In Snyder v. Nationstar Mortgage, LLC, 2015 WL 7075622, at *7-8 (N.D.Cal., 2015), Magistrate Judge Corley allowed a FCRA/Rosenthal Act claim past the pleadings stage. As to the FCRA claim, the Court found that the question of FCRA accuracy is determined past the pleadings stage.
To state a claim under the FCRA against…a furnisher of credit information, the [p]laintiff must allege that (1) [s]he contacted the [credit reporting agency]; (2) the [credit reporting agency] pursued the claim; and (3) the [credit reporting agency] contacted the [furnisher] regarding the dispute, triggering the [furnisher’s] duty to [comply with the terms of subsection (b).]” King, 2012 WL 4685993, at *5 (internal citation and quotation marks omitted). When a plaintiff brings a claim under section 1681s-2(b), she may base her allegations on negligent noncompliance under section 1681o, or willful noncompliance under section 1681n. Id. Under section 1681n, a plaintiff alleging willful violation of the FCRA may seek either actual damages or “damages of not less than $100 and not more than $1,000,” as well as punitive damages and reasonable attorney’s fees. § 1681n(a)(1)(A). “Because a plaintiff may recover actual or statutory damages under [section] 1681n, that section does not require a plaintiff to allege actual damages.” King, 2012 WL 4685993, at *5. Here, Plaintiff claims that Defendant’s willful refusal to remove the erroneous credit reports subjects Defendant to liability pursuant to section 1681n. (FAC ¶ 40.) She thus need not allege actual damages. Because Plaintiff conceded at oral argument that her FCRA claim is limited to the incidents occurring in 2013 and 2015, the Court addresses these incidents only. As set forth below, Plaintiff adequately alleges a section 1681s-2(b)(1)(E) claim with respect to both incidents.. . . To the extent that Plaintiff alleges that Defendant did not remove all of the inaccurate information on her credit reports, she adequately alleges a violation of part (E). See, e.g., Singh v. Discover Bank, No. 14–cv–05496–JCS, 2015 WL 1089443, at *6 (N.D. Cal. Mar. 4, 2015) (finding that the plaintiff adequately alleged a claim under FCRA because, in part, she alleged that the information in her account was incorrect and that the defendant did not correct the errors). An item on a credit report can be “incomplete or inaccurate” within the meaning of section 1681s-2(b) “because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” Carvalho, 629 F.3d at 890 (internal citation and quotation marks omitted). Given that Plaintiff alleges that the information contained in her credit reports was inaccurate or incomplete (FAC ¶¶ 1, 13-14, 18-20, 38), that the information impacted her ability to open lines of credit (id. ¶ 17), and that Defendant removed only some of the incorrect information (id. ¶ 36), she sufficiently alleges a violation of part (E). Cf. Giovanni v. Bank of Am., Nat. Ass’n, No. C 12-02530 LB, 2012 WL 6599681, at *5 (N.D. Cal. Dec. 18, 2012) (granting motion to dismiss because the plaintiff failed to allege that the information the defendant reported was incorrect, and thus the defendant had no obligation to fix the report). Whether the information was, in fact, accurate is a question of fact to be resolved at later stages of litigation. See, e.g., Wang v. Asset Acceptance LLC, No. C 09-04797 SI, 2010 WL 2985503, at *7 (N.D. Cal. July 27, 2010) (“The question of whether [the defendant] acted appropriately in this case [under section 1681s-2(b)(1)(E)]…is a question of fact to be resolved at a later date.”). Thus, Plaintiff sufficiently alleges a claim for violation of part (E) in connection with Plaintiff’s dispute of negative credit reports in 2013.
The Court also found that the Plaintiff also had pleaded a Rosenthal harassment claim based on the number of calls alleged.
