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THELE v. SUNRISE CHEVROLET

May 28, 2004.

LISA THELE, Plaintiff,
v.
SUNRISE CHEVROLET, INC., Defendant



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Lisa Thele sues Sunrise Chevrolet, Inc. claiming common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 and 2C; the Illinois Credit Services Organization Act, 815 ILCS 605/5; the Equal Credit Opportunity Act, 15 U.S.C. § 1691; and the Fair Credit Reporting Act, 15 U.S.C. § 1681m(a). Thele's complaint arises from her unsuccessful attempt to purchase a 2003 Monte Carlo automobile. Sunrise Chevrolet moves for summary judgment on all of Thele's claims. For the reasons stated below, the Court grants Defendant's motion.

Statement of Facts

  The following facts are not in dispute, In June 2000, Thele leased a 2000 GMC Envoy through the Smart Buy leasing program from a car dealer other than Sunrise Chevrolet. Def.'s Facts ¶ 1; Pl.'s Resp. to Def.'s Facts ¶ 1. She entered into a retail installment contract with GMAC requiring her to make payments of $556.38 on the first of each month for 35 months. Def.'s Facts ¶ 2; PL's Resp. to Def.'s Facts ¶ 2. In January 2003, GMAC and General Motors implemented the Spring Pull Ahead Program, allowing Smart Buy lessees to end their leases early without penalty if they purchased a new GM vehicle. Def.'s Facts ¶ 4; Pl.'s Resp. to Def.'s Facts ¶ 4. However, to be eligible, participants in the Spring Pull Ahead Program had to pay any outstanding balances on their leases. Id.

  Thele brought her Envoy to Sunrise Chevrolet on February 2, 2003, and attempted to purchase a 2003 Monte Carlo under the Spring Pull Ahead Program. Def.'s Facts ¶ 5; Pl.'s Resp. to Def.'s Facts ¶ 5. At the time, Thele was one month behind on her lease payments for the Envoy. Def.'s Facts ¶ 3; Pl.'s Facts ¶ 5. She understood that she had to pay the missed installment. Pl.'s Facts ¶ 7; Def.'s Resp. to Pl.'s Facts ¶ 7.

  Sunrise Chevrolet told Thele she needed to provide a letter verifying her employment, which she tendered the following day. Def.'s Facts ¶ 6; Pl.'s Resp. to Def.'s Facts ¶ 6. She then signed a retail installment contract, a finance rider and an extended service warranty contract for the Monte Carlo. Def.'s Facts ¶ 7; Pl.'s Resp. to Def.'s Facts ¶ 7. The finance rider stated:
The customer understands and agrees that Sunrise Chevrolet shall not be obligated to sell unless a third party agrees to purchase the motor vehicle retail installment contract 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 to the providing of support documentation for statements on the credit application. The purchase contract and retail installment contract may be cancelled at anytime by Sunrise Chevrolet, if Sunrise Chevrolet determines, in its sole discretion, that it can not obtain third party approval and may be cancelled by either party within 10 days if third party approval is not obtained on the agreed terms.
Def.'s Ex. D. Thele testified at her deposition that she signed the rider without reading it. Def.'s Facts ¶ 8; Pl.'s Resp. to Def.'s Facts ¶ 8. The extended service warranty contract that she signed stated: "I acknowledge that purchase of this agreement is not required in order to purchase or obtain financing for a motor vehicle." Def.'s Ex. F; Def s Facts ¶ 9; PL's Resp. to Def.'s Facts ¶ 9. Plaintiff made a $500 down payment and took possession of the Monte Carlo. Def.'s Facts ¶ 10; PL's Resp. to Def.'s Facts ¶ 10. Thele left her Envoy with Sunrise Chevrolet. Def.'s Facts ¶ 11; Pl.'s Facts ¶ 8. GMAC later picked up the Envoy from the dealership. Def.'s Facts ¶ 12; Pl.'s Resp. to Def.'s Facts ¶ 12.

