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Bertin v. Grant Automotive

April 30, 2007

JAMES R. BERTIN AND TRICIA M. BERTIN, PLAINTIFFS,
v.
GRANT AUTOMOTIVE, INC., DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on cross-motions for summary judgment. See Defendant's Motion for Summary Judgment (d/e 14) (Defendant's Motion); Plaintiffs' Motion for Summary Judgment (d/e 20) (Plaintiffs' Motion). Plaintiffs James R. Bertin and Tricia M. Bertin (the Bertins) bring this action against Defendant Grant Automotive, Inc. (Grant Automotive), alleging various statutory and common law causes of action. The Bertins allege in Count I that Grant Automotive violated the Equal Credit Opportunity Act (ECOA),15 U.S.C. § 1691 et seq., by failing to provide them with written notice of the denial of credit and reasons for the credit decision. The Bertins allege in Count II that Grant Automotive violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/2C, by completely failing to return their $400.00 down payment and by failing promptly to return their trade-in vehicle. In Count III, the Bertins allege that Grant Automotive violated the Illinois Uniform Commercial Code (IUCC), 810 ILCS 5/9-611, by failing to provide them with notice concerning the disposition of their collateral. The Bertins allege in Count IV that Grant Automotive violated the common law tort of trespass to chattels or conversion by unlawfully repossessing and subsequently selling their Cavalier to a third party. For the reasons stated infra, the Plaintiffs' Motion for Summary Judgment is DENIED. The Defendant's Motion for Summary Judgment is ALLOWED.

STATEMENT OF FACTS

At all times relevant to this action, the Bertins resided in Pana, Christian County, Illinois.*fn1 Grant Automotive, an Illinois domestic corporation, is a car dealership in Taylorville, Christian County, Illinois. On January 2, 2004, Tricia stopped by Grant Automotive's facility located in Taylorville, Illinois to see if an opportunity existed to purchase a car. At that time, Tricia met with Grant Automotive's salesman Michael Cherry and completed a credit application in which Tricia indicated that she was employed as a waitress at Linda's Restaurant in Pana, Illinois, with wages of $400.00. See Attachments to Defendant's Motion, Application for Credit. Tricia claims that the information provided in her credit application was true and correct at that time. Cherry advised Tricia that he would attempt to secure approval for financing on her and her husband's behalf, and would contact her with the status of the loan application.

In an effort to procure financing approval for the Bertins, Jason Johnson, Grant Automotive's employee, submitted their credit application to Centrix Financial, LCC (Centrix) and to Nuvell Financial Services (Nuvell). Centrix declined to extend financing to the Bertins, but Nuvell conditionally approved provided that they: (1) sign the necessary loan documents; (2) submit proof of their home address; (3) provide proof of James' monthly income of $1,600.00, excluding wage attachments and garnishments; (4) submit proof of Tricia's monthly income of $400.00, excluding wage attachments and garnishments; and (5) turn over title to a trade-in vehicle. See Attachments to Defendant's Motion, Notice from Centrix & Notice from Nuvell. Nuvell's notice regarding the conditional approval of the Bertins' loan application specifically stated: "INCOME MUST PROVE AS STATED[.]" Id.

On the evening of January 2, 2004, Cherry contacted Tricia by phone and related that he was successful in securing financing for the Bertins, but that they had to satisfy Nuvell's financing conditions set forth above. Cherry advised the Bertins to stop by the dealership the next day to pick a car qualified under Nuvell's financing terms, and to bring with them the following additional documentation to satisfy Nuvell's financing conditions: (1) proof of monthly income for both Tricia and James, (2) three prior years' employment history for James, (3) a phone bill, and (4) title to a trade-in vehicle. Tricia testified in her deposition that Grant Automotive, through its employee, explained to her that the above financing requirements had to be met to secure financing approval from Nuvell. Plaintiffs' Exhibits for Summary Judgment Motions (d/e 21) (Plaintiffs' Exhibits), Deposition of Tricia Bertin (Tricia Dep.), at 14.