“Courts have required factual particularity regarding the dates and contents of alleged communications for [RFDCPA] claims.” Lopez v. Prof’l Collection Consultants, No. CV 11– 3214 PSG (PLAx), 2011 WL 4964886, at *2 (C.D. Cal. Oct. 19, 2011) (granting motion to dismiss because, in part, the plaintiff neither alleged specific dates of contact by the defendant nor a range of dates); see, e.g., Bernardi v. Deutsche Bank Nat’l Trust Co. Am., No. C–11–05453 RMW, 2013 WL 163285, at *6 (N.D. Cal. Jan. 15, 2013) (dismissing the plaintiffs’ FDCPA claim because they did not identify any specific dates, statements, or time period of the defendants’ conduct); Gates v. Wachovia Mortg., FSB, No. 2:09–cv–02464–FCD/EFB, 2010 WL 2606511, at *4 (E.D. Cal. June 28, 2010) (dismissing an RFDCPA claim where complaint alleged date and time of six collection calls, but failed to allege nature of the calls). A plaintiff must allege more than a defendant’s “communications” or a “high volume of phone calls” to state a claim under the RFDCPA. Fullmer v. JP Morgan Chase Bank, N.A., No. 2:09-cv-1037 JFM, 2010 WL 95206, at *7 (E.D. Cal. Jan. 6, 2010); cf. Blaxill v. Arrow Fin. Servs., LLC, No. 5:10–CV–04520 JF (PSG), 2011 WL 1299350, at *1 (N.D. Cal. Apr. 4, 2011) (holding that the plaintiff failed to state a claim because the complaint stated only that the defendant engaged in “communications”). Indeed, “[w]hether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.” Joseph v. J.J. Mac Intyre Cos., LLC, 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). Courts differ, however, as to the amount or pattern of calls sufficient to constitute intent to annoy, harass, or oppress. See Krapf, 2010 WL 2025323, at *3-*4 (discussing what evidence is sufficient to raise a triable issue of fact at summary judgment stage). Although there is no bright-line rule, courts generally find certain conduct to constitute harassment. See Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1227 (E.D. Cal. 2010). Examples of harassing behavior include “making a high volume of calls, calling the debtor immediately after hanging up, calling at odd hours, calling at the debtor’s place of employment, or calling multiple times in a single day.” Johnson v. Portfolio Recovery Assocs., LLC, No. CV 12–4261 PSG (AJWx), 2013 WL 10156241, at *7 (C.D. Cal. June 24, 2013); see, e.g., Crockett v. Rash Curtis & Assocs., 929 F. Supp. 2d 1030, 1032-33 (N.D. Cal. 2013) (denying motion to dismiss FDCPA and RFDCPA claims because the plaintiff alleged that the defendant called her at least 22 times even though the defendant likely realized from the contents of her outgoing answering-machine message that it was calling the wrong number); Stirling v. Genpack Servs., LLC, No. 2:11–cv–06369–JHN– MANx, 2012 WL 952310, at *24 (C.D. Cal. Mar. 19, 2012) (denying summary judgment because a reasonable trier of fact could conclude that making 649 calls to the plaintiff over 115 days, with an average of five to six calls per day, every day, was sufficient to establish liability under the FDCPA); Jiminez v. Accounts Receivable Mgmt., Inc., No. CV 09–9070–GW (AJWx), 2010 WL 5829206, at *5 (C.D. Cal. Nov. 15, 2010) (noting that an “unacceptable pattern of calls” would include, among others, calling outside of the hours of 8 a.m. to 8 p.m., regularly calling multiple times per day, and calling back after the plaintiff had spoken to or hung up on one of the defendant’s agents); Arteaga, 733 F. Supp. 2d at 1228 (noting that calling numerous times per day and calling the debtor outside of her home or calling her family members could constitute harassment under the FDCPA). Further, a debt collector may harass a debtor by continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication. Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir. 1994). This analysis applies equally to FDCPA and RFDCPA claims. Arteaga, 733 F. Supp. 2d at 1229; see also Joseph, 238 F. Supp. 2d at 1158.. . . *8 Here, the FAC does more than merely state that Plaintiff received calls from Defendant. Cf. Blaxill, 2011 WL 1299350, at *1. Plaintiff alleges that she received an average of eight to ten automated calls a day, seven days a week, between the hours of 5:00 a.m. and 11:00 p.m. (FAC ¶ 46.) Although Plaintiff does not provide specific dates, she does provide a range of dates—between July 2012 and late 2014—and alleges that she received calls every day. See, e.g., Crockett, 929 F. Supp. 2d at 1031, 1033 (denying motion to dismiss RFDCPA claim even though the plaintiff only alleged that the defendant called her at “various” times); cf. Lopez, 2011 WL 4964886, at *2 (granting motion to dismiss RFDCPA claim because the plaintiff did not allege the period of time during which the defendant’s conduct occurred). With regard to the content of the calls, Plaintiff alleges that Defendant “demand[ed] Plaintiff” to call back, and when she did, Defendant “refused to speak to Plaintiff on the premise that she was represented by counsel.” (FAC ¶ 46.) Plaintiff further alleges that “[d]espite Plaintiff’s and her alleged counsel’s repeated efforts in advising Defendant that this was not the case and that Defendant needed to communicate with Plaintiff, this repeated pattern of harassment did not cease.” (Id.) Plaintiff thus alleges that Defendant called multiple times in a single day, every day, over a two-year period; called at odd hours; and continued calling even though Defendant refused to speak with her. As such, Plaintiff specifies the period over which the calls occurred, the content of the calls, and the harassing nature of the calls. These facts are sufficient to state a claim under the RFDCPA.