  From this point, Thele and Sunrise Chevrolet's accounts diverge. Thele states that a salesperson for Sunrise Chevrolet told her that if she purchased the extended warranty for the Monte Carlo, "they could get [her] at a lower rate and that the bank would probably most likely approve [her loan]." Pl.'s Dep. at 48. Sunrise Chevrolet states that it submitted Thele's credit application to Auto One Acceptance Corp., Nuvell Credit Corp., Triad Financial Corp., and Bank One, N.A., but all four lenders declined to extend Thele credit and sent her notice of their decisions. Def.'s Facts ¶ 13, In support of its claim, Sunrise Chevrolet has provided the letter or a sample of the type of letter that each lender sent to Thele denying her credit, see Def.'s Ex. G-J, and affidavits from employees of Nuvell, Triad and Bank One stating that the letters were sent out in accordance with their regular business procedures. See Def.'s Ex. G-I. The letters from Auto One, Nuvell and Triad are addressed to Thele and refer to her application for credit for the purchase of a vehicle from Sunrise Chevrolet. See Def.'s Ex. G-H, J. The letters all explain that the lender is denying Thele credit based in part on a credit report from Trans Union Corp., that Thele can request a free copy of her credit report from Trans Union, that in compliance with the Federal Equal Credit Opportunity Act, the lender does not discriminate against credit applicants on prohibited grounds. Each of the letters provides the specific reasons why her application was denied or explains how she can request such a statement of reasons. See Def.'s Ex. G-J.

  The parties agree that Sunrise Chevrolet called Thele and told her that she had to return the Monte Carlo to the dealership because financing had not been approved. Def.'s Facts. ¶ 15; Pl.'s Resp. to Def.'s Facts ¶ 15. Thele returned the Monte Carlo to the dealership before she had made any payments on the car, and Sunrise Chevrolet returned Thele's $500 down payment. Id. The parties agree that GMAC sent Thele a letter on March 24, 2003, stating that her Envoy would be sold if she did not pay the past-due installment on her lease of the Envoy. Def.'s Facts ¶ 16; PL's Resp. to Def.'s Facts ¶ 16. Thele never contacted GMAC. Id. Defendant alleges that GMAC sent her another letter on April 15, 2003, informing her that the Envoy would be sold after May 6, 2003 if she did not pay the past-due installment. Def.'s Facts. ¶ 17. Thele confirmed at her deposition that she received the April 15 letter but did not contact GMAC. PL's Dep. at 76-77.

  Thele testified at her deposition that the week after she returned the Monte Carlo, she purchased a 1995 Cadillac from a friend for $8,500. Id. at 15-16. She paid $2,500 out of pocket and received a loan for the other $6,000 from American General. Id. at 16.

  Analysis

  Sunrise Chevrolet moves for summary judgment on all six claims in Thele's complaint. Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). The Court evaluates admissible evidence in the record "as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party's version of the facts is more likely true." Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citation omitted).

  Thele repeatedly cites to her complaint as support for her claim that a genuine issue of fact exists. But "[t]he nonmovant will successfully oppose summary judgment only when it presents `definite, competent evidence to rebut the motion.'" Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002) (citation omitted). The nonmovant "must produce more than a scintilla of evidence to support [her] position." Pugh v. City of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001) (citation omitted). "The mere denial of a particular fact without specific references to affidavits, parts of the record, and other supporting materials is insufficient, and, where a properly supported factual assertion is met with such a naked denial, the fact may be deemed admitted." Fuller v. Caterpillar Inc., 124 F. Supp.2d 610, 614 (N.D. Ill. 2000) (citations omitted).

 I. Counts 1 & 2 — fraud

  In Counts 1 and 2, Thele alleges that Sunrise Chevrolet committed common law fraud and violated the Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/2, by misrepresenting that if she purchased the $1,995 extended service warranty contract, she would be approved for financing with a 9.9 percent annual percentage rate ("APR"). Compl. ¶¶ 7-9. Thele states that if she had known that she would not receive approval for the 9.9 percent APR, she would not have purchased the extended warranty or the Monte Carlo. Compl. ¶ 11. To prevail on a claim of common law fraud in the formation of a contract, Thele must show that "(1) [Sunrise Chevrolet] made a false statement of material fact, (2) [Sunrise Chevrolet] knew that the statement was false, (3) [Sunrise Chevrolet] made the statement intending to induce [Thele] to act, (4) [Thele] relied upon the truth of the statement, and (5) [Thele's] damages resulted from reliance on the statement." Cozzi Iron & Metal, Inc. v. U.S. Office Equipment, Inc., 250 F.3d 570, 574 (7th Cir. 2001) (citing Connick v. Suzuki Motor Co., 174 Ill.2d 482, 496, 675 N.E.2d 584, 591 (1996)). To prevail on her ICFA claim, Thele must show: "(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception." Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 776 N.E.2d 151, 160 (2002) (citing Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 373, 695 ...


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