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LACEY v. WILLIAM CHRYSLER PLYMOUTH INC.

February 20, 2004.

MICHELLE LACEY, Plaintiff,
v.
WILLIAM CHRYSLER PLYMOUTH INC. and DAVID GREATHOUSE, Defendants



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

MEMORANDUM OPINION AND ORDER

Plaintiff, Michelle Lacey ("Lacey"), has filed a six-count complaint against defendants, William Chrysler Plymouth ("William Chrysler"), an automobile dealership, and David Greathouse ("Greathouse"), alleging violations of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691 et seq. (Count I), the Fair Credit Reporting Act ("FCRA")*fn1, 15 U.S.C. § 1681 et seq. (Count II), the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. (Count III), the Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679 et seq. (Count IV), and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq. (Counts V and VT). Defendants have filed a counterclaim alleging that Lacey breached her contract with William Chrysler and delivered a bad check in violation of 720 ILCS 5/17-la and 5/17-1(B)(d). Lacey has not answered or otherwise responded to the counterclaim. Lacey has filed a Motion for Partial Summary Judgment on Liability on Counts I, III, V and VI,*fn2 Page 2 Defendants have filed a Motion for Summary Judgment on Counts I, III, and IV and also seek entry of default judgment on their counter-complaint. This court has jurisdiction over Counts I-IV pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the remaining counts and counterclaims pursuant to 28 U.S.C. § 1367(a). For the reasons stated below, Lacey's Motion for Partial Summary Judgment is granted as to Counts I and III and denied as to Counts V and VI. William Chrysler's Motion for Summary Judgment is denied. However, because Lacey has failed to answer or otherwise respond to defendants counterclaims, the court enters default judgment on liability in favor of defendants on those counterclaims.

SUMMARY JUDGMENT STANDARDS

  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 Page 3 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).

  FACTS

  William Chrysler is a car dealership in Chicago, Illinois. William Chrysler is involved in credit evaluation, negotiation of credit terms and the sale of credit contracts to third parties in the secondary market. (Pl. L.R. 56.1 ¶ 42.) However, William Chrysler does not make any ultimate decisions regarding who is accepted and rejected by credit lenders. (Def. Resp. to Pl. L.R. 56.1 ¶ 42.) William Chrysler handles more than 150 credit applications for consumers per year. (Pl. L.R. 56.1 ¶ 41.)

  On Saturday, June 8, 2002, Lacey received in the mail an advertisement from William Chrysler that promised a prize of between $10 and $10,000 simply for going to William Chrysler. (Pl. L.R. 56.1 ¶ 6.) In response to the advertisement, Lacey went to William Chrysler that day. She drove to William Chrysler in her 1997 Pontiac Transport. (Id. ¶ 6.) When Lacey arrived, she saw two women sitting at a table. She asked them for her prize and received an envelope containing $10. (Id. ¶ 8.) The women at the table introduced Lacey to a salesman, Jay Hester. (Id. ¶ 10.) Hester proceeded to show Lacey a Chrysler Town & Country minivan, priced around $25,000. (Id. ¶ 12.) Lacey test drove the Town & Country, liked it, and inquired about purchasing it. (Id. ¶ 13.) After Hester explained to Lacey what she needed to purchase the vehicle, Lacey filled out and signed a credit application. (Lacey Dep. at 31.) Hester then pulled Lacey's credit report. (Id.) Soon thereafter, Hester came back and told Lacey that she did not Page 4 qualify to purchase the vehicle because she had a recently discharged bankruptcy.*fn3 (Id.; Pl. L.R. 56.1 ¶ 14.) Hester did not give Lacey a written notification of why she did not quality to purchase the vehicle. (Pl. L.R. 56.1. ¶ 15.)

  Lacey claims that she then informed Hester that the car she was currently driving, the 1997 Pontiac Transport, was not included in her bankruptcy proceedings. Because she needed the car to get to work and to transport her family, she had reaffirmed that debt and was going to continue making payments on it. (Id. ¶ 16.) However, Lacey also states that Hester was under the impression that the debt on the Transport was discharged in bankruptcy. (Lacey Dep. at 39; Def. L.R. 56.1 ¶ 14.)

  Hester then told Lacey that she could qualify for a less expensive vehicle, a Plymouth Voyager mini van, priced around $19,000. He told her that she could get the Voyager for a $750 cash down payment.*fn4 (Pl. L.R. 56.1 ¶ 15.) Lacey did not have the money for the down payment at the time, so she returned to her house and gathered her check stubs, her bankruptcy discharge, Page 5 and her reaffirmation papers. She then went to her father's house and borrowed $350 cash. (Id. ¶ 18.)

  Lacey returned to William Chrysler that day and gave the money and paperwork to Hester. Hester reviewed the paperwork and then took it to Greathouse, a finance manager. Greathouse examined the paperwork and asked Lacey when she could deliver the remaining $400 of the down payment. (Id. ¶ 19.) Lacey replied that she could deliver the remaining $400 the following Monday morning. Greathouse told Lacey to leave a check post-dated to July 13, 2002, for $750, the balance of the $1500 down payment. (Id. ¶ 20.) Lacey claims that at the time she wrote the check, she knew that she did not have sufficient funds in her bank account to cover the check. However, she claims that she anticipated returning to work and was expecting sufficient funds to be deposited to her account on July 7, 2002. (Lacey Dep. at 79.)

  Lacey claims that Greathouse gave her a piece of paper directing her to tell any finance company that called that her monthly income was $3200 and that she had put $500 down. (PL L.R. 56.1 ¶ 21.) Greathouse denies this. (Greathouse Aff. of July 21, 2003 ¶ 12.) Greathouse then had Lacey sign a blank retail installment contract ("RIC").*fn5 He told her that he would try to get her a monthly payment right around what she was paying for her Pontiac Transport. (Pl. L.R. 56.1. ¶ 22.) Other than the receipt for her $350 down payment, Lacey received no paperwork on that day.*fn6 (Id. ¶ 23.) Page 6

  Lacey then drove away in the Plymouth Voyager and left her Pontiac Transport at William Chrysler. (Id. ¶ 24.) She claims that Hester explicitly told her that she could trade in the Transport. (Id. ¶ 25.) However, Greathouse claims that Williams Chrysler never agreed to accept the Transport as a trade in. (Greathouse Dep., July 21, 2003 ¶ 10.)

  Lacey and her children returned to William Chrysler the following Monday, June 10, 2002, with the $400 she still owed on her down payment. (PL L.R. 56.1 ¶ 26.) Hester brought the Pontiac Transport from the lot, and Lacey and her children cleaned out their belongings from the Transport and transferred them to the Plymouth Voyager. The license plates from the Transport were transferred to the Voyager. (Id. ¶ 27.) Lacey then gave $400 to Greathouse, who told her that he would have her financed by Tuesday or Wednesday. Lacey did not receive any additional paperwork from William Chrysler at this point. (Id, ¶ 28.)

  Lacey called Greathouse on Wednesday, June 12, 2002, to see if financing had been arranged. Greathouse replied that he still had not heard anything regarding financing and told her that she would receive her paperwork in the mail once financing was arranged. (Id. ¶ 29.) Around June 20, 2002, Lacey was approved for financing by Drive Financial, (RIC) Lacey received the paperwork around June 25 or 26. The documents did not reflect credit for a trade in. (Id. ¶ 30.) Lacey then returned to William Chrysler to inquire as to why no trade in was reflected in the paperwork she received. (Id. ¶ 31.) She spoke with Hester, who was "at a loss to explain what happened." (Id. ¶ 32.) Lacey returned to William Chrysler ...


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