The following day, on January 3, 2004, the Bertins returned to Grant Automotive and furnished the requested paperwork. Based on the representation of Grant Automotive's employees, the Bertins understood that once they submitted the necessary documentation, they had met all of Nuvell's financing conditions, with no remaining contingencies left to be satisfied. Cherry informed the Bertins that they had been approved for monthly payments of $325.00. Tricia Dep., at 11. Grant Automotive represented to the Bertins that the only car that qualified under the Bertins' approved payment plan was a new 2004 Chevrolet Cavalier. The Bertins decided to purchase the Cavalier.

To complete the purchase, the Bertins met with Roger Estes, Grant Autmotive's finance manager, and signed various documents. The parties executed a Retail Installment Contract (RIC) in which the Bertins agreed to make monthly payments of $355.25 for 59 months, even though under the financing approval, the Bertins had been only approved for monthly payments of $325.00. Attachment to Defendant's Motion, Retail Installment Contract; Complaint (d/e 1), Exh. A, Retail Installment Contract. According to Estes, the change in the amount of monthly payment could have been due to a process called "rehash." Plaintiffs' Exhibits, Deposition of Roger Estes (Estes Dep.), at 96. "This is a process where the [Grant Automotive] employee negotiates the terms of financing with a finance company." Payne v. Ken Diepholz Ford Lincoln Mercury, 2004 WL 40631, at *1 (N.D.Ill. 2004). The RIC identified the Bertins as the buyers, Grant Automotive as the seller, and Nuvell Credit Corporporation as the assignee. The RIC set forth, among other things, an annual percentage rate (APR) of 9.9% and a finance charge of $4,659.51. The Bertins signed the RIC, but Grant Automotive did not. Grant Automotive delivered the Cavalier to the Bertins.

The parties also signed a document entitled "Bill of Sale", which included provisions such as, "This order is not a binding contract[,]" and "Dealer shall not be obligated to sell until approval of the terms hereof is given by a bank or finance company willing to purchase a retail installment contract between the parties hereto based on such terms." Attachment to Defendant's Motion, Bill of Sale. The Bill of Sale was signed by the Bertins and Estes. The Bertins also signed a Bail and Hold Harmless Agreement, which read as follows:

Delivery of vehicle described on attached retail buyers is accepted by purchaser subject to credit approval by a financing institution within 72 hours, and in the event of a credit report, terms or amount unacceptable to the financing institution, the purchaser shall return the said motor vehicle immediately to the dealer, or pay the full purchase price in cash. The purchaser agrees that in the event of his or her failure or refusal to return the aforesaid vehicle to the dealer, or pay the full purchase price in cash, the dealer shall have the right, without notice or demand and without legal process, to enter upon any premises where the said vehicle may be loaded and take possession thereof.

Attachment to Defendant's Motion, Bail and Hold Harmless Agreement.

The Bertins lastly signed a document entitled "I Understand Form." Estes also signed the document. The "I Understand Form" provided:

I UNDERSTAND . . . This transaction is subject to final approval by lender. All information I have stated on the application is correct. This includes residence, work history and income.

I UNDERSTAND . . . I must have full coverage insurance (with deductibles no more than $500) to drive this vehicle off the premises. I also understand I must contact my insurance company within 24 hours to transfer my insurance to my new vehicle if I have not yet done so. I also understand I must contact my finance company to notify them if I change insurance companies.

I UNDERSTAND . . . my payoff of $730.00 must be subtracted from my trade-in allowance.

I UNDERSTAND . . . If there is any balance on my trade-in after a payoff has been made by the dealer due to insufficient funds or late charges or stopped payment on checks recently paid; I am responsible for immediate payment in full to the dealer within 24 hours of notification.

I UNDERSTAND . . . That I must keep my same employment and residence for the next 30 days in order to complete the financing agreement.

I UNDERSTAND . . . If the dealer is not able to obtain financing on the vehicle I have purchased due to incorrect information, which I have given the dealer, then I will pay any additional fees or expenses in which the dealer has incurred to secured [sic] financing for my purchase.

I UNDERSTAND . . . That in the event the funding on my vehicle with all lending institutions used for financing, can not be completed as agreed to by all parties involved; I am waiving my right to a portion or all of my down payment used in the purchase of this vehicle, which is contingent upon usage, mileage, and ...


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