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Love v. O'Connor Chevrolet

August 21, 2006

SHIRLEY LOVE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
O'CONNOR CHEVROLET, INC., AND LEGAL INVESTIGATIONS, INC., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

AMENDED MEMORANDUM OPINION AND ORDER*fn1

Plaintiff Shirley Love brought this action against O'Connor Chevrolet, Inc. claiming violations of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691; the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681; and the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/2. Love also filed class claims against O'Connor for deceptive advertising in violation of the ICFA and for violation of the Illinois Wage Assignment Act ("IWAA"), 740 ILCS 170/1. Finally, Love brought an individual claim against Legal Investigations, Inc. alleging a violation of the ICFA. Love's complaint arises from her purchase of a 2003 Chevrolet Cavalier from O'Connor and O'Connor's repossession (through Legal Investigations) of the car.

The Court dismissed Love's FCRA claim for failure to state a claim and stayed pending arbitration her ICFA false advertising and IWAA claims. O'Connor has moved for summary judgment on Counts 1 and 3, Love's claims under the ECOA and the ICFA. For the reasons stated below, the Court denies O'Connor's motion.

Facts

Sometime before June 11, 2003, Love saw an ad placed by O'Connor in a local newspaper. Pl.'s LR 56.1 Stmt. ¶ 20; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 20. The ad stated that a buyer could drive away in a car for as little as no money down, regardless of the buyer's credit history. Pl.'s LR 56.1 Stmt. ¶ 21. The ad also stated that financing would not be a problem because O'Connor owned the financing agency.Id. Love responded to the ad by calling the number provided and leaving her contact information. Pl.'s LR 56.1 Stmt. ¶ 22; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 22. Al Mackey, a salesman at O'Connor, returned Love's call and left a message asking her to come to the dealership. Pl.'s LR 56.1 Stmt. ¶ 25; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 25.

On June 11, 2003, Love went to O'Connor and met with Mackey. Def.'s Summ. Judg. Mem., Ex. A at 19. At the dealership, Love and Mackey discussed the type of car that Love was interested in purchasing. Pl.'s LR 56.1 Stmt. ¶ 30; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 30. They further discussed the potential terms of a new car purchase. Pl.'s LR 56.1 Stmt. ¶¶ 31-33; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 31-33. Love test drove a 2003 Chevrolet Cavalier. Pl.'s LR 56.1 Stmt. ¶ 34; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 34. Back at the dealership, Love signed an "Immediate Delivery Rider" and a Bill of Sale entitled "Dealer Arranged Financing," along with other paperwork. Def.'s LR 56.1 Stmt. ¶¶ 7, 10; Pl.'s Resp. To Def.'s LR 56.1 Stmt. ¶¶ 7, 10. Love also filled out a credit application for submission to O'Connor's finance agency. Def Ex. A at 37. According to Love, Mackey assured her that O'Connor owned the finance company. Pl.'s LR 56.1 Stmt. ¶ 38. O'Connor did not require Love to make a down payment on the car. Pl.'s LR 56.1 Stmt. ¶ 41. Love left O'Connor with a 2003 Cavalier. Id.

The Immediate Delivery Rider and the Bill of Sale both stated that Love might have to return the vehicle if financing could not be secured. Def.'s LR 56.1 Stmt. ¶¶ 13, 14. The relevant language in the Immediate Delivery Rider is:

If the Seller [O'Connor] is unable to sell, transfer, assign, or otherwise negotiate this contract to any financing source or organization engaged in the business of financing the subject matter of this contract, within five (5) days of this date and so notifies Buyer(s) [Love] (even if Buyer(s) credit information is found to be true, correct and complete), then in that event, Seller shall have the option to immediately cancel the within contract between Buyer(s) and Seller and Buyer(s) shall forthwith return the said vehicle to Seller at the Seller's Primary place of business during normal business and Seller shall return to Buyer(s) all the Buyer(s) deposits less any amounts kept due to damage of said vehicle. The responsibility of each to the other thereafter on said contract shall be terminated. Def.'s Summ. Judg. Mem., Ex. C. The relevant part of the Bill of Sale is:

In the event of a time sale, O'CONNOR SHALL NOT BE OBLIGATED TO SELL UNTIL AND UNLESS a finance source approves this order and agrees to purchase a retail installment contract between Customer and O'Connor based on this order . . . This agreement may be cancelled by O'Connor if O'Connor determines that if cannot obtain third party approval and may be canceled by either party if no financing is obtained for Customer on the agreed terms within 15 business days of the date of this agreement, If the contract is terminated as a result of the inability to obtain third party financing, Customer agrees to return the vehicle with 24 hours of notice from O'Connor and O'Connor agrees to return the Customer's trade and down payment, if applicable. O'Connor may repossess the vehicle if Customer refuses to return it.

