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ALLEN v. ARONSON FURNITURE CO.

August 12, 1997

BRENDA ALLEN, JERIESHA JONES and BENJAMIN ROULHAC, Plaintiffs,
v.
ARONSON FURNITURE COMPANY, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiffs Brenda Allen, Jereisha Jones, and Benjamin Roulhac have filed a two-count complaint against Aronson Furniture Company, asserting a federal claim under the Truth In Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), and state claims under the Illinois Retail Installment Sales Act, 81 5 ILCS 405/1 et seq. ("RISA"), and the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq. ("CFA"). The plaintiffs have filed a motion for class certification with Jones representing proposed Class A on the TILA count and the other plaintiffs representing proposed Class B on the RISA/CFA count. Additionally, the plaintiffs have moved for partial summary judgment and Aronson has filed a cross-motion for summary judgment. For the reasons set forth below, Aronson's motion for summary judgment is granted, the plaintiffs' motion for partial summary judgment is denied, and the plaintiffs' motion for class certification is denied as moot.

 I. Background

 Aronson Furniture Company is engaged in the retail sale of furniture and appliances, operating 10 stores in the Chicago area. See Def.'s 12(M) P 1. Aronson serves many low-income consumers who wish to purchase goods from Aronson on credit extended by Aronson itself. See id. P 16. When a customer enters one of Aronson's stores and expresses a desire to purchase goods on credit, the company's sales representatives follow a well-settled procedure. First, the sales representative runs an abbreviated credit check on the would-be customer free of charge. See Pl.'s 12(N) PP 31, 42-47. This credit check serves a preliminary screening function: people with particularly bad credit are discouraged from filling out an application for credit since it would almost certainly be denied. See id. Consumers who survive this preliminary screening move on to stage two, and are asked to fill out a credit application and sign a retail installment sales contract. See Def.'s 12(M) P 20. These documents disclose that the consumer will be charged a non-refundable "application fee" of $ 12.00, and Aronson's sales representatives are instructed to orally inform consumers of this fee as well. See id. PP 20-23. The fee is listed on the forms as part of the "amount financed" rather than as a "finance charge." See id. Ex. 2. Aronson representatives also request that all prospective customers make a downpayment at this time, but they do not insist on it and some significant number of customers decline to do so. See id. PP 29-30; Pl.'s 12(N) P 29. At stage three, the sales representative sends the completed forms to Aronson's corporate headquarters, where the final decision on whether to extend credit is made. See Def.'s 12(M) P 31; Pl.'s 12 (N) P 31.

 Aronson's ability to collect the $ 12 application fee charged to prospective customers is affected by two variables: (1) whether the customer's credit application was accepted, and (2) whether the customer made a downpayment. These variables can be viewed as resulting in four classes of customers:

 
(1) Customers who made a downpayment and their application for credit was approved. For this group, Aronson collects its application fee immediately from the downpayment.
 
(2) Customers who made a downpayment but their application for credit was denied. For this group, Aronson collects its application fee by deducting $ 12 when it returns the downpayment to the customer. See Def.'s 12(M) PP 33-36 (noting that Aronson collected $ 110,639 in this fashion between January 1994 and December 1996).
 
(3) Customers who made no downpayment but are approved for credit. For this group, Aronson collects its $ 12 once the customer begins making installment payments.
 
(4) Customers who made no downpayment and are denied credit. For this group, Aronson is not always able to collect its $ 12 fee, and it makes no serious effort to do so. See Pl.'s 12(N) P 37.

 The plaintiffs contend that Aronson's characterization of its $ 12 application fee as part of the "amount financed" rather than as a "finance charge," when combined with its failure to collect the $ 12 from people in group four, places the company in violation of TILA, RISA, and CFA. See Pl.'s Resp. Br. at 7. We examine this contention below.

 II. Summary Judgment Standard

 "A district court must grant summary judgment where the record before it shows that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995) (quoting FED. R. CIV. P. 56(c)). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If this burden is carried, the non-movant "must set forth specific facts showing that there is a genuine issue for trial" in order to defeat summary judgment, and cannot merely rest on the allegations contained in the pleadings. FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.

 In this case, the parties have filed cross-motions for summary judgment. Although the parties dispute the legal significance of certain facts, there are no material factual disputes that we can discern. This case therefore appears ripe for judgment on the paper record. One procedural question must be resolved, however: given that the plaintiffs have moved for certification of a class, should we rule on that motion first, or proceed directly to the merits? Ordinarily, the Federal Rules require courts to rule on class motions "as soon as practicable," that is, before deciding any of the merits questions. See FED. R. Civ. P. 23(c). But the Seventh Circuit, among others, has held that despite this directive, in certain cases it might be appropriate to rule on a summary judgment motion prior to ruling on the class motion. See Cowen v. Bank United, 70 F.3d 937, 941 (7th Cir. 1995) (Rule 23(c) "requires certification as soon as practicable, which will usually be before the case is ripe for summary judgment. But 'usually' is not 'always,' and 'practicable' allows for wiggle room."); Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1987); Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir. 1984); see also 7B Charles Alan Wright et al., FEDERAL PRACTICE & PROCEDURE, § 1785 at 127 (2d ed. 1986) ("In appropriate cases the court may use an accelerated summary judgment procedure prior to class certification to test plaintiffs' right to proceed to trial."). The only guidance these sources provide regarding when this approach might be appropriate is that if the plaintiffs' claims are without merit, summary judgment may properly precede a ruling on the motion for class certification: as the Sixth Circuit observed, "to ...


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