were incurring an upcharge." Bambilla, 1996 U.S. Dist. LEXIS 7029, 1996 WL 284954, at *5.
There is clearly a genuine question on this factual issue. Both sides have pointed to numerous pieces of evidence in support of their respective positions. Neither side's proof is conclusive. Therefore, we find that we may not grant summary judgment to either side on the question of causation.
C. Defendant Did Not Intend Plaintiff to Rely on Misrepresentation
Defendant next argues that the plaintiff has failed to show any evidence of Union Nissan's intent to induce Plaintiff's reliance on the misrepresentation. Plaintiff makes a number of arguments in response. However, we need not get to these arguments.
It is true that intent to induce reliance on a misrepresentation is an element of any action under the ICFA. See, e.g., Mackinac v. Arcadia Nat'l Life Ins. Co., 271 Ill. App. 3d 138, 648 N.E.2d 237, 239-40 (Ill. App. 1 Dist. 1995, 207 Ill. Dec. 781); Lidecker v. Kendall College, 194 Ill. App. 3d 309, 550 N.E.2d 1121, 1124 (Ill. App. 1 Dist. 1990, 141 Ill. Dec. 75). The intent behind the presentation of the amount paid for the service contract seems almost self-evident: it is quite possibly an effort to disguise the additional markup. Plaintiff argues that its expert can attest to this. We do not need an expert to recognize the existence of a genuine issue of fact as to the defendant's intent. Therefore, we must deny the motion for summary judgment on these grounds.
D. No ICFA Liability Where Contract Complies With TILA
Union Nissan argues that it cannot be liable under the ICFA because its contract complied with TILA. For this latter premise, it relies on the issues discussed in Parts I.B. and I.D., supra, in which Union Nissan argued that it complied with TILA because FRB Commentary sanctioned its conduct, and because it complied with the FRB's Model Form. It may be true that the ICFA recognizes compliance with TILA as a defense to an ICFA claim. Compare 815 ILCS 505/10b(1); Aurora Firefighter's Credit Union v. Harvey, 163 Ill. App. 3d 915, 516 N.E.2d 1028, 1033-34 (Ill App. 2 Dist. 1987, 114 Ill. Dec. 873), appeal denied, 522 N.E.2d 1240 (Ill. 1988); with Grimaldi v. Webb, 282 Ill. App. 3d 174, 668 N.E.2d 39, 43 (Ill. App. 1 Dist. 1996, 217 Ill. Dec. 854), appeal denied, N.E.2d (Ill. Dec. 4, 1996). This point is moot, however, because we have rejected above the same TILA arguments that Union Nissan relies upon here. Therefore, we must also reject this argument.
Motion to Strike
Union Nissan has filed a motion to strike two attachments to the plaintiffs' statement of facts. Specifically, it moves to strike the affidavit given by Mr. Sutton, whom plaintiffs claim is an expert, and the report of the Attorney General of New York. The plaintiffs oppose this motion. We have not relied on either attachment in reaching the above opinion, so we need not presently rule on this motion. We will deny this motion without prejudice to the defendant's right to raise these issues in the future.
For the reasons discussed above, the defendant's motion for summary judgment is granted in part and denied in part, the plaintiffs' motion for summary judgment is denied, and the motion to strike is denied without prejudice.
Charles P. Kocoras
United States District Judge
Dated: February 4, 1997
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