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Ethel Toney v. Michael Kinsch

February 21, 2012

ETHEL TONEY, PLAINTIFF,
v.
MICHAEL KINSCH, ZOBAIDA MASUD, PETE LAST NAME UNKNOWN, AND CAPITAL ONE AUTO FINANCE, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Ethel Toney alleges that Defendant Capital One Auto Finance, Inc. violated the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., (Count 2) and the Illinois Consumer Fraud Act, 815 ILCS 505/2, (Count 3) in connection with a vehicle financing agreement between Toney and Capital One.*fn1 Capital One has moved to dismiss [R. 46] both claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants the motion to dismiss.

I.

In evaluating a motion to dismiss, the Court must accept as true the complaint's factual allegations. In September 2008, Ethel Toney contracted to buy a 2006 Dodge Charger from a car dealership, and Defendant Capital One agreed to finance the purchase. R. 40 (Compl.) ¶¶ 30-37.*fn2 Toney, who was homebound and did not have a current Illinois driver's license, intended to only be a co-signer on the loan for her son, Vince. Id. ¶¶ 17-20. A salesman from the car dealership, Norwood Park Dodge, told Toney that if she entered into a financing agreement to buy the car, Vince would be able to refinance the vehicle in his name after four months of timely payments. Id. ¶ 18. The salesman also represented that Capital One would only finance the car if Toney paid $2,000 for a service contract. Id. ¶¶ 33-35. Toney provided the salesman with her expired driver's license and proof of her monthly income, which totaled $1,030 in social security disability insurance and widow's pension and benefits. Id. ¶¶ 24, 29. Toney also provided a $1,900 down payment and $220 to apply to insurance costs. Id. ¶ 25.

Toney asked the salesman to provide information about the refinancing program, and he promised he would fax it over after she signed the contract. Id. ¶ 36. The salesman did not leave a copy of the contract with Toney. Id. ¶ 26, 37. By September 17, five days later, Toney had not received the refinancing program information. Id. ¶ 38. She called the dealership and asked its owner and president, Michael Kinsch, why the information had not been sent, and he said he would fax it right away. Id. ¶ 38. The same day, Capital One sent Toney a welcome letter advising her that she should send all her car payments to Capital One. Id. ¶ 45.

The next day, Toney still had not received the refinancing program information. Id. ¶¶ 39-40. She called the dealership again and this time spoke with a man who had never heard of the alleged refinancing program. Id. Afterward, Toney called Capital One and explained to a representative she was concerned that the credit application the dealership had submitted on her behalf contained incorrect information. Id. ¶ 41. When Toney asked the Capital One representative about the terms of the refinancing program that dealership personnel had described to her and her son, he told her that Capital One was not aware of such a program. Id. ¶ 42. The Capital One representative also advised Toney that Capital One had never required the car dealership to include a $2,000 service contract on the loan, contrary to what the dealership salesman had told her. Id. ¶¶ 33-35, 43. The representative assured Toney that Capital One would send her the paperwork it had received from the dealership after she faxed over her driver's license and proof of income. Id. ¶ 44.

On September 19, Capital One sent Toney a copy of the retail installment contract and credit application she had requested. Id. ¶ 46. Toney discovered that the contract had been backdated to September 6 and that the dealership had overstated her monthly income by $1,800. Id. Soon after, Toney began receiving harassing phone calls from the dealership, as well as calls from someone claiming to be with the Chicago Police Department. Id. ¶¶ 47-48. Toney called Capital One to determine the status of the contract and was told that the contract was binding. Id. ¶ 49.

On September 30, the dealership's finance manager, Zobaida Masud, left Toney a message stating that Capital One did not want her business. Id. ¶ 50. Toney then called Capital One and spoke to a customer service representative. Id. ¶ 51. The representative from Capital One reported that he had told Masud to stop calling because Capital One was trying to "work things out" with Michael Kinsch. Id.

On October 5, Toney discovered that the car had been repossessed. Id. ¶¶ 52-53. The next day Toney called Capital One to tell them about the repossession, and a company representative told her that Capital One had not authorized the repossession. Id. ¶¶ 54-55. On that same day, Capital One withdrew $592.16 from Toney's checking account via an "auto check payment." Id. ¶ 56. About one week later, Norwood Park Auto Sales, a dealership under the same ownership as Norwood Park Dodge and located at the same address, advertised online Toney's repossessed car for sale. Id. ¶ 60.

Toney received her final communications from Capital One in November. First, Capital One sent Toney a letter informing her that Norwood Park Dodge had repurchased her contract. Id. ¶ 61. On November 10, Capital One sent Toney an "overpayment refund" of $193.59. Id. ¶ 62. Finally, on November 20, Capital One sent Toney a letter to tell her it was releasing any security interest it had in the 2006 Dodge Charger. Id. ¶ 63.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). When ruling on a defendant's motion to dismiss, the Court must accept the plaintiff's allegations as true and draw reasonable inferences in the plaintiff's favor. ...


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