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November 16, 2004.

LYNCH FORD, INC. Defendant.

The opinion of the court was delivered by: DAVID COAR, District Judge


Gabriel Rodriguez and Janette Lopez brought a five count complaint against Lynch Ford, in which they alleged violations of the Credit Repair Organizations Act ("CROA"), 15 U.S.C. § 1679b, the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1602 et seq., the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681m, the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/2 et seq. Before this Court is the defendant's motion for summary judgment on all counts of Lopez and Rodriguez's complaint, and defendant's motion to strike those portions of plaintiffs' brief that purport to move for summary judgment. For the reasons discussed herein, defendant's motion for summary judgment is granted in part and denied in part; defendant's motion to strike is denied.

I. Undisputed Facts

  Sometime in October 2002, plaintiff Janette Lopez saw an advertisement in the Chicago Sun-Times from defendant Lynch Ford, Inc. The advertisement indicated that Lynch Ford would help consumers with bad credit repair their credit by purchasing a car. After seeing this advertisement, Lopez call Lynch Ford and spoke to George Soto, a sales person. Lopez told Soto that she was looking for a car but did not have good credit. Soto asked Lopez to come to the dealership, which she did on October 12, 2002.

  While she was at the Lynch Ford dealership on the evening of October 12, 2002, Lopez selected a 2003 Volkswagen Jetta that she wished to purchase. Lopez gave permission for Lynch Ford to request her credit report. At about 7:00 p.m., Lopez was told by a Lynch Ford employee that he had just spoken with a bank, which needed a $2,000 down payment in order to finance the car. Lopez signed two Vehicle Purchase Orders for the Jetta, one with hand-written price terms, and one with typed price terms. The terms of the Vehicle Purchase Order indicated that Lopez would make a down payment of $2,000 and then make monthly payments of $459 for 72 months. A section entitled "Financing Terms" appears in the middle of the Vehicle Purchase Order,*fn1 and discloses that the sale is contingent on a condition subsequent, namely that the dealer is able to obtain financing for the purchaser. Lopez signed the purchase order containing this clause. In addition, Lopez signed a notice of requirement to provide insurance, an application for limited coverage, a sales tax return, and an odometer disclosure statement. The agreement to provide insurance states, "I have recently financed the purchase of a motor vehicle." Lopez was given a temporary license plate, and photocopies of all the documents she had signed. She was told that she would receive the originals after Udo Wegner, Lynch Ford's finance manager, signed off on them; Wegner was not in the dealership that evening. Lopez then drove the Jetta off the lot.

  Between October 12 and October 24, 2002, Lopez heard nothing further about the Jetta purchase. Lopez stated that she called Lynch Ford during that time, but no one called her back. On or about October 24, 2002, Lopez went to Lynch Ford in person. She spoke with Ryan Jordan, a Lynch Ford employee, who told her that Lynch had been unable to finance the vehicle. Jordan informed Lopez that she would need a co-signer or she would have to return the Jetta.

  Lopez asked her uncle, plaintiff Gabriel Rodriguez, to be her co-signer on the Jetta. On October 31, 2002, Lopez returned to Lynch Ford with her husband and Rodriguez. Rodriguez signed a new Vehicle Purchase Order, a Retail Installment Contract, a GAP installment sale contract, and an OmniCare vehicle service contract application. The Retail Installment Contract ("RIC") contains a "Federal Truth-In-Lending Disclosure Statement" on the upper left portion of the document. This box, which is set off from the rest of the text on the page by a black border, discloses an Annual Percentage Rate ("APR") of 8.39%, a Finance Charge of $5,192.19, an amount financed of $22,399.41, a payment total of $27,591.60, and a Total Sale Price of $28,591.60, including a down payment of $1,000.00. Lopez paid the down payment. The terms of the disclosure further provided that the contract was for 60 monthly payments of $459.86, which were to commence in December 2002. Lopez did not sign any of these forms, although both the RIC and the GAP installment sale contract had spaces for two purchasers to sign. Rodriguez was given a copy of the RIC. The RIC that Rodriguez signed was assigned to Chase Manhattan Bank, U.S.A., NA. In December 2002, Rodriguez received a Vehicle Identification Card for the 2003 Volkswagen Jetta from the Illinois Secretary of State by mail at his home address. The registration was in his name only.

