The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Justin E. Manley ("Manley") sued defendant National Auto Warranty Services, Inc. d/b/a Dealer Services ("Dealer Services") for violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681n and § 1681o ("FCRA"). Before the court are cross-motions for partial summary judgment on the issue of whether the actions of Dealer Services constituted a violation of the FCRA. For the reasons stated below, both motions are denied without prejudice.
In June 2008, Dealer Services sent Manley two mailers offering an extended warranty program for his car for "2007 Pricing PLUS 0% financing on programs activated today!" Ex. 1 at 1, Pl.'s Rule 56.1(a)(1) Compendium of Affs., Deps. & Other Materials (emphasis in original). The mailer urged Manley to "call [Dealer Services] immediately with the exact miles and VIN Number [sic] on your vehicle to discuss options and take advantage of our current limited time offer." Id. (emphasis in original). Dealer Services stated on the mailers that no credit check was required, but that an unspecified minimum down payment applied for the "0% financing" option.
Id. Finally, the mailer disclosed the prescreened offer of credit was based on information in Manley's credit report indicating that he met certain criteria and that the offer was not guaranteed if he did not meet Dealer Services criteria. Id. at 2.
A warranty cost between $1,500 and $3,500, for coverage of between four and six years. If a customer chose not to pay for the warranties in full, he or she was required to pay over a twelve, eighteen, or twenty-four month period in equal monthly installments. Dealer Services also required a down payment of at least 10% of the warranty cost, typically around $350.*fn2 A third party, Mepco Finance Corporation, billed the customer in monthly installments for the balance of the warranty cost.*fn3 If a customer failed to make an installment payment, Dealer Services would cancel the warranty, either the same month that the customer defaulted on payment or the following month.
Manley moves for partial summary judgment on Counts I and II of his complaint, seeking to establish that Dealer Services violated the FCRA but deferring the determination of the company's requisite mental state for trial.*fn4 Dealer Services cross-moves on the same issue.
Motions for partial summary judgment are permitted under Rule 56. Fed. R. Civ. P. 56(a)-(b); Am. Nurses' Ass'n v. State of Ill., 783 F.2d 716, 729 (7th Cir. 1986). Summary judgment is appropriate when the record reveals that 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). "A 'genuine issue' exists where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" AA Sales & Assocs., Inc. v. Coni-Seal, Inc., 550 F.3d 605, 608-09 (7th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. In response, the non-moving party cannot rest on the pleadings, but must designate specific material facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. When considering a motion for summary judgment, the court must view the record and any inferences to be drawn from it in the light most favorable to the opposing party. AA Sales & Assocs., Inc., 550 F.3d at 609. "On cross-motions for summary judgment, [a court] construe[s] all facts and inferences therefrom in favor of the party against whom the motion under consideration was made." Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1124 (7th Cir. 2008).
Manley argues that: (1) Dealer Services' mailer was not an offer of credit because at all times the consumer was required to make payments in advance of the services received; and (2) Dealer Services conditioned the offer on impermissible criteria under the FCRA, namely the mileage and value of the car. Dealer Services asserts that it made a firm offer of credit of financing for a warranty costing an average of $2,500 and that all ...