Def.'s Summ. Judg. Mem., Ex. D (emphasis in original).

About one or two weeks later, O'Connor notified Love that it could not obtain financing for the car and that Love would have to return it. Pl.'s LR 56.1 Stmt. ¶ 42; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 42. Love returned the car as asked. Def.'s Summ. Judg. Mem., Ex. A at 34. About one week later, Mackey called Love and informed her that if she could make a down payment on the car, he was sure that O'Connor could obtain financing. Pl.'s LR 56.1 Stmt. ¶ 44.

Love returned to O'Connor with $400 as a down payment and met with Barbara Owen, a representative from the finance department. Pl.'s LR 56.1 Stmt. ¶¶ 45, 46; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 45, 46. Love contends that during her meeting with Owen, she signed a Retail Installment Contract with Evergreen Finance Company that Owen backdated to June 11, 2003. Pl.'s LR 56.1 Stmt. ¶ 47. After signing the contract, Love says she left O'Connor in possession of the Cavalier for the second time. Pl.'s LR 56.1 Stmt. ¶ 48.

On July 4, 2003, Legal Investigations repossessed the Cavalier at the request of O'Connor. Def.'s LR 56.1 Stmt. ¶ 18; Pl.'s Resp. to Def.'s LR 56.1 Stmt. ¶ 18. Love called O'Connor to inquire about the repossession and talked to Sean Galvin and Mackey. Pl.'s LR 56.1 Stmt. ¶ 51; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 51. Love asked both men on separate occasions why O'Connor had repossessed the Cavalier. Pl.'s LR 56.1 Stmt. ¶¶ 52, 55; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 52, 55. Both men stated that they were not sure; Galvin stated he would find out why and get back to Love. Pl.'s LR 56.1 Stmt. ¶¶ 53, 56; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 53, 56. Galvin never called Love back. Pl.'s LR 56.1 Stmt. ¶ 54; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 54. There is some evidence suggesting the repossession took place because financing again could not be obtained. See Def.'s Summ. Judg. Reply Ex. A. But because O'Connor has made no attempt to lay a foundation for, or explain this evidence, the Court is unable to determine on the present record exactly what triggered the repossession or what steps, if any, O'Connor took leading up to the repossession.

After the repossession, Love received a notice from Bank One dated July 8, 2003 stating that Bank One would approve financing for her purchase of the car at terms different from those requested. Pl.'s LR 56.1 Stmt. ¶¶ 58, 59; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 58, 59. Love contends she never received notice of denial of credit or a counteroffer from any other lending agency. Pl.'s LR 56.1 Stmt. ¶ 57. O'Connor contends that Nationwide Cassel sent Love a denial of credit notice. Def.'s LR 56.1 Stmt. ¶ 16; Def.'s Summ. Judg. Mem., Ex. E. O'Connor also contends that it informed Love that it could not arrange financing by sending her a handwritten note on a business card dated June 30, 2003. Def.'s Resp. To Pl.'s LR 56.1 Stmt. ¶ 49; Def's Summ. Judg. Reply, Ex. A.

As a result of the repossession, Love says, she missed a week of work because she could not obtain transportation to her midnight shift. Pl.'s LR 56.1 Stmt. ¶ 63; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 63. Additionally, Love says, she was forced to rent a car until she could purchase a new one. Pl.'s LR 56.1 Stmt. ¶ 65; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶ 65. Love also claims that she suffered emotional distress as a result of the repossession, requiring medical treatment. Pl.'s LR 56.1 Stmt. ¶¶ 67, 68; Def.'s Resp. to Pl.'s LR 56.1 Stmt. ¶¶ 67, 68.

Discussion

O'Connor has moved for summary judgment on Love's ECOA and ICFA claims. Summary judgment may be granted only 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 must construe all facts and any reasonable inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

1. ECOA Claim

The case as presented to the Court on summary judgment is somewhat of a muddle, at least with regard to the ECOA claim, because O'Connor has not done a particularly good job of addressing or delineating the issues involved. Its opening summary judgment memorandum was rather cursory, to say the least; it devoted all of four short paragraphs to the ECOA claim. When Love raised, in response, a number of reasons for denying summary judgment that O'Connor had not addressed, O'Connor dealt with them in a similarly cursory way ...


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