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NEVAREZ v. O'CONNOR CHEVROLET

February 5, 2004.

JESUS and LETICIA NEVAREZ, on behalf of themselves and all others similarly situated, Plaintiff's,
v.
O'CONNOR CHEVROLET, INC. and EVERGREEN FINANCE COMPANY, Defendants



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Defendants O'Connor Chevrolet, Inc. ("O'Connor") and Evergreen Finance Company ("Evergreen") (collectively, "Defendants") move for summary judgment against Plaintiff's Jesus and Leticia Nevarez: (collectively, "Plaintiff's") on Counts l and II of the Second Amended Class Action Complaint. [Dkt 57.]*fn1 Defendants also request dismissal of Counts III through VII if summary judgment is granted on Counts I and II. For the reasons set out below, summary judgment in favor of Defendants is granted on Count l but denied on Count II, and Defendants' request to dismiss Counts III through VII is moot.*fn2 Page 2

JURISDICTION

  Federal jurisdiction exists under 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction). 28 U.S.C. § 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." A complaint that specifically invokes federal law "`arises under' federal law for purposes of § 1331." International Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Phillip Morris Inc., 196 F.3d 818, 822 (7th Cir. 1999). Federal question jurisdiction is proper for Counts I and II because Count I invokes the Truth in Lending Act, 15 U.S.C. § 1640(e), and Count II invokes the Equal Credit Opportunity Act, 15 U.S.C. § 1691e.*fn3 Supplemental jurisdiction exists over Counts III through VII under 28 U.S.C. § 1367. 28 U.S.C. § 1367 provides that, with the exception of actions brought solely under 28 U.S.C. § 1332:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a), Because the court has original jurisdiction over Counts I and II, and Counts III through VII are related state law claims, supplemental jurisdiction is proper. Although a court may decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c), none of the circumstances set forth in § 1367(c) exist in this case. The parties have consented to the jurisdiction Page 3 of a Magistrate Judge. [Dkt 7, 8.]

  FACTUAL BACKGROUND*fn4

  According to Plaintiff's, in late April or early May 2001, Leticia Nevarez contacted O'Connor via telephone, asked for a representative who spoke Spanish and was connected to Juan Soto ("Soto"). (Compl. ¶¶ 7-9.)*fn5 During that conversation, Leticia Nevarez; allegedly told Soto that she Page 4 wished to purchase a car and provided Soto with her social security number, income and address. (Id. ¶ 9.) Plaintiff's claim that Soto then pulled Leticia Nevarez's credit report and informed Leticia Nevarez that she was approved for $22,000 to $25,000 if she made a down payment of $3,000 to $5,000. (Id.)*fn6

  It is undisputed that on or about May 5, 2001, Plaintiff's met with Soto at O'Connor and began looking at the selection of cars. (Id. ¶ 10; Answer ¶¶ 10, 12,) Soto informed them that they did not qualify for a Tahoe, so the Plaintiff's selected a 1999 Mercury Mountaineer (the "Mountaineer"), (Compl. ¶ 12; Answer ¶ 12.) Plaintiff's allege that Soto went to talk to a manager and ultimately stated that "he could get them the price they wanted, and the best interest rate, and only Jesus Nevarez needed to sign the contract." (Compl. ¶ 13.) Defendants deny that allegation. (Answer ¶ 13.)

  Plaintiff's claim that they "arranged to leave" a $5,0000 down payment check but told Soto that checks were being deposited into the checking account and the $5,000 check would not clear for a few days. (Compl, ¶ 14.) According to Plaintiff's, Soto told them "not to worry" because no one at O'Connor would cash the check immediately. (Id.) Defendants deny those allegations. (Answer ¶ 14.) Jesus Nevarez signed a retail installment contract (the "May 5, 2001 contract"), which was Page 5 written entirely in English. (Pls.' LR Stmt., Ex. 10.)*fn7 Plaintiff's claim, however, that their conversations with Soto and all of the negotiations surrounding the May 5, 2001 contract were conducted in Spanish. (Compl. ¶¶ 15, 16.) Defendants deny those allegations. (Answer ¶¶ 15, 16.) After Jesus Nevarez signed the May 5., 2001 contract, Plaintiff's left O'Connor with the Mountaineer. (Compl. ¶ 17; Answer ¶ 17.) The copy of the May 5, 2001 contract provided to the court does not bear any signature on behalf of O'Connor. (App. A.)*fn8

  Sometime before May 17, 2001, Soto contacted Leticia Nevarez and informed her that the check she had written on May 5, 2001 was returned "NSF." (Compl. ¶ 18; Answer ¶ 18.) Leticia Nevarez returned to O'Connor on May 17, 2001, and tendered another $5,000 check, which Soto accepted. (Compl ¶¶ 19, 20; Answer ¶¶ 19, 20.) According to the parties, "[i]t appears" that O'Connor presented Plaintiffs' second $5,000 check to its bank for payment on May 18, 2001, (Compl. ¶ 21; Answer ¶ 21.)

