate Court Certificate of Conservatorship. (Id.) The certificate
says it is “NOT VALID WITHOUT COURT OF PROBATE SEAL IMPRESSED,” and
there was no impressed seal. (Id.) The certificate was not valid on its face.
68.

CoreLogic received the packet on June 27, 2016. (Id.)

69.

One June 30, 2016, three days after receiving the initial forms, CoreLogic

sent a letter to Ms. Arroyo. (Ex. 25.) The June 30, 2016 letter requested Ms.
Arroyo contact the CoreLogic Customer Service Center about her request. (Ex.
25.) The letter was addressed to 745 Main Street, East Hartford, (id.), which was
the address on the June 24, 2016 form submitted by Ms. Arroyo. (Ex. 28.)
70.

The June 30, 2016 letter was returned to CoreLogic on July 28, 2016 with

“WRONG ADDRESS RETURN TO SENDER” written across the envelope. (Ex. 25.)
According to CoreLogic’s internal record system, the request was deemed
incomplete because CoreLogic would need a power of attorney for Mr. Arroyo to

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process his consumer report request. (Ex. 24.) The internal notes state that
CoreLogic could not accept an appointment of conservatorship. (Ex. 24.)
71.

CoreLogic’s consumer operations team manager, Angela Barnard, testified

during the trial about Ms. Arroyo’s efforts to obtain Mr. Arroyo’s consumer file.
(Tr. 10/28/2022 881:25–950:13.) Ms. Barnard did not have any direct
communications with Ms. Arroyo, but rather read notes maintained in
CoreLogic’s internal call logs and formed opinions about what happened from
those notes. 6
72.

On September 7, 2016, Ms. Arroyo called CoreLogic to determine the status

of her request. (Tr. 3/14/2022 15:21–16:3; Ex. 24.) A CoreLogic representative
told Ms. Arroyo she would need to submit a power of attorney. (Tr. 3/14/2022
16:3–8; Ex. 24.)
73.

Mr. Arroyo lacks capacity to designate a power of attorney. (SOF ¶ 15.)

Thus, CoreLogic’s customer service team required Ms. Arroyo to provide a legal
document she could not possibly obtain. (See infra.)
74.

After the September 2016 call, Ms. Arroyo spoke with a probate lawyer, who

told her CoreLogic does not need a power of attorney because the
conservatorship affords Ms. Arroyo more rights than a power of attorney. (Tr.
3/14/2022 16:11–14.)

The Court does not credit Ms. Barnard’s interpretation of the internal notes
because she was not the author of any of the notes and several of her
characterizations were directly inconsistent with the plain statements made in the
notes. The Court will determine what was stated during the calls based on the
notes.

6

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75.

Ms. Arroyo called CoreLogic on November 1, 2016 to inform them of what

the probate attorney told her. (Tr. 3/14/2022 16:18–17:2; Ex. 24.)
76.

Ms. Arroyo’s request was internally escalated to a team lead, Tina Marie

Santos, 7 to determine why they are not able to accept the conservatorship
paperwork. (Ex. 24; Tr. 10/28/2022 902:11–18.) The matter was then escalated to
CoreLogic’s legal department. (Ex. 24.)
77.

On November 4, 2016, a CoreLogic representative called Ms. Arroyo to let

her know they were still waiting on a response from their legal team. (Ex. 24.)
78.

On November 14, 2016, Ms. Santos spoke with Ms. Arroyo informing her

that she needed to submit corrected forms, including a new conservatorship
certificate with a visible seal. (Ex. 24.)
79.

On November 15, 2016, Ms. Arroyo faxed proof of her address, a completed

Consumer Disclosure Request Form (that contained Mr. Arroyo’s social security
number and prior address in Pennsylvania), and a purported conservatorship
certificate, again, without an impressed seal. (Ex. 26.)
80.

On November 16, 18, and December 19, 2016, Ms. Santos left messages for

Ms. Arroyo to call her back. (Ex. 24.) Ms. Arroyo did not respond to these
messages. (Id.)
81.

Ms. Arroyo contacted CFHC to see if they could help her. (Tr. 3/14/2022

20:21–21:1.) On December 20, 2016, Maria Cuerda from CFHC called CoreLogic
and spoke with Ms. Santos, who told her what CoreLogic needed to complete the

7

Ms. Santos was unable to testify as she is deceased. (Tr. 10/28/2022 903:5–8.)
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consumer report request. (Ex. 24.) 8 There was no evidence presented at trial
when, if ever, Ms. Arroyo or her representatives provided CoreLogic with a
conservatorship certificate with a visible seal.
E.

Procedural History

82.

On April 24, 2018, the Plaintiffs commenced this action against CoreLogic

raising the following causes of action: (1) national origin and race discrimination
in violation of the FHA, 42 U.S.C. §§ 3601 et seq. on behalf of all Plaintiffs; (2)
disability discrimination in violation of the FHA, 42 U.S.C. §§ 3601 et seq. on
behalf of all Plaintiffs; (3) disability discrimination in violation of the FHA, 42
U.S.C. §§ 3601 et seq. on behalf of the Arroyo Plaintiffs; (4) violation of the FCRA,
15 U.S.C. § 1681g on behalf of Mr. Arroyo only; (5) violation of the FCRA, 15
U.S.C. § 1681h on behalf of Mr. Arroyo only; and (6) violations of CUTPA on
behalf of the Arroyo Plaintiffs. (Compl., ECF No. 1.)
83.

CoreLogic filed a motion to dismiss all claims raised by CFHC for lack of

standing, and Counts I, II, III, and IV for failure to state a claim. (Dec. on Mot. to
Dismiss, ECF No. 41.) The Court denied the motion to dismiss finding the
Plaintiffs sufficiently alleged CFHC’s standing and claims under Counts I, II, III,
and IV. (Id.)

The Court does not recall any evidence presented during the trial on exactly
when the consumer file was ultimately turned over to Ms. Arroyo, however, the
Court was left with the impression it was some time after this litigation began.
When the report was ultimately turned over is of no consequence to this decision
as explained in the Conclusions of Law. The Court mentions it solely for the
purpose of closing out the narrative.
8

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84.

After the clos e of discovery, the parties filed cross motions for summary

judgment and partial summary judgment. (Dec. on Mot. for Summ. J., ECF No.
194.) At the summary judgment phase, where the Court is required to construe
the evidence in the light most favorable to the non-moving party, the Court found
Article III standing for Ms. Arroyo, and permitted the following claims to proceed
to trial: (1) the FHA disparate impact claim on the basis of race or ethnicity, (2) the
FHA disparate treatment claim on the basis of race or ethnicity, (3) the FCRA
claim for the time period from June 30, 2016 and November 18, 2016, and (4) the
CUTPA claim. (Id.) Based on the evidence presented on summary judgment,
there was a genuine, now inexplicable, dispute of material fact as to whether
housing providers had access to the full information on criminal records matched
to an applicant. (Id.) The Court granted summary judgment for CoreLogic on the
FHA disparate impact and treatment claims on the basis of disability. (Id.)
85.

