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Johnson v. Grossinger Motorcorp

June 29, 2001

BRIAN JOHNSON, PLAINTIFF-APPELLANT,
v.
GROSSINGER MOTORCORP, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 98 L 10854 The Honorable John Laurie, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

In September 1998, plaintiff filed a nine-count complaint against Grossinger Motorcorp, Inc. (Grossinger or defendant). Count I was dismissed. Defendant's motion for summary judgment as to counts II, III, VI, VII, VIII, and IX was granted. Defendant's motion for summary judgment as to counts IV and V was denied. Plaintiff later voluntarily dismissed counts IV and V. Plaintiff now appeals from the order granting defendant's motion for summary judgment as to counts II, III, VI, VII, VIII, and IX of plaintiff's complaint. The issues upon appeal are: (1) whether the trial court erred in granting summary judgment in favor of defendant relating to plaintiff's conversion claim; (2) whether the trial court erred in granting summary judgment in favor of defendant relating to plaintiff's wrongful repossession claim; (3) whether the trial court erred in granting summary judgment in favor of defendant relating to plaintiff's claim under the Truth in Lending Act (TILA) (15 U.S.C. §1601 et seq. (1994)); and (4) whether the lower court erred in granting summary judgment in favor of defendant relating to the plaintiff's Equal Credit Opportunity Act (ECOA) claim (15 U.S.C. §1691 et seq. (1994)).

We affirm.

BACKGROUND

On April 27, 1998, plaintiff went to Grossinger Motorcorp Inc., to purchase a vehicle. Plaintiff spoke to "Mark J." of Grossinger and informed him that he was interested in purchasing a car for under $12,000. Mark showed plaintiff a Chevy Blazer. After test-driving the Blazer, plaintiff spoke with Jim Wagner, the finance manager at Grossinger. Plaintiff asserts that Jim talked him into buying the Blazer even though it was above his price range, drew up the contract, and "signed everything." It was plaintiff's understanding that he was given conditional financing provided that he present certain documentation. The next day, plaintiff returned the Blazer pursuant to Grossinger's 36-hour exchange policy because "[t]he price range was too steep."

On April 28, 1998, plaintiff test-drove a 1992 Crown Victoria. After the test-drive, plaintiff decided to buy the car. He signed a promissory note for the $250 down payment, signed a "Retail Installment Contract," initialed the accompanying "Rider to Purchase Contract/Lease Contract" (Rider), and left with the Crown Victoria. Plaintiff traded in a vehicle which still had $600 in payments left on it. Approximately two days later, plaintiff returned to the dealership to retrieve the in-dash radio from his trade-in vehicle.

The "Retail Installment Contract" provides that the cash price of the Crown Victoria was $8,106.69, less the $250 down payment, less the $2,600 trade-in, leaving an unpaid balance of $5,256.69. Beginning on May 27, 1998, plaintiff was expected to pay 41 installments of $230.18 each to the order of Grossinger at the offices of a bank in Evanston, Illinois. The Rider provides, in pertinent part:

"The customer understands and agrees that Grossinger shall not be obligated to sell unless a third party agrees to purchase the motor vehicle retail installment contract signed by the customer with the purchase contract and this rider. Customer agrees to reasonably cooperate in obtaining such third party approval including but not limited credit application. The purchase contract and retail installment contract may be canceled at any time by Grossinger, if Grossinger determines that it cannot obtain third party approval and may be canceled by either party within 21 days if third party approval is not obtained on the agreed terms.

***

Customer agrees to return the vehicle within twenty-four hours of notice that Grossinger has not obtained third party approval and Grossinger agrees to return any down payment or trade-in by the customer. Grossinger may repossess the vehicle, with or without legal process, if customer refuses to return it within twenty-four hours." (Emphasis added.)

During his deposition, plaintiff testified that it was his understanding that he could not leave the dealership until financing had been secured and, therefore, he assumed that he had financing when he left Grossinger with the Crown Victoria. He also understood that defendant could cancel the contract if it could not secure financing for him and that it was his obligation to provide it with the necessary paperwork to secure such financing. He recalled that some of the paperwork needed was a list of references, a postmarked piece of mail, a utility bill, and a paycheck stub.

A few days after the purchase of the Crown Victoria, plaintiff returned with proof of insurance and $250 cash. Plaintiff recalled that he was supposed to bring in the paperwork requested by the manager when he brought in the cash. Although plaintiff was not positive that he brought in all of the paperwork, he thought he "had all of the necessary paperwork." He stated that he did not make a copy of the documents that he provided that day. Jim said, "[L]ook, this should work but call back." Plaintiff told Jim that he would call back to "make sure everything was okay." A day or two later, plaintiff called Jim "to make sure the paperwork was in order." Jim told him "so far so good."

About 20 days later, plaintiff went to the dealership because he had not received a payment book. Plaintiff asserts that during that visit, he paid $230.18 as his first installment payment and he was given a receipt. However, the receipt has not been produced.

Approximately 30 days after plaintiff took possession of the Crown Victoria, while he was at his place of employment, a co-worker informed him that someone was "messing with" his car. When plaintiff and three other co-workers went to the parking lot, he discovered a man lifting the vehicle with a tow truck. Plaintiff stated that he asked him what he was doing and the man responded that "he had paperwork to repossess the car." Plaintiff asked him where he acquired that paperwork, but the man did not respond. The man continued to lift the car and plaintiff told him "[W]ait a minute. Let me call Grossinger." Despite plaintiff's protest, the vehicle was towed away.

Plaintiff called Mark at Grossinger. Mark told plaintiff that he tried calling plaintiff a few times because he needed him to bring in more paperwork. Plaintiff told him that he would bring the paperwork after work. Plaintiff testified that Mark said to him, "[T]hey'll continue to repossess the car. Just bring in the paperwork, and the car will be ready." Plaintiff asked Mark if he could just drive the car to the dealership and take care of the paperwork then. Mark stated, "[D]on't worry about it. We'll just redo the whole contract."

Plaintiff testified that he brought with him the same paperwork he had provided to Grossinger on at least two previous occasions, which included a utility bill, references, his driver's license, and mail from his employer. When plaintiff arrived at the dealership, Mark was occupied. After waiting for an hour and a half, plaintiff told an unnamed manager that the repossessor damaged the vehicle and he should take $200 off of the purchase price. The manager said no. Plaintiff also told the manager that the Grossinger customer service was bad and that he just wanted his trade in back. The manager stated no, so plaintiff asked again. The manager told plaintiff that the car was being put on hold because he owed $600 toward the purchase. Plaintiff told him that he could not do that. Then the manager informed plaintiff that the car had been sold and to have his lawyer call him. Plaintiff then told the manager that he was tired of waiting and that he wanted to terminate the entire deal.

Plaintiff testified that his $250 down payment and his trade-in vehicle have not been returned. Plaintiff also asserts that the $600 balance on the trade-in was never paid and is now delinquent. After the repossession, plaintiff's mother told him that Mark called him on one occasion. Plaintiff recalled receiving a letter from General Motors Acceptance Corporation stating that his financing application for the Blazer had been denied. He stated that he never received a letter indicating that he had been denied financing for the Crown Victoria. Plaintiff asserts that he had no contact with Grossinger between the date of his first installment payment in May 1998 and the repossession.

Charles Settles, Jr., testified that 99% of the time, people leave with possession of a vehicle even though financing has not been obtained. Settles also testified that Grossinger arranges financing for more than 150 car deals a year. He stated that plaintiff's situation was a "very, very unusual case" because "he didn't cooperate with us in order to acquire him financing *** he didn't give us the documentation." Settles testified that Community Credit issued a "qualified denial" indicating that if plaintiff had a parent cosign, he could have been financed through them. Settles also stated that Grossinger did not send a letter to plaintiff indicating that Grossinger had applied to Community Credit on his behalf, or that he was denied financing due to minimal income and derogatory credit, or that Community Credit would consider him if he secured a parent consignor. Settles stated that Grossinger did not send plaintiff such a letter because it was his understanding that it was the "banking institution's" duty to do so.

The affidavit of James Wagner, the finance director for Grossinger at the time of plaintiff's purchase, provides: on or about the date of purchase, plaintiff stated that he understood that he had been conditionally accepted for financing by Long Beach Acceptance Corporation (Long Beach); plaintiff was provided a list of the material required by Long Beach; plaintiff "never provided all the documentation requested" by Long Beach; various personnel, including Wagner, specifically advised plaintiff that Long Beach needed the requested documentation prior to approving the third-party financing; and plaintiff did not make any payments to Grossinger or any other Grossinger entity pursuant to the installment contract in furtherance of the purchase of the Crown Victoria.

The affidavit of Robert Dean, the current finance director for Grossinger, provides: Grossinger actively sought third-party financing from four financial institutions relative to the Crown Victoria; despite numerous attempts to contact plaintiff at work and at home, plaintiff failed to provide the documentation required by Long Beach to approve his loan; third-party approval was not obtained; and Grossinger made no attempt to solicit any additional funds from plaintiff nor did it attempt to enter into any subsequent agreement of different terms than originally agreed upon relating to the Crown Victoria.

Robert Dean's second affidavit provides: he was not aware of any documentation in the possession of Grossinger that indicates that plaintiff made any payments to Grossinger in furtherance of the retail installment contract; plaintiff did not make any payments to Grossinger in furtherance of the retail installment contract; Grossinger paid the outstanding loan balance on plaintiff's trade-in after plaintiff promised to provide Long Beach with the requested documents for loan approval; and Grossinger had no involvement with Long Beach's decision to accept plaintiff's loan application on a conditional basis.

In September 1998, plaintiff filed a complaint against Grossinger Motorcorp, Inc. The complaint provides that the amount in controversy exceeds $50,000 based on the statutory, actual, and punitive damages alleged in counts II though IX.

Count I of the complaint alleges that defendant violated sections 10a(f), (g), and (h) of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(f), (g), (h) (West 1998)) and violated article IV, section 13, of the Illinois Constitution (Ill. Const. 1970, art. IV, ยง13). Count II alleges that Grossinger engaged in unfair or deceptive conduct in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 1998)) in that it misled plaintiff by telling him that it would attempt to obtain financing for plaintiff when Grossinger "did not make any applications to lenders" and Grossinger represented to plaintiff that it would pay off the remaining $600 owed by plaintiff on the ...


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