  On December 31, 2002, Lopez went to Lynch Ford again to inquire whether the car was in her name because she had not received any information about the financing or where to send payments. She requested copies of documents relating to the purchase of the Jetta. Ryan Jordan gave her the original Vehicle Purchase Order, notice of requirement to provide insurance, application for limited coverage, and odometer disclosure statement that she signed on October 12, 2002. Lynch Ford subsequently notified Lopez that Chase Manhattan was the bank that financed the Jetta. In January 2003, Lopez contacted Chase Manhattan directly because she had not received payment information. Chase Manhattan informed Lopez that her name was not on the contract and that, in fact, Gabriel Rodriguez was the sole purchaser of the Jetta.

  II. Analysis

  A. Summary Judgment Standard

  A party seeking summary judgment has the burden of showing, through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed.R. Civ. P. 56(c). On a motion for summary judgment, courts "must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380 (7th Cir. 2001). "If, however, the record as a whole `could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Id. Once a motion for summary judgment has been filed, "the burden shifts to the non-moving party to show through specific evidence that a triable issue of fact remains on issues on which the non-movant bears the burden of proof at trial." Liu v. T&H Machine, Inc., 191 F.2d 790, 796 (7th Cir. 1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-movant must provide more than a "mere scintilla" of evidence to carry its burden under the summary judgment standard. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). However, weighing evidence, making credibility determinations, and drawing reasonable inferences are functions of a jury, not of a judge deciding a summary judgment motion. Id. at 255.

  B. Clarification of Pleading Requirements Under Federal Rule of Civil Procedure 56 and Local Rule 56.1

  The purpose of a summary judgment proceeding is to identify those cases that be resolved without a trial. To that end, the courts in this District have clarified the requirements of summary judgment pleadings in Local Rule 56.1. This rule requires parties to file statements of material facts "as to which the . . . party contends there is no genuine issue and that entitle the . . . party to a judgment as a matter of law." N.D. Ill. L.R. 56.1(a)(3). Local Rule 56.1 outlines the obligations of the parties in a summary judgment proceeding. Courts in this district have broad discretion to enforce the rule, and the Seventh Circuit regularly upholds strict enforcement of Local Rule 56.1. See, e.g., Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995) (citing cases).

  This Court urges parties in this case, in particular Plaintiffs' counsel, to examine Local Rule 56.1 more closely. Judge Castillo's detailed discussion of Rule 56.1 requirements and procedures in Malec v. Sanford, 191 F.R.D. 581 (N.D. Ill. 2000), provides an excellent guide to proper form for statements of material facts. "There are three separate types of statements governed by Rule 56.1: the movant's statement, the nonmovant's response and statement of additional facts, and the movant's response to the additional facts." Id. at 583. Statements of material fact should consist of short statements making specific references to materials supporting the fact set forth in the statement. A nonmovant's statement of facts must "cite specific evidentiary materials" that justify the nonmovant's denial of a movant's factual allegation. A general denial is insufficient. The statement of facts is not the place for argumentative statements; it is also not the place for drawing inferences or making legal arguments. Malec, 191 F.R.D. at 584.

  All material facts must be supported by specific references to the record, or, in the case of any disagreement with the opposing party's statement of material fact, by specific references to affidavits or other supporting materials relied upon. Plaintiffs provided only Lopez's deposition transcript and an additional affidavit to support their claims. This Court finds such a lack of evidentiary support baffling. It is true that depositions can be quite costly and that prosecuting cases such as this is an unpredictable financial gamble. However, other evidence can be more economically obtained. The cost of acquiring and photocopying a credit report is unlikely to exceed forty dollars, and indeed may even be much less, but could be worth far more than that in preserving a party's claims beyond the summary judgment stage. Moreover, "although the evidence of a factual contention need not be admissible itself, it must represent admissible evidence." Id. at 585. Hearsay "is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions . . . are admissible in summary judgment proceedings to establish the truth of what is attested or deposed." Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (cited in Malec, 191 F.R.D. at 585). Thus, the sections of plaintiffs' statement of facts in which plaintiffs assert "facts" based on inadmissible hearsay statements are inappropriate and deemed inadmissible. See, e.g., Pls.'s Resp. to Def.'s Stmt of Facts ¶ 105.

  The court will consider the unopposed factual contentions contained in the movant's initial statement of facts and in the non-movant's statement of additional facts. A movant has the duty to respond to any facts contained in the statement of additional facts; the "sanction for failing to reply is identical to that imposed for failing to respond: admission of the opposing party's factual contentions." Malec, 191 F.R.D. at 584. Here, defendant did not ...

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