Prior to trial, the parties were given the opportunity to and did file motions

in limine. (ECF No. 209.) The parties both tried to introduce last minute evidence,
which was rejected by the Court because the proffered evidence was voluminous,
inexcusably beyond the deadline for such submissions, and would have delayed
trial due to the objections the parties made to the other’s proposed submissions.
(ECF No. 251.) Then, the case was finally ready for trial.
86.

The trial took place over ten days between March 14, 2022 and November 8,

2022.

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II.

CONCLUSIONS OF LAW
In a bench trial, the “judge acts both as determiner of whether a case meets

the legal requirements for decision by a fact-finder and as a fact-finder.” Cabrera
v. Jakabovitz, 24 F.3d 372, 380 (2d Cir. 1994). “[I]t is the Court’s job to weigh the
evidence, assess credibility, and rule on the facts as they are presented;” if the
“evidence is equally divided . . . ‘the party with the burden of proof loses.’” Mann
v. United States, 300 F. Supp. 3d 411, 418–19 (N.D.N.Y. 2018). “It is axiomatic that
in a civil action, the plaintiff bears the burden of proving all essential elements of
a claim.” Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 169 (D. Conn. 2003)
(citing to Ruggiero v. Krzeminski, 928 F.2d 558, 562 (2d Cir. 1991)). The Plaintiffs
must prove their allegations by a preponderance of the evidence, which “requires
the trier of fact to believe that the existence of a fact is more probable than its
nonexistence.” C=Holdings B.V. v. Asiarim Corp., 992 F. Supp. 2d 223, 232
(S.D.N.Y. 2013) (citing to Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9
(1997)).
The Court must now determine whether the Plaintiffs have met their burden
to prove (1) the FHA disparate impact claim on the basis of race or ethnicity, (2)
the FHA disparate treatment claim on the basis of race or ethnicity, (3) the FCRA
claim for the time period June 30 through November 18, 2016, and (4) the CUTPA
claim. The Court begins with the FHA claims.
A.

FHA Claims

Count I of the Complaint alleges CoreLogic’s policies and practices: (1)
have a disproportionate adverse impact on Latinos and African Americans as

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compared to similarly situated Whites; (2) have the intention to discriminate on
the basis of national origin and race; and (3) intentionally encourages, facilitates,
and assists housing providers’ unlawful discrimination in violation of the FHA.
The complaint alleges this conduct violates the FHA as codified in sections
3604(a) and (b) of Title 42 of the United States Code.
Before addressing the substance of the Plaintiffs’ arguments, the Court will
begin with the societal context and legislative history of the FHA, as described by
the Supreme Court in Texas Department of Housing and Community Affairs v.
Inclusive Communities Project, Inc., 576 U.S. 519 (2015). On July 29, 1967,
President Lyndon B. Johnson established through executive order the National
Advisory Commission on Civil Disorders, commonly known as the Kerner
Commission. Id. at 529; Exec. Order No. 11365, 32 FR 11111 (1966-1970 Comp.).
The Commission was tasked with investigating and making recommendations in
response to then-recent major civil disorders in the nation’s cities. Exec. Order
No. 11365.
On February 29, 1968, seven months after its establishment, the Kerner
Commission issued an extensive 424-page report defining the civil disorders it
was tasked to investigate, why they happened, and what could be done about it. 9
“[T]he Commission identified residential segregation and unequal housing and
economic conditions in the inner cities as significant, underlying causes of social
unrest.” Inclusive Communities, 576 U.S. at 529. The Commission recommended

Report of the National Advisory Commission on Civil Disorders (1968), available
at https://www.ojp.gov/ncjrs/virtual-library/abstracts/national-advisorycommission-civil-disorders-report.
9

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enacting “a comprehensive and enforceable open-occupancy law making it an
offense to discriminate in the sale and rental of any housing . . . on the basis of
race, creed, color, or national origin.” Id. at 529–30 (citing to Report of the
National Advisory Commission on Civil Disorders 91 at 263 (1968)).
In the week following Dr. Martin Luther King, Jr.’s assassination, Congress
swiftly passed the Civil Rights Act of 1968, which was signed by President
Johnson on April 11, 1968. Inclusive Communities, 576 U.S. at 530. Title VIII of
the Act, known as the Fair Housing Act of 1968, “was enacted to eradicate
discriminatory practices within [the housing] section of our Nation’s economy.”
Inclusive Communities, 576 U.S. at 539.
Under the FHA, it is “unlawful—(a) To refuse to sell or rent after the making
of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise
make unavailable or deny, a dwelling to any person because of race, color,
religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). In addition,
it is unlawful “To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color, religion, sex, familial
status, or national origin.” 42 U.S.C. § 3604(b). In recognition of the pervasive
and insidious problem of housing discrimination, the Supreme Court found the
“language of the Act is broad and inclusive,” and Congress’s priority can only be
carried out “by a generous construction.” Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 209, 212 (1972). See also Cabrera, 24 F.3d at 388 (“The provisions of
42 U.S.C. § 3604 are to be given broad and liberal construction.”).

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As an initial matter, the Court cannot address the discriminatory impact
and discriminatory treatment claims without deciding whether CoreLogic is
subject to the FHA. The relevant statutory language requires the Plaintiffs to
prove that CoreLogic, “make[s] unavailable or den[ies]” housing and/or sets
“terms, conditions, or privileges of sale or rental of a dwelling.” §§ 3604(a)–(b);
see also 24 C.F.R. § 100.70(b) (“It shall be unlawful, because of race, color, . . . or
national origin, to engage in any conduct relating to the provision of housing or
of services and facilities in connection therewith that otherwise makes
unavailable or denies dwellings to persons.”) The Plaintiffs have not met their
burden in showing that CoreLogic in any way sets the terms, conditions, or
privileges of rental.
Accordingly, the central question is whether CoreLogic “makes unavailable
or denies” housing. “Congress’ use of the phrase ‘otherwise make unavailable’
refers to the consequences of an action rather than the actor’s intent.” Inclusive
Communities, 576 U.S. at 534. “[T]he word ‘make’ has many meanings, among
them [t]o cause to exist, appear, or occur.’” Id. (citing United States v. Giles, 300
U.S. 41, 48 (1937)).
Courts have found that a defendant ‘otherwise makes [housing]
unavailable’ under the Fair Housing Act when the defendant engages
in a series of actions that imposes burdens on or constitutes
harassment of a protected class of residents or intended residents,
making it more difficult for the members of the protected class to
obtain housing or conveying a sense that the members of the
protected class are unwanted.
Gilead Cmty. Servs., Inc. v. Town of Cromwell, 432 F. Supp. 3d 46, 72 (D. Conn.
2019) (citing to cases involving landlord-defendants).