  Plaintiff's claim that, on either May 18th or 19th, Soto called Leticia Nevarez and told her that the financing on the May 5, 2001 contract was "not able to be sold to the bank, i.e. [as]signed to a third party lender." (Compl. ¶ 22.) Soto also allegedly told Leticia Nevarez that she and her husband would need to return to the dealership and sign a different contract and that Mr. Nevarez would need Page 6 a co-signer. (Id. ¶ 23.) Defendants deny that allegation. (Answer ¶ 23.) Plaintiff's claim that, on May 19, 2001, they returned to O'Connor with their cousin, Juan Huerta, who was willing to serve as a co-signer. (Compl. ¶ 24.) But, when they arrived, Soto allegedly told Plaintiff's that he was able to get them financed through Evergreen and that Mr. Huerta would not need to co-sign, but they would need to provide an additional $3,000 for the down payment. (Id. ¶ 25.) Plaintiff's then signed a second retail installment contract (the "May 19, 2001 contract"), which was written entirely in English. (Id. ¶ 26; Pls.' LR Stmt., Ex. 10.) Plaintiff's claim that, like the negotiations surrounding the May 5, 2001 contract, the negotiations surrounding the May 19, 2001 contract were conducted entirely in Spanish. (Compl. ¶ 27.) Defendants deny that allegation. (Answer ¶ 27.)

  On or about November 7, 2001, a representative from Evergreen contacted Leticia Nevarez via telephone, (Compl. ¶ 30; Answer ¶ 30.) According to Plaintiff's, the Evergreen representative told Leticia Nevarez that she did not have insurance for the Mountaineer. (Compl. ¶ 30.) Plaintiff's insist that "[a]t no time were [they] in default of their obligation to retain insurance for the . . . Mountaineer." (Id. ¶ 31.) Evergreen allegedly repossessed the Mountaineer on or about November 13, 2001. (Id.)

  On November 17, 2001, Plaintiff's, through their counsel, sent a letter to O'Connor and Evergreen, which allegedly revoked acceptance of the Mountaineer and rescinded their contracts with O'Connor and Evergreen. (Id. ¶ 32.) Plaintiff's contend that their attorney also sent demand/notice letters to O'Connor and Evergreen in compliance with 815 Ill. Comp. Stat. 505/10a. (Id.) O'Connor and Evergreen did not make a counter-offer and stated that they did not violate any laws. (Id.; Answer at ¶ 32).

  At all relevant times, Evergreen was the assignee of the May 19, 2001 retail installment Page 7 contract and is the holder of the consumer credit contract, (Compl. ¶ 33; Answer ¶ 33). Caryl O'Connor is the agent, President and Secretary of O'Connor, and the agent and Secretary of Evergreen. (Compl. ¶ 33; Answer ¶ 33.)

  Plaintiff's assert seven counts.*fn9 Count I alleges that O'Connor violated the Truth in Lending Act. Count II alleges that O'Connor violated the written notice requirements of the Equal Credit Opportunity Act. Count III alleges that O'Connor and Evergreen violated Section 2N of the Illinois Consumer Fraud Act, Count IV alleges that O'Connor violated Section 2C of the Illinois Consumer Fraud Act. Count V alleges that O'Connor and Evergreen made certain misrepresentations and omissions in violation of the Illinois Consumer Fraud Act. Count VI alleges that O'Connor delivered the car in violation of the Illinois Consumer Fraud Act and Deceptive Business Practices Act, Count VII alleges that Evergreen wrongfully repossessed the Mountaineer

  LEGAL STANDARD

  Summary judgment is proper when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Indiana Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 654 (7th Cir. 2003). "Judgment as a matter of law is appropriate when a party `fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial,'" Indiana Funeral Dirs., 347 F.3d at 654 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "Indeed, if it is clear that a plaintiff will be unable to satisfy the legal Page 8 requirement necessary to establish its case, summary judgment is not only appropriate but required." Id.

  A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. In determining whether a genuine issue of fact exists, the court must construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving party. Id. at 255, However, the court "is ...


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