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January 5, 2004.


The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


Plaintiffs, John Payne and Paula Payne ("the Paynes"), filed a four-count complaint against defendant, Ken Diepholz Ford Lincoln Mercury, Inc. ("Diepholz Ford")*fn1, an automobile dealership, alleging violations of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq., the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505. Before the court are Diepholz Ford's Motion for Summary Judgment on all four counts and the Paynes' Cross Motion for Partial Summary Judgment on Count I, II, and IV. For the reasons set forth below, the court denies Diepholz Ford's Motion for Summary Judgment on all counts. The court grants the Paynes' Cross Motion for Partial Summary Judgment on Counts I and II and denies the Paynes' Cross Motion on Count IV. Page 2


  Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-599. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


  Diepholz Ford is an automobile dealership in Effingham, Illinois. (Def. L.R. 56.1 ¶ 2, 3.) Diepholz Ford "attempt[s] to help customers obtain financing on a regular basis." (Pl. St. of Add'l Facts ¶ 146.) Diepholz Ford uses customers' credit ratings to determine to which lenders it will submit a customer's credit application for financing. (Id. ¶ 48.) In arranging financing for its customers, Diepholz Ford employees engage in "rehashing." This is a process where the Page 3 Diepholz Ford employee negotiates the terms of financing with a finance company. (Id. ¶ 51.) Once the lender states the interest rate at which it will extend financing to the customer, Diepholz Ford has the discretion to set a higher interest rate. (Id. ¶ 52.)

  In mid-February, 2001, Paula Payne received a direct mailing from Diepholz Ford. (PI. St. of Add'l Facts ¶ 19-20.) The mailing, addressed to Paula specifically, stated that she had been

pre-selected to receive approval for an auto loan of up to $19,500* with little or no cash down . . . You must bring this letter, any trade-in, all decision makers and be ready to drive home in your new vehicle. . . . P.S. This will be the only notice you will receive. Failure to respond on or before above date's [sic] will result in termination and cancellation of your Pre-Qualification of up to $14,5000.
(Id. ¶ 21.) The mailing also included an "Instant Loan Certificate" bearing Paula's name and address, and stating, "ELIGIBLE UP TO 19,500.00" and "PRESENT FOR IMMEDIATE PROCESSING." (Id. ¶ 22.)

  In response to the mailing, Paula went to Diepholz Ford to purchase a vehicle on February 21, 2001. There she met Josh Stone, a Diepholz Ford salesman. (Id. ¶ 24.) After Paula selected a 1998 Ford Explorer, Stone took Paula to an office where Stone filled out an application for financing based on information provided by Paula. (Id. ¶ 25.) Paula then signed the application. (Id. ¶ 27.)

  Diepholz Ford then pulled Paula's credit report. (Id. 26.) Soon afterward, Paula met with Diepholz Ford finance manager Tony Mason ("Mason"). (Id. ¶ 27.) Mason is the "custom finance manager" at Diepholz Ford, which is "the finance manager that obtains loans for people who have had credit problems in the past." This position differs from the job of "finance manager" because Mason deals with "secondary lenders" that require more extensive Page 4 documentation. (Id. ¶ 57.) Mason asked Paula why her husband's name was not on the credit application. Paula referred to the direct mailing she had received from Diepholz Ford, which was addressed directly to her and said that she wanted to get the car in her own name. Mason informed her that "it wouldn't go through" in just Paula's name. Paula again referred to the direct mailing that she had received, but Mason again responded that the application "just won't" go through without her husband's credit information. (Id. 1 27.) In his deposition, Diepholz testified that Paula could not be financed alone because she had an outstanding automobile loan. (Id. ¶ 36.) Paula then provided John's credit information. (Id. ¶ 27.) She signed the credit application. (Paula Payne Dep. at 35.) After Paula waited approximately ten minutes, Mason informed her that he "didn't have an answer yet" and that Paula could go home and call Diepholz Ford later that afternoon to check on the status of her application. (Id.)

  Later that day, Paula called Mason. Mason stated that the loan had been approved and invited Paula to come back to Diepholz Ford. Paula informed Mason that she would be back on Saturday, February 23, 2001. (Pl. St. of Add'l Facts ¶ 28.) On February 23, Paula and John went to Diepholz Ford and spoke with Mason. Mason presented the Paynes with a Retail Installment Contract ("RIC") that stated that Household Automotive Finance Corporation ("Household") was the assignee of the RIC to whom installment payments could be made. The RIC contains a "Federal Truth in Lending Disclosure Statement" that states as Annual Percentage Rate of 20.95% and states that the payments would be $369.53 per month for sixty months. The RIC is dated February 23, 2001, and is signed by the Paynes and Diepholz. (Id. ¶ 30.) The Paynes also signed an "Affidavit of Spot Delivery" ("Affidavit"). The Affidavit stated, Page 5

I understand that if the transferor is unable to obtain credit approval on my loan within ten business days, and if I am unable to obtain financing on my own within 24 hours after notification from the transferor that my loan had been denied, I will be required to bring back the vehicle to the transferor.
The Affidavit also contained spaces in which to identify the year, make, model, and vehicle identification number of the vehicle, the amount of earnest money to be deposited by the transferee, the dealership name, the transferor's signature, and the date. All of these spaces were left blank. (Def. Mot. for Summ. J., Ex. L.) The Paynes paid $1,000 as a down payment and traded in their 1994 Mercury Cougar. (Def. Mot. for Summ. J., Ex. B.)

  At some point, John was asked to submit a driver's license. (Id. ¶ 29; Paula Payne Dep. at 21, 27-29.) John did not have his license with him that day. Paula told Mason that she would produce a copy of John's driver's license at a later date. (Paula Payne Dep. at 27.) Mason told the Paynes that they had been approved by Household for the purchase of the Ford Explorer. (P1. St. of Add'l Facts ¶ 31.) In fact, Diepholz Ford had not yet obtained financing for the Paynes' purchase. Household had only conditionally approved the Paynes' application in a faxed notice dated February 27, 2001, four days after the RIC was signed. (Id. ¶ 32.) Nevertheless, the Paynes drove away with the Ford Explorer, leaving their Mercury Cougar as a trade in. (Id. ¶ 33.)

  A few days after February 23, 2001, Mason spoke with Paula and said he needed John to sign a credit application. Paula informed him that John was working, and Mason told Paula that she could sign it instead. Paula then went to Diepholz Ford and signed John's name to a blank credit application. (Paula Payne Dep. at 37.) Diepholz Ford then sent John's credit application ...

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