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Traditional forms of discrimination prohibited by the FHA include
circumstances where landlords discriminate against individuals based on their
protected status by outright refusing to rent to them, adopting burdensome
procedures and delay tactics, or claiming there are no units available when there
are. See Schwemm, Robert, Housing Discrimination Law and Litigation, § 13:2
Traditional discrimination: Refusals to sell, rent, and negotiate (Aug. 2022); see
also Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1033, 1039 (2d Cir. 1979)
(defendant-apartment cooperative, may be liable under the FHA for putting a
Black applicant through a burdensome screening process that it did not put a
similarly situated White applicant through); United States v. Hylton, 944 F. Supp.
176, 187 (D. Conn. 2013) (defendant reneged on agreement to sublet to the
plaintiff only after learning her race); Thurmound v. Bowman, 211 F. Supp. 3d 554,
564–65 (W.D.N.Y. 2016) (defendant-landlord liable for refusing to rent to the
plaintiff because she had two young children). Other forms of discrimination
prohibited by the FHA include steering, 10 exclusionary zoning, 11 and redlining. 12

Racial steering is the “directing [of] prospective home buyers interested in
equivalent properties to different areas according to their race.” Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 94 (1979) (addressing standing of
residents and a village to raise an FHA claim against real estate brokers and sales
personnel for steering prospective home buyers to different residential areas
according to race, in violation of the FHA).
11 The term “exclusionary zoning” encompassed “all exclusionary land-use action
by governmental authorities.” Schwemm, § 13:8 n.1. This includes confining
subsidized housing in primarily minority areas. See United States v. Yonkers Bd.
of Ed., 837 F.2d 1181 (2d Cir. 1987).
12 “Redlining” means “mortgage credit discrimination based on the
characteristics of the neighborhood surrounding the would-be borrower’s
dwelling.” Cartwright v. Am. Sav. & Loan Ass’n, 880 F.2d 912, 914 n. 1 (7th Cir.
1989)
10

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Schwemm, § 13:4 Traditional discrimination: Refusals to sell, rent, and negotiate.
See also Mhany Management, Inc. v. County of Nassau, 819 F.3d 581, 600 (2d Cir.
2016) (“The phrase ‘otherwise make unavailable’ has been interpreted to reach a
wide variety of discriminatory housing practices, including discriminatory zoning
restrictions . . . .”); Lynn v. Village of Pomona, 373 F. Supp. 2d 418, 426–27
(S.D.N.Y. 2005) (“[T]he prohibition against making a residence unavailable has
been applied to situations where government agencies take actions to prevent
construction of housing when the circumstances indicate a discriminatory intent
or impact against anticipated future residents who are members of a class
protected . . . .”); Mitchell v. Shane, 350 F.3d 39, 49–50 (2d Cir. 2003) (defendantbroker could be liable under the FHA for discriminating against minority
prospective purchasers if he violated local custom by failing to disclose the
existence of a competing offer to bidders because of their race); Wheatley
Heights Neighborhood Coal. v. Jenna Resales Co., 429 F. Supp. 486, 488 (E.D.N.Y.
1977) (finding that the FHA prohibits racial steering). All of these scenarios share
a common characteristic: that the defendants took affirmative steps to make
housing unavailable.
To state succinctly, before the Court can evaluate whether the Plaintiffs
have met their burden on the elements of their disparate impact and treatment
claims, the Plaintiffs must prove that CoreLogic denies or otherwise makes
housing unavailable. 13 42 U.S.C. § 3604(a).
The Plaintiffs here are not raising a claim of vicarious liability against
CoreLogic for the conduct of housing providers. See Hylton, 944 F. Supp. 2d at
190 (discussing vicarious liability under the FHA). Nor could they, because the
record does not show an agency relationship between CoreLogic and its housing
13

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The Plaintiffs raise two theories for how CoreLogic’s use of CrimSAFE
denies or makes housing unavailable. First, the Plaintiffs claim CrimSAFE
automatically and without an individualized assessment determines and reports
to a housing provider that an applicant is disqualified for rental housing based on
the existence of a criminal record. (Compl. ¶¶ 194–95.) Second, the Plaintiffs
claim CrimSAFE prevents housing providers from conducting an individualized
assessment of relevant mitigation information, which encourages, facilitates, and
assists housing providers in violating the FHA. (Compl. ¶ 196.) Based on the
facts presented during trial, the Court concludes that neither of the Plaintiffs’
theories of liability are supported by a preponderance of the evidence.
i.

Whether CrimSAFE Disqualifies Applicants

The Plaintiffs did not prove their first theory: that CrimSAFE disqualifies
applicants. The Court finds that the evidence at trial establishes CrimSAFE
matched applicants with data, but it was the housing provider—not CrimSAFE—
that decided whether an applicant is qualified for housing. The housing provider
controls the disqualification process by making four key decisions in how it uses
CrimSAFE: (1) who within their organization receives criminal reports, (2) what
criminal records are relevant for their decision, (3) how to review the records, and
(4) when to accept an applicant.

provider customers. Id. (agency relationship requires: “(1) the manifestation by
the principal that the agent shall act for him; (2) the agent’s acceptance of the
undertaking; and (3) the understanding of the parties that the principal is to be in
control of the undertaking.”) (citing to Cleveland v. Caplaw Enterprises, 448 F.3d
518, 522 (2d Cir. 2006)).
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Beginning with the first decision, the housing provider alone decides who
within their organization receives the full criminal reports. CrimSAFE defaults to
allowing everyone to receive the report, which can only be overridden by the
affirmative action of the housing provider. The Plaintiffs have not presented a
persuasive argument that a housing provider violates the FHA when it limits
which staff members have access to criminal records. Nor is such conduct
inherently wrong. A housing provider may justifiably limit access if the goal is to
prevent local onsite staff from taking adverse action against an applicant where it
is inappropriate to take such action against. A housing provider may wish to
leave the individualized assessment up to one or more people who are specially
trained to conduct a fair and unbiased individualized assessment. Also, it is not
uncommon for business organizations to limit what type of information some
employees have to protect its customers’ privacy interests. However, even if it
was unlawful, the Plaintiffs have not presented persuasive argument on how a
housing provider’s choice to manage its staff’s access to company records can
be imputed to CoreLogic.
Moving on to the second decision, the housing provider decides what
criminal records are relevant to their assessment of an applicant’s qualification. 14
The housing provider configures the look back periods with no significant input
from CoreLogic. The mere fact that CoreLogic provides some housing providers
To the extent the Plaintiffs are trying to argue that reporting any criminal
history is a violation of the FHA, they have failed to prove this. The HUD
Guidance that the Plaintiffs heavily rely on does not go so far as to say that
providing criminal history information violates the FHA. Rather, the Guidance
warns that it is what the housing provider does with that information that can
cause an FHA violation.
14

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with samples of other-housing provider configurations does not mean that
CrimSAFE disqualifies applicants. This is particularly true where CoreLogic staff
expressly tells housing providers that they are not providing an opinion or
recommendation as to what lookback periods are appropriate. Housing providers
have the power, at any point and without involvement of CoreLogic, to change
their configuration. This shows that CoreLogic does not play a significant role in
deciding what configuration the housing providers use.
As for the third decision, the housing providers decides how the criminal
records are reviewed. The housing providers control this process in several
ways. They determine what language populates in the CrimSAFE report for when
criminal records are matched to an applicant. The housing provider also sets
their own community screening policies. CoreLogic plays no role in the drafting,
reviewing, training, or enforcing of the housing provider’s community screening
policy. CoreLogic trains the housing provider staff to consult their organizations
tenant screening policies. The fact that some housing provider staff members fail
to comply with their training is not wrongful conduct that can be imputed to
CoreLogic.
The final decision made by housing providers is the ultimate one: whether
to accept or decline an applicant based on a criminal history. The fact that
WinnResidential employees used CrimSAFE in a way that was contrary to
CoreLogic’s training and their community policies is not conduct that can be
imputed to CoreLogic. This is especially true because there is no agency
between CoreLogic and WinnResidential. See supra n.13. The housing provider

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also decides when, and if so how, to convey its decision to decline an applicant.
That housing providers use the adverse action letter function in CrimSAFE does
not demonstrate any exercise of discretion or action by CoreLogic. The housing
providers, not CoreLogic, composes the letter and decides if, when, and how the
letter is to be sent to applicants. CoreLogic plays no appreciable role in the
adverse action letter process other than having a letter generating function in
CrimSAFE.
Next, no housing provider who uses CrimSAFE could reasonably believe
that CoreLogic makes housing decisions for them. CoreLogic training instructs
the housing provider to use its own community standards to assess an
applicant’s qualification for housing. The Court recognizes that some of the
advertising materials used terms such as “Decline,” seeming to suggest that
CrimSAFE makes decline decisions for housing providers. However, many of the
advertising materials that used “Decline” terminology were older and in conflict
with more recent materials. The screening report and adverse action letter
generated for Mr. Arroyo’s application did not use decline terms. More recent
materials demonstrated that CoreLogic advertised CrimSAFE’s value as the
filtering function, because it filters out records that housing providers would find
irrelevant to a housing decision. This is why customers pay more for CrimSAFE
than CrimCHECK.
CrimSAFE also uses default language clearly indicating to housing
providers that the housing provider makes the ultimate decision on housing. For
example, the screening report default language when criminal records have been

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found that match the housing providers configuration criteria is “Record(s)
Found,” and “Please verify the applicability of these records to your applicant
and proceed with your community’s screening policies.” By contrast, the results
of the credit screening, which are next to the results from the criminal screening,
does use the term “decline.” By juxtaposing credit results’ “Decline” language
with criminal results’ “Record(s) Found” language, CoreLogic demonstrates that
the “Record(s) Found” was not meant to and could not be read to demonstrate a
decision being made. Rather, “Record(s) Found” alerts the housing provider to
review the records and decide an applicant’s admission. CrimSAFE also has a
function allowing housing providers to report when an applicant is accepted even
when the applicant has criminal records. The fact that the housing provider can
unilaterally report an accept decision when criminal records are matched to an
applicant proves that no reasonable user would think CrimSAFE makes a housing
decision for the housing provider.
The adverse action letter sample provided in CrimSAFE also states
expressly that CoreLogic “did not make the decision to take adverse action and
are unable to provide specific reasons why adverse action was taken.” (Ex. 30.)
Housing providers who use the CrimSAFE adverse action email option should
reasonably understand that in the time between when the screening report
matches a criminal record to an applicant and when the letter is scheduled to be
emailed to the applicant, they are to conduct their assessment. The fact of the
delay anticipates and affords a housing provider the opportunity to review their
community standards as CoreLogic advises in its written material and training

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sessions. Further, simply because an applicant receives an adverse action letter
does not mean that the application for tenancy has been denied. This is because
the adverse action letter is sent to applicant’s with accepted applications if the
acceptance is made conditional, such as requiring a higher deposit for an
applicant who has a poor credit history.
CrimSAFE customers were also required to sign a contract, acknowledging
that CoreLogic is not an agent of the housing provider, and the housing provider
had the obligation to follow the FHA. CoreLogic also provides CrimSAFE
customers training on how to use the CrimSAFE program reminding the housing
providers that they are solely responsible for complying with all FHA
requirements. CoreLogic provided training to customer onsite staff to consult
with their own community standards when criminal records are found. Thus, it
would be unreasonable for a housing provider to think that CrimSAFE makes
housing decisions or in any way impedes on a housing providers ability to make
an individualized assessment.
The Court does not find Mr. Cunningham’s testimony that he believes
CrimSAFE decided whether an applicant was qualified for housing credible
because Mr. Cunningham was unsure about most of his answers and seemed to
have almost no memory of the events involving the Arroyos. To the extent his
memory was clear, the Court does not find persuasive Mr. Cunningham’s
understanding of CrimSAFE because Mr. Cunningham gave responses that were
inconsistent with more credible testimony from a more senior WinnResidential
employee, WinnResidential’s executive vice president Lynn Bora.

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To be clear, the Court is not saying that CoreLogic needs to be the ultimate
decisionmaker to be found liable under the FHA. An entity can be liable under the
FHA even when they are not the ultimate decisionmaker, such as with
exclusionary zoning and racial steering. In Mhany Management, Inc. v. County of
Nassau, 819 F.3d 581 (2d Cir. 2016), an affordable housing developer sued a city
and the county in which it was located alleging they violated the FHA.
Specifically, the developer argued that the city’s action in rezoning land for
single-family homes rather than multi-family homes was racially discriminatory
and the county failed to prevent it. Id. at 598. On summary judgment, the district
court allowed the claims against the city to proceed to a bench trial. Id. But, the
district court entered judgment for the county concluding that the county “was
not causally responsible for the alleged discriminatory conduct of” the city. Id.
On appeal, the Second Circuit affirmed judgment for the county, finding a lack of
evidence to establish a genuine issue of fact that the county was legally
responsible for the rezoning by the city. Id. at 620. The Second Circuit found that
“even if disapproving potentially discriminatory actions by municipalities does
fall within the ambit of the Commission authority, the County’s role in the ultimate
decision is to tenuous.” Id. at 621. Mhany teaches that, while an entity other than
a landlord or property seller can be liable for violating the FHA (such as the city),
the FHA does not reach entities whose involvement is “tenuous” (such as the
county). Id.
Here, the connection between CoreLogic and the decision on housing
availability is as tenuous, if not more, than the county in Mhany Management. In

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Mhany Management, the county had some power over the city’s conduct that
violated the FHA. They could have intervened, requiring the city to take
additional steps to override the county. The county did not do that, and yet, they
still were not found causally connected to the city’s FHA violation. CoreLogic
does not have any power to intervene over its housing provider customers. It
cannot direct a housing provider to accept an applicant; it is not even part of the
discussion when a housing provider decides to accept an applicant. CoreLogic
is not the agent or supervisor of their housing provider customers. CoreLogic
has no say in whether housing providers accept or decline applicants, it merely
provides the housing provider with publicly available information. Thus, the
Plaintiffs have shown only a tenuous connection between CoreLogic and the
housing provider’s decision, which is not enough to find CoreLogic “makes
unavailable or denies” housing.
Another example of non-ultimate-decisionmaker liability under the FHA is
in Cabrera, where the Second Circuit affirmed in relevant part a jury verdict
against landlords and a real estate brokerage firm for racial steering.
Racial steering is a practice by which real estate brokers and agents
preserve and encourage patterns of racial segregation in available
housing by steering members of racial and ethnic groups to
buildings occupied primarily by members of such racial and ethnic
groups and away from buildings and neighborhoods inhabited by
primarily members of other races or groups.
Cabrera 24 F.3d at 378 n.2. In Cabrera, the plaintiffs were “testers” of different
races that would pose as a prospective renter for the purpose of collecting
evidence of racial steering. Id. at 377–79. The Black testers were told there were
no apartments available by the real estate brokers and by the landlord directly,
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when White testers were told there were. Id. The jury found, and the Second
Circuit affirmed, liability against the individual brokers—directly, as agents for the
realty company, and as agents for the landlords. Id. at 379. Cabrera teaches that
individuals who do not make the ultimate decision on housing may be liable if
they engage in conduct that directly results in fewer housing opportunities on the
account of race (such as refusing to show available housing options). Id. at 390.
By contrast, CoreLogic’s computer program categorizes information as
programmed by the housing provider and instructs the housing provider to
review that information in light of the housing provider’s own community
standards in accordance with the law. The housing provider determines whether
to make housing available or not. Thus, unlike Cabrera, there is no direct
connection.
ii. Whether CrimSAFE Prevents Individualized Assessment
The Plaintiffs also claim that CoreLogic violates the FHA by preventing
housing providers from conducting individualized assessments. The Plaintiffs
have not proven this. While there was some testimony that the program may
allow a housing provider to decide to suppress the reports from all users within
an organization, there was also testimony that this is not the default setting, and
no customer has done that. This hypothetical is too speculative to justify liability.
CoreLogic trained housing providers to designate someone to receive records
and how to do that unilaterally in the program. To the extent the Plaintiffs are
arguing that CrimSAFE’s feature limiting full report access to some of an
organization’s staff is a violation of the FHA, the Court is unpersuaded as

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explained above. Because CrimSAFE gives the housing provider the power to
limit access to the full criminal record, the feature can hardly serve the role of
decisionmaker where the program’s default provides unlimited access.
2.

Conclusion

In summary, CoreLogic provides to its housing provider customers a fully
customizable criminal records reporting program. The housing provider decides
what criminal records are relevant to their decision on an applicant’s
qualifications, how to convey when disqualifying records are found, who within
their organization will have access to the full records, whether to accept an
applicant after considering their own community standards, and how they will
convey to an applicant when the application has been denied. The CrimSAFE
marketing materials, the CoreLogic training, and the CrimSAFE sample and
default language all inform CrimSAFE users that CoreLogic does not decide
whether an applicant is qualified for housing; rather, the decision lies with the
housing provider alone. For these reasons, the Court finds in favor of CoreLogic
on the FHA claims because the Plaintiffs have failed to prove by a preponderance
of the evidence that CoreLogic’s use of CrimSAFE denies or otherwise makes
unavailable housing pursuant to section 3604(a).
B.

Fair Credit Reporting Act Claims

Counts IV and V of the Complaint allege that CoreLogic violated the FCRA
as to Mikhail Arroyo. 15 In Count IV, Mr. Arroyo claims that CoreLogic violated

Third parties do not have remedies under the FCRA—a person who negligently
or willfully fails to comply with the FCRA “with respect to any consumer is liable
to that consumer” for damages including “actual damages sustained by the

15

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section 1681g of Title 15 of the United States Code in failing to disclose his
consumer report upon proper request. Count V raises two theories of liability
under the FCRA. First, Mr. Arroyo claims CoreLogic violated section 1681h by
failing to establish reasonable requirements for proper identification so as to
enable consumers subject to a conservatorship or guardianship and/or
consumers with disabilities without the legal capacity to execute a power of
attorney to receive a copy of their consumer file. Second, Mr. Arroyo claims
CoreLogic violated section 1681h by placing unreasonable preconditions on the
disclosure of consumer files to consumers subject to a conservatorship or
guardianship and/or consumers with disabilities without the legal capacity to
execute a power of attorney.
The FCRA claims raised in this case are applicable only to “consumer
reporting agencies.” The parties have stipulated CoreLogic is a consumer
reporting agency. Under the FCRA, “Every consumer reporting agency shall,
upon request, and subject to section 1681h(a)(1) of this title, clearly and
accurately disclose to the consumer” their consumer report. 15 U.S.C. §
1681g(a). Section 1681h(a)(1) requires consumer reporting agencies only
disclose the consumer report if the customer gives “proper identification.” In
other words, a consumer reporting agency is required to disclose to a consumer
their consumer report if the consumer (1) requests it and (2) furnishes proper
identification. The key dispute in this case centers on the proper identification
requirement.
consumer.” 15 U.S.C. §§ 1681n(a),1681o(a) (emphasis added). Thus, the only
plaintiff alleging damages under the FCRA is Mr. Arroyo.
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The FCRA does not define “proper identification” and there is very little
case law on what constitutes proper identification. See Howley v. Experian Info.
Sols., Inc., 813 F. Supp. 2d 629 (D.N.J. 2011) (denying summary judgment to a
defendant finding an issue of fact of whether the consumer reporting agency had
proper identification triggering its obligation to disclose); Menton v. Experian
Corp., No. 02 CIV 4687 (NRB), 2003 WL 941388 (S.D.N.Y. Mar. 6, 2003) (finding a
consumer furnished proper identification triggering the obligation to disclose by
sending a copy of his driver’s license, a bank statement with his name and
address, his law firm website, and a notarized copy of his signature).
Regulations promulgated pursuant to the FCRA require consumer
reporting agencies to “develop and implement reasonable requirements for what
information consumers shall provide to constitute proof of identity.” 12 C.F.R. §
1022.123(a). The regulations also require consumer reporting agencies to ensure
the information is sufficient to enable the consumer reporting agency to match
consumers to files and “[a]djust the information to be commensurate with an
identifiable risk of harm arising from misidentifying the consumer.” 12 C.F.R. §
1022.123(a). Reasonable information requirements for proof of identity might
include, for example, a “consumer file match” to full name, address, social
security number, and/or date of birth, or additional proof of identity such as
government issued identification documents, utility bills, or methods such as
“answering questions to which only the consumer might be expected to know the
answer.” 12 C.F.R. § 1022.123(b).

