exists as to whether the lenders sent her notice that they were denying her financing. It appears
that there is no longer a dispute that Thele received notice from Auto One that it was denying her
credit application. Although Thