eleven memorandum order granting summary judgment to the southwest financial services under the fair credit reporting act given the limited time we will rest our arguments concerning the record evidence overlooked by the district court and the court's application of safe go on the briefing instead argument today focuses exclusively upon the district court's erroneous ruling that southwest had a reasonable reading of the f c r a which is a way that supports our position which is any written oral or other communication of any information by a consumer reporting agency bearing on a consumers on a consumer right that's the point that you opponents focus on and say this is not on a consumer it's on a piece of property with your response to that well response or our number one is that it's a lie by their own testimony their corporate executives testified that position that the report was about her that she was the subject of the report that's detail than our briefing well that's going to be true of any piece of property and you know people don't do generally title searches on a band alertly and that you know nobody claims are out there looking at it because it belongs to somebody so in a sense in the broadest sense every title search is on a person because some person is claiming it so it and that so it can't just be that broad kana well it wouldn't cover title searches and title reports in the way that both judges judgment he and judge during that you've mentioned because title searches are not used in connection with assessing the eligibility of somebody for credit or insurance be used for looking at the property and you know what do we do if they go ahead and use it in a way we don't anticipate but that's a lie by this record entirely first it's a lie by the district courts finding the district court agr that that they had written something really clear that said we understand that you just want to know about the property is the property income and we're going to give you just information about whether the properties cumbered and you're not going to use this for anything except understanding that we have an understand that they said yes that's a fair understanding and then they went ahead and used it in the way that you think is van i think we would they be liable for that well i would say they would be liable if  been nothing a company could do that just wanted to search property and report on the property to defend itself if people are going to use the product of their search in a way that they specifically tell people don't and in fact people promise not to well they're still going to get hit with that c r a under your reading of this as well not necessarily because as that definition provides after what i was beginning to read it's if it's a consumer report if it's argument are but your argument seems to be even if something is focused on property and even if the property report is one that they the producer of it extracts a promise recipient that  won't be used in creditor insurance underwriting if it's used that way for them they still have thicker responsibilities and they'll be liable for statutory damages made trouble i don't know that i'm saying that your honor because that's not this case a case that was would not apply if my daughter applies for a loan and i say i'll put up my property as collateral for that loan and the company does southwest as a current property owners report on my property then the fair credit reporting her a loan because of they not recede verification that real estate taxes on the collateral profiteer pay close quote that doesn't that sound like a statement that they're the southwest report may have raised the concern in your mind but it was but the southwest report was about the collateral property but that's not the record here your honor in fact the district court found that as a result of the southwest report she was denied the home equity line so that's not this case this case is very clear that as a result of the information reported about ms you just mis reported that she was she had a tax lien as a result of that she was not eligible contains information private property information but also contains information about that consumers paying habits if it if they report a whole or a part pertains to that consumer that's the language of congress the civically used the language in whole or in going to hit with this and then you use this language about paying habits the hypothetical positive we've chief judge we keep has a person who's who's horrible habits are maybe reflected in tons a liens on one of the pieces of property and a title search which show it but just a plain old not there's a southwest specially thing but a plain old title search shows all these leads you're saying that under under your logic why are they not swept into ficarra well again if it's if it's a title search which is used in connection with a with a consumer application for credit which is normally not the case right so a typical title search is on a seller sellers not would not fall under the f r c a would you know it would not because again that person is not applying for credit insurance or employment and why it's consistent with the series the s c area is basically very simple it what it wants to guarantee that it's if information is going to be sold about somebody that could impact their ability to get credit insurance or a job things that are important the person has the ability to get that information and see it and the spirit that all that nobody nobody's disputing home but has the beach house for you clear is applying for yet another line of credit on the encumbered property and a plain old title searches done in your view of the world a property search a title search in that circumstance revealing all the liens and all the problems is covered by their sorry and the title searching company gives that report is a credit reporting agency because the banker might look at it and say there's not enough off limits here it's in it as long as the person who's getting the search is the one applying for credit in your view of well only if it meets the same factors that this report did which it had information about her in the past that of the type of  property well that's when the property taxes are independent of the property it's not but the testimony in our case was that in addition to doing a search on the property address they also did a search on her name separately well i don't as we pointed out i don't think it undermines the argument at all in fact if anything that frank supports our position because the number one says nothing about him and he has to right where they reporting agency number two the even if applicable the guy frank would support our view because the report at issue here and southwest activities are used in connection with the impact coverage for a couple basic reasons number one employment background checking companies all the time they don't we take files when a consumer applies for a job and point to a company appointment background companies they go and obtain public record information on that consumer and the lever  consumer reports don't require any means of a final in order for for someone to be covered or company covered in addition there are plenty of other companies which are acknowledged c r a's such as resellers right somebody applies for a mortgage and t but in fact it is when it went to start with this the point that mr francis made and which is been bothering me a little bit is for a company that says it's just about the property we're just that they're looking at the property they did two things which weren't just about the property they went out and they found packs delinquencies they searched her name because there was no tax lien on the property right and they went out and they found a judgment against her son which was not a lien against the property they had to go out searching against any of you just the fall so if it's all just about the property how come they're out there searching on the name fujis and add that that there were well the way that find i think when the when you were the only one in your taxes with the city of philadelphia it does i mean it is against the property i mean that property if it were to go to sale the city of philadelphia would have first priority so it is against property do that do they not have to file anything with the property i don't believe so if you're out searching for tax the only one sees in the name of the person is it is it fair to say that you're just thinking about the property aren't you actually out there searching in the name of a person or the about that person well let's look at the lien situation the judgment because i think that actually illustrates everything in here yes there was this it's situation on the typo between  falls on her personal obligation and there comes a time when you need to then sell the collateral you know that lien would be a prior link and pain seeing would not have  pledge a property those are two distinct things there is a credit report that is issued on ms few just in this transaction it is a real credit report that's what peon seem to look at to determine whether assume that you're always going to get paid on your long you're never going to need security now that there is that is this trick or in this case didn't decide whether there applies to southwest's activities in this case they simply decided that  you seem to be suggesting is that the district court approach is ok and you don't have to worry whether southwest is actually violating figure because they're not violating it so not if we posit the the hypothetical sir that you are in violation your client's violating fichtner but just not willfully if we decline to answer the question then what's to prevent you from just staying out there violate figure or first of all two responses number one this is a reasonable reading issue under safeguards yet saying that it violated your saying we're not going to decide this i'm whether there was whether it's subject effect or precisely to you know how you answer the question and put to you which assume there is a violation and we think you approach you're asking us to don't we we've southwest than all the other players in that submarket whatever it is in violation of if you assume that there's a violation yes but you're but two things remember your honor the reason why we're here without needing to decide the coverage issue is because miss you just suffer no from the word go it would have been there were three complaints in this case i mean it was only when her when she testified that she got exactly what you want and when she testified that when i said did you cost off west to get this  somebody else took it but stick with me mr may i can i think we all understand your position on that i'm trying to get you to help us understand how we would write this let's say we wanted to agree with you we looked at all this and and perhaps the proposal of the mika's is we don't don't worry about that pay no attention to that violation behind the curtain if there is one if we are writing this do we have some obligation to address the violation or is it ok for us to leave potential violations happening on a daily basis out there because it's easier for us not to look at i think it's within the discretion of the court i think it would judge davis it is supported by other courts i think two justices of the supreme court safeco said there's no reason that actually reached the question of what of what the ultimate answer is on this whether it was an increase etc at the other justices went ahead and decided i think it's possible to do it either way you can certainly say you could certainly say that we read a fic differently than which is that there's no question people who own property have him in a business going on property that people own property and not only that judgments and liens get attached a proper east because of things that people do so there's no question about that so if there is if if i go out and i own a property in a judgment is entered against me and i have paid that judgment off then yes  perfectly will affect the property but that's been the notion that's been the very essence of title search and since time immemorial thanks searches since time immemorial have done searches against individuals and not just against the chain of title number but the record here is that they actually looked for information by name not just by address and that these that's what is troubling me why did it what you're saying is true of nature of these reports in general this report against the property that's the process if you go about doing it you make you do like my name yet what the testimony was clear that this is how this is what title searchers do whether it's a full title search in connection with a property with  love me that they do that routinely by name not just by address well i think the testimony is that they look at the address the fi the owner of the property they look at the address to find the owner of the property and then they look up the owner in the judge sure there's no judgment lien against the property that attaches to against the owner that attaches to the property i believe that was the process that was testified so first you look up the owner of the property by virtue of the property address and then you find who the owners are and if it's not a good sale you go back to the prior good sale and see what ever judgment liens attach to the property based on that but the intent is always only to look at what judge what was a property for example if the judgment haven't had a title report a regular big three title report will show pain judgments it was paid six months ago it'll still show somebody got a judgment against them and it took them a long time to pay that will not show up on  worthiness credit standing critical pasty character general reputation personal characteristics or mode of living which is used or expected to be used as a factor in establishing the consumer's anja good for credit because number one your honor there is a on that person then that is true but that is true for any title report for every full title report short title report it's true for anything if there is a judgment against me and i own the property and it is attached as a lien on the property one thing a type of title report has to be on the other the individual applicant for credit that that's in the act he or somebody else is pledging the property it's got to be on somebody else then you're right about that the sweeping impact that decisions no one has ever suggested before that that a title report is subject to the fair credit reporting act it relates to the property and but let me make this point clear the plaintiffs of number understood the impact millions and millions and millions of people refinance their their homes every year when you refinance you there's no sour and there's no buyer somebody is coming in to say that you were not going to that we're doing a title report on your property in connection with a refinancing transaction the borrower needs to know that it has your marketable pile on that there's no i don't know liens and it was so horrible about complying with that scenario well for one thing if there's a judgment that somebody's been sitting on for ten years because they figure that eventually the property is going to be sold and the person retires it dies which is frequently happens you can't report that under fix it limits judgments even open judgments the real state settlement act that is congress's regulating of title searches through that mechanism to zap zap have should that wait or think it all that congress has done something to regulate that piece surgeons where there's these big files that people maintain and instantaneously you know you're at a shopping center and somebody wants to get a credit card and they can write your credit score in three seconds that's not what this is they send the person to the courthouse to look up  title report is subject to fair kurt reporting that i think that's how he saw things now there's never been a company that isn't this business that subjects itself to the time report we know that because the plaintiff when they try to suggest that there are companies that do title reports you just wanted the lender is willing to accept greater risk it's willing to accept the fact that if i don't go back three generations of owners maybe i'm going to missed off but that's it's the less money at stake on the second  take that risk but it is simply a title report and there is no distinction if this court were to hold that this report is subject to a it that this report a subject than any title report is subject to the fair credit reporting act and the fact that this business about sellers i mean we're talking refinancings are clearly exactly the sort of situation we have here in which the owner of the title s and the lender is not going to give a loan unless a title report shows good and marketable title but again on the in persona mup occasion my personal obligation to repay that a regular credit the lien appears so how you get to that via and indeed that via him in the in the books you may have to look on names once you get the property owner's address what you ultimately end up with  those pages three seventy seven seventy eight that that are exactly the opposite of what plaintiffs argue so at the end of the day i don't think it's necessary to decide the coverage issue but if the are of interest when people are developing consumer reports and also of interest when they're developing a title report that makes were consumer reports well again it depends on what you mean by title because i think one of the things that as we pointed out the briefing that we're this or that where the or southwest is on a right here is a stablish ing or trying to argue that there is evidence that their report is a title report a fact if you look at the page at the bottom it says this report contains information from the public records and is not to be construed as an opinion of title title guarantee or title insurance policy is never they've never said they've never said that it's a full title one would expect them in a defensive  to make that clear but i'd be very interested in your response to something that's from a said he said if you if you three gentlemen there decide that you're going to say fick replies to reports like this wh really going to be saying is that figure is going to override the practice of title searches that's gone on since time immemorial and and not only will you up an industry you will make it impossible for people to do proper title searches because under fifty they can't report liens that are more than seven years old so you'll be doing not just a bad thing for the nice title searchers of this land you'll also be undermining the capacity of people to make rational business decisions because figure will prevent information from getting into title searches i'm interested in your response to that line of argument yes your honor the first is that mr may was wrong the f series permits the reporting of judgments as long as this action of limitations permits so he was incorrect about that saying ok well then take it on your terms assume the statute run does but there are other that does that mean that there's just nothing to do with that particular judgment that might be of significance to the title well no i guess i think if the report again there's no evidence that the report that at issue here and there was no record made of the district court reporter issue here is similar at all so that the retype the reports that are right there's no evidence of that that's that's not being responsive to my question and we've got limited time so i really want you to answer the specific question is he right or is he wrong in applying under circumstances to to a title search will make it so that standard title searching protocols can no longer be filed can only be followed i don't think that's correct because  because many companies have reported tax lien and judgment information in connection with other types of situations whether it's a job whether it's a credit application or whether it's decades are we into the sciri and and nobody's been able to present us with a case like this in your opponents say what they're asking for is unprecedented so if it's really so clear i mean i don't mean to denigrate you or anybody else but how come nobody thought of it before i think you why because consumers aren't given copies of the reports they don't see it and they don't know so they don't come to this is the first time say and that's the reality this report was confidential consumers don't see it this you just because she went back testimony she had at least five separate interactions with p and c back she went to the taxing office here in philadelphia she got a copy from them and said and i think what's the problem and even though she could prove that philadelphia wasn't saying that she well i think that's that's i would agree with that if i may just address gesture in your qualified immunity question because i think it's very relevant here i think the the rationale associate in requiring that the court answer the question anymore well they did backtrack by removing the mandate but they didn't say it's not useful and cases they said that it just shouldn't be required all of the time but in a case like this where you can assess the willfulness question without looking to see whether it's a close call and it's not a that and you glided over the street quickly but it's that as the this record said there's an astonishing lack of authority on this and it might be that that's just because the title searching folks like southwest perfectly secretive that they could replace the cia but maybe it's because this is a completely novel theory you're putting forth and it's novel because it's got some aspects to it that to give us pause well i would disagree with that premise because the theory is not while ok the fact that this particular company and that sells what it calls an her own record hasn't ensued that may not have happened before but as this court noted information and it can impact credit eligibility decision that let's look at the definition of the c r a let's look at the definition are we covered wow employment background checks cover landlords that issue or are companies which issue rental reports covered companies which sell information to insurance companies cover look at the breadth of this language to think and conclude that he does not apply to us at all that's really reckless they drove right into the heart of the se or his action here without regard to whether its light was red you can't look at these definitions in all of the cases that have that term and whether it's a report it was generated or issued a particular case and walk away saying this is not this  is this was a close call it's not the f serious very broad as i said before it is designed to allow consumers to be able to see and challenge information that's reported about them when it impacts their ability to get credit insurance or a job or other things that's what happened here that's the facts of this case and and that was not followed in this case and their decision to say i'm not covered as they said in a deposition was a reckless one thank you thank you very much