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1.

12 C.F.R. § 1022.137(a)(2)(iii)(C)

On summary judgment, the Court held that Ms. Arroyo did not submit
proper identification because she did not submit a conservatorship certificate
with an impressed seal, which is necessary for proper identification of a
Connecticut conserved person under the FCRA. Notwithstanding Ms. Arroyo’s
failure to submit proper identification, the Court allowed the FCRA claims to
proceed finding the Plaintiffs submitted sufficient evidence to overcome
summary judgment on a theory that CoreLogic violated its duty under 15 U.S.C. §
1681g by failing to comply with the requirements set forth in 12 C.F.R. §
1022.137(a)(2)(iii)(C).
Pursuant to 1022.137(a)(2)(iii)(c),
[a]ny nationwide specialty consumer reporting agency shall have a
streamlined process for accepting and processing consumer requests
for annual file disclosures. The streamlined process required by this
part shall: . . .
(2) Be designed, funded, implemented, maintained, and operated in a
manner that: . . .
(iii) Provides clear and easily understandable information and
instructions to consumers, including but not necessarily limited to: . .
.
(C) In the event that a consumer requesting a file disclosure cannot be
properly identified in accordance with the FCRA, section 610(a)(1), 15
U.S.C. 1681h(a)(1), and other applicable laws and regulations,
providing a statement that the consumers identity cannot be verified;
and directions on how to complete the request, including what
additional information or documentation will be required to complete
the request, and how to submit such information.
CoreLogic raises three arguments as to why the FCRA claims fail as a
matter of law. First, CoreLogic argues that Mr. Arroyo did not properly raise a
claim under 12 C.F.R. § 1022.137(a)(2)(iii)(C) in the complaint. CoreLogic notes
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that the only time this regulation was raised in this litigation prior to the Court’s
summary judgment ruling was in the Plaintiffs’ reply brief to CoreLogic’s
opposition to the Plaintiffs’ motion for summary judgment. Second, CoreLogic
argues that the regulation does not confer a private right of action and is not
traceable to the FCRA claims raised under sections 1681g and 1681h. Third,
CoreLogic argues that this regulation does not create a private right of action.
The Plaintiffs have not responded to CoreLogic’s arguments, rather they rely on
the Court’s summary judgment ruling finding that this regulation applies.
Upon further consideration, the Court agrees with CoreLogic on its
arguments as to the applicability of 12 C.F.R. § 1022.137(a)(2)(iii)(C). The
regulation was not raised as a cause of action in the complaint. See Mediavilla v.
City of New York, 259 F. Supp. 3d 82, 106 (S.D.N.Y. 2016) (“It is well settled that a
litigant may not raise new claims not contained in the complaint in opposition to
a motion for summary judgment.”). Rather, the regulation was only raised for the
first time in a reply brief without any meaningful analysis of its application to the
facts of this case. See Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993)
(“Arguments may not be made for the first time in a reply brief.”). In addition, this
regulation only applies to “nationwide specialty consumer reporting agenc[ies],”
which is defined under the FCRA as “a consumer reporting agency that compiles
and maintains files on consumers on a nationwide basis relating to-- (1) medical
records or payments; (2) residential or tenant history; (3) check writing history;
(4) employment history; or (5) insurance claims.” 15 U.S.C. § 1681a(x). The
Plaintiffs did not present evidence establishing that CoreLogic is a nationwide

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specialty consumer reporting agency. Finally, even if the Plaintiffs raised this
regulation as a basis for finding liability and the claim was supported by
evidence, the Plaintiffs have presented no legal authority or argument that this
regulation establishes a private right of action. See Lussoro v. Ocean Fin. Fed.
Credit Union, 456 F. Supp. 3d 474, 492 (E.D.N.Y. 2020) (“A regulation, by itself,
may not create a private right of action.”).
Therefore, the Court finds the Plaintiffs have failed to establish that 12
C.F.R. 1022.137(a)(2)(iii)(c) confers a private right of action; and in the absence of
such a right, there can be no liability. Notwithstanding the Court’s finding that 12
C.F.R. § 1022.137(a)(2)(iii)(c) does not apply, the Court still must determine if
CoreLogic violated the FCRA for the reasons properly raised in the Complaint
and argued at trial.
2.

Violation of 15 U.S.C. §§ 1681g, 1681h

As stated above, the FCRA requires a consumer reporting agency, like
CoreLogic, to disclose to a consumer their consumer report if the consumer (1)
requests it and (2) furnishes proper identification. 15 U.S.C. §§ 1681g,
1681h(a)(1). Mr. Arroyo argues that Ms. Arroyo did furnish proper identification.
Alternatively, Mr. Arroyo argues that CoreLogic violated the FCRA by failing to
establish reasonable requirements for proper identification and placed
unreasonable preconditions on providing proper identification.
On summary judgment, the Court concluded that, based on the undisputed
evidence, Ms. Arroyo never submitted proper identification for herself as a
conservator for Mr. Arroyo. (Summ. J. Dec. 73.) The document she submitted to

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prove she was a conservator for Mr. Arroyo, which could prove she was entitled
to request a copy of Mr. Arroyo’s consumer report on his behalf, was facially
invalid. The certificate of conservatorship states on its face it is not valid without
a court impressed seal. Ms. Arroyo never sent a copy of the certificate with a
court impressed seal. Meaning, Ms. Arroyo never sent a valid certificate of
conservatorship proving she was legally authorized to make the consumer report
request for Mr. Arroyo. Thus, the Court finds Mr. Arroyo has failed to prove that
proper identification was furnished.
However, even though Ms. Arroyo never furnished proper identification as
required under the FCRA, this does not end the inquiry into CoreLogic’s liability.
CoreLogic may be liable for violating the FCRA by making it impossible for a
consumer to exercise its rights to their consumer file. A consumer reporting
agency cannot circumvent its legal obligation to disclose a consumer report by
making it impossible for a consumer to properly request it. This is consistent
with the purpose of the FCRA, which is “to require reporting agencies to adopt
reasonable procedures for meeting the needs of commerce for consumer credit,
personnel, insurance, and other information in a manner which is fair and
equitable to the consumer, with regard to the confidentiality, accuracy, relevancy,
and proper utilization of such information in accordance with the requirements”
of the FCRA. 15 U.S.C. § 1681(b).
The Court finds that CoreLogic violated the FCRA by making it impossible
for Ms. Arroyo to request a consumer report for Mr. Arroyo. CoreLogic created
the impossibility on June 30, 2016, when it set as a condition for obtaining Mr.

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Arroyo’s consumer report the furnishing of a power of attorney. Furnishing a
power of attorney is legally impossible for Mr. Arroyo, who was severely disabled
and under a conservatorship. See Beaucar v. Bristol Fed. Sav. & Loan Ass'n, 6
Conn. Cir. Ct. 148, 157–58 (1969) (“A person who is not in a mental condition to
contract and conduct his business is not in a condition to appoint an agent for
that purpose. . . . . One who is non compos mentis is incapable of executing a
valid power of attorney.”). CoreLogic required Ms. Arroyo to produce a power of
attorney after she proffered what was ostensibly a conservatorship appointment,
albeit without a seal. While CoreLogic may have questioned the authenticity of
the conservatorship appointment, it did not direct Ms. Arroyo to submit one with
an original seal. Instead, CoreLogic required Ms. Arroyo to produce a document
that she legally could not produce, thereby making it impossible for her to obtain
her conserved son’s consumer report.
CoreLogic did not rescind this impossible condition until November 14,
2016, when it ultimately told Ms. Arroyo that a valid conservatorship certificate
would constitute proper identification. Thus, the time period during which
CoreLogic set an impossible condition for Ms. Arroyo to request a consumer
report on Mr. Arroyo’s behalf, and thus violating the FCRA, was between June 30,
2016 and November 14, 2016.
3.

Damages

Now that the Court has found CoreLogic violated the FCRA, the Court must
determine damages. The FCRA has two remedial provisions, one for willful

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noncompliance and one for negligent noncompliance. Mr. Arroyo claims that
CoreLogic’s conduct amounts to willful noncompliance.
Willful noncompliance under the FCRA includes both known and reckless
violations. SafeCo Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007). Proving
recklessness for establishing willful noncompliance is subject to the same
standards for proving recklessness in common law civil cases. Id. at 68–69. The
conduct must violate “an objective standard,” meaning an “action entailing ‘an
unjustifiably high risk of harm that is either known or so obvious that it should be
known.’” Id. at 68. Objectively reasonable misinterpretations of ones obligations
under the FCRA do not amount to willful noncompliance. See SafeCo Ins. Co. of
America, 551 U.S. at 69–70 (finding a violation that was not reckless because the
defendant’s reading of the statute had a foundation in the statutory text and was
sufficiently convincing to the district court that ruled in favor of the defendant’s
erroneous reading); Shimon v. Equifax Info. Services, LLC, 994 F.3d 88, 94 (2d
Cir. 2021) (finding a lack of recklessness where the defendant’s understanding
was reasonable, even if ultimately wrong).
Here, the Court finds that CoreLogic’s FCRA violation amounts to willful
noncompliance. It was objectively unreasonable for CoreLogic to think that
setting a condition entirely blocking a consumer’s ability to exercise their right to
their consumer report is a fair reading of the FCRA disclosure requirements. See
SafeCo Ins. Co. of America, 551 U.S. at 69–70. Setting such a condition does not
just set a high risk of harm, it ensures harm will come to people who are subject
to conservatorships or guardianships. This case is unlike SafeCo and Shimon

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where there was a fair, but ultimately erroneous, interpretation of the FCRA.
Here, no reasonable person reading the FCRA could interpret it to allow a
consumer reporting agency to completely thwart a consumer from obtaining their
consumer report by setting conditions for disclosure that could never be met.
This is not a one-off circumstance involving one or two employees who
made a mistake. The CoreLogic written policies, which reasonably were the
product of time and consideration, supported the position by the consumer
representatives that they needed a power of attorney. The policy only identifies a
power of attorney as a means of validating a third party’s agency over a
consumer. Nothing in the policy identifies circumstances such as Mr. Arroyo’s—
when someone suffers from a lack of capacity to designate an agent. This is an
entirely foreseeable circumstance as many people are subject to
conservatorships (also known as guardianships in some states). 16 In many
cases, including Mr. Arroyo’s, a person can lack physical and/or mental capacity
to make a valid power of attorney. CoreLogic’s written policies entirely
overlooked this group of people with the effect of denying Mr. Arroyo his right to
his consumer report.
Therefore, the Court finds that CoreLogic is subject to liability for willful
noncompliance with the FCRA.

16

See Eyewitness News Investigations finds alarming issues in Tri-State’s adult
guardianship systems, ABC7NY (Jan. 18, 2023), available at
https://abc7ny.com/investigation-adult-guardianship-law/12712558.
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Damages Calculation
Section 1681n, provides that willful noncompliance results in liability
in an amount equal to the sum of—(1)(A) any actual damages
sustained by the consumer as a result of the failure or damages of not
less than $100 and not more than $1,000 . . . (2) such amount of
punitive damages as the court may allow; and (3) in the case of any
successful action to enforce any liability under this section, the costs
of the action together with reasonable attorney’s fees as determined
by the court.
i.

Actual Damages

The Court starts with actual damages. CoreLogic argues that Mr. Arroyo
has failed to prove any actual damages because there was no evidence at trial
that, had Ms. Arroyo received Mr. Arroyo’s consumer report sooner, Mr. Arroyo
could have moved sooner. The Court agrees that Mr. Arroyo has not proven
actual damages stemming from the FCRA violation. Two reasons support this
conclusion.
First, the evidence does not show whether, and if so when, Ms. Arroyo
would have furnished proper identification for the consumer report had
CoreLogic not violated the FCRA as found above. There were significant delays
attributable to Ms. Arroyo in the processing of her request for the consumer
report. It took her approximately two months after CoreLogic sent the forms to
her for her to complete and return them to CoreLogic. Her submission was
clearly deficient as detailed above. It took her approximately two more months to
follow up with CoreLogic on the status of her request after the forms were
submitted. Thereafter, when she was clearly and plainly told that she needed to
furnish proper identification in the form of a valid conservatorship certificate, she
failed to provide the required documentation. CoreLogic called her three times
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over the course of the following month, and she did not return any of those
phone calls. There was no evidence presented that she ever furnished proper
identification even after she knew what was needed. Thus, the Court cannot
determine the effect of CoreLogic’s violation on when Ms. Arroyo would have
furnished proper identification, if ever.
Second, even if the Court could determine if and when Ms. Arroyo would
have given proper identification to CoreLogic and received Mr. Arroyo’s
consumer report, the Court cannot determine how receipt of that report would
have changed Mr. Arroyo’s ability to move into ArtSpace. There was no credible
testimony on whether a two-bedroom unit was available when she applied. 17 Nor
was there credible evidence that WinnResidential would have allowed Ms. Arroyo
to breach her lease agreement six-months early to move into one of their twobedroom units. If the Court assumed there was a unit available and
WinnResidential would have allowed the breach, the Court would then need to
assume that WinnResidential would have accepted Mr. Arroyo’s application
sooner. However, the Court cannot make that assumption because there was no
evidence why WinnResidential ultimately accepted Mr. Arroyo’s application. The
Court may be able to infer that bringing the CHRO action was at least a cause for
WinnResidential changing its decision and that, if the action was brought sooner,
then WinnResidential would have changed it decision sooner. However, there
It is unclear whether Mr. Arroyo could have lived with Ms. Arroyo in her onebedroom unit. Ms. Arroyo simply testified that her son was not going to move
into the one-bedroom unit with her, which is why she was looking to transfer to a
two-bedroom unit. (Tr. 3/14/2022 at 8:8–10. (“ Q: How was Mikhail going to live
with you in a one bedroom apartment? A: He wasn’t. I was looking into a two
bedroom.”))
17

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was no evidence showing why the CHRO action was filed when it was filed. The
CHRO action was filed approximately two months after Ms. Arroyo knew the
reason WinnResidential denied Mr. Arroyo’s application. The Court cannot
discern on its own that this delay was a typical pre-litigation progression or if
some other justification supported filing in February 2017 rather than any month
prior. There are simply too many unanswered questions for the Court to find by a
preponderance of the evidence that WinnResidential would have accepted Mr.
Arroyo’s application sooner had Ms. Arroyo received Mr. Arroyo’s consumer
report sooner.
Accordingly, the Court does not find any actual damages attributable to
CoreLogic’s violation of the FCRA.
ii.

Statutory Damages

Section 1681n provides for statutory damages of not less than $100 and
not more than $1,000. The Court finds that $1,000 in statutory damages are
warranted based on the seriousness and obviousness of CoreLogic’s violation,
as detailed above.
iii.

Punitive Damages

Section 1681n also provides that the Court may grant punitive damages.
“The purpose of punitive damages under the FCRA . . . is deterrence.” Northrop
v. Hoffman of Simsbury, Inc., 12 Fed. Appx. 44, 51 (2d Cir. 2001). Again, for the
reasons detailed above, the Court finds punitive damages are warranted due to
the seriousness and obviousness of CoreLogic’s violation. The Court finds the
appropriate punitive damages are three times the statutory damages—$3,000.

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iv.

Attorneys’ Fees

When it comes to attorney’s fees, it has long been held that the “American
Rule” governs: “that each party in a lawsuit ordinarily shall bear its own
attorney’s fees unless there is express statutory authorization to the
contrary.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Mr. Arroyo has
succeeded in his FCRA claim but not his FHA claims.

As mentioned above,

section 1681n of the FCRA states, “in the case of any successful action to
enforce any liability under this section,” the plaintiff may recover “the costs of
the action together with reasonable attorney’s fees as determined by the
court.” 15 U.S.C. § 1681n(a)(3). Mr. Arroyo is therefore statutorily entitled to
reasonable attorney’s fees.
Mr. Arroyo is permitted to submit a motion for reasonable attorney’s fees,
supported by a memorandum of law and evidence of reasonable attorney’s fees
incurred for the FCRA portion of this suit. See generally Hensley, 461 U.S. at
(addressing reasonable attorney’s fees under 42 U.S.C. § 1988 and explaining,
“Where the plaintiff has failed to prevail on a claim that is distinct in all respects
from his successful claims, the hours spent on the unsuccessful claim should be
excluded in considering the amount of a reasonable fee”). The Court recognizes
that some of the legal work may be indivisible between the two claims, see id. at
435, but also notes that the Supreme Court has advised “[t]he applicant should
exercise ‘billing judgment’ with respect to hours worked … and should maintain
billing time records in a manner that will enable a reviewing court to identify
distinct claims,” id. at 437. If a motion is filed, it must be accompanied by

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detailed billing records showing the time spent, work performed, and hourly rate
charged in six-minute increments. Mr. Arroyo may file his motion within 35 days
of this order. CoreLogic is afforded 21 days to respond to any such motion. Mr.
Arroyo is afforded 14 days to reply to CoreLogic’s response.
To summarize, the Court finds no actual damages, statutory damages in
the amount of $1,000, punitive damages in the amount of $3,000, and reasonable
attorney’s fees to be determined.
C.

Connecticut Unfair Trade Practices Act Claim

The Plaintiffs’ raised a claim under CUTPA in their complaint under
multiple theories of liability relating to CoreLogic’s use of CrimSAFE and Mr.
Arroyo’s file disclosure. In their pre-trial proposed findings of fact and
conclusions of law, the Plaintiffs have asserted a single theory of liability relating
to CoreLogic’s use of CrimSAFE. For the same reasons that the FHA claims
failed, the CUTPA claims relating to the use of CrimSAFE fail. All of the CUTPA
theories of liability relating to CrimSAFE require the Court to find that CrimSAFE
causes housing unavailability. As explained above, the Plaintiffs have not met
their burden and thus the theories of CUTPA liability premised on this claim fail
as well.
The Plaintiffs have abandoned their CUTPA claims as they relate to Mr.
Arroyo’s file disclosure because the Plaintiffs did not set forth the legal
framework for such a claim in its trial submissions and did not make specific
arguments during trial. See United States v. Livecchi, 605 F. Supp. 2d 437, 451

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(W.D.N.Y. 2009) (finding the failure to discuss claim in trial briefing constitutes
abandonment) (collecting similar cases).
Therefore, the Court rules in favor of CoreLogic on the CUTPA claims.
CONCLUSION
For the foregoing reasons, the Court finds in favor of CoreLogic on the
Plaintiffs’ FHA and CUTPA claims and finds for Mr. Arroyo on his FCRA claim for
$1,000 in statutory damages, $3,000 in punitive damages, and reasonable
attorneys fees in an amount to be determined.
IT IS SO ORDERED.
____/s/__________
Hon. Vanessa L. Bryant
United States District Judge
Dated this day in Hartford, Connecticut: July 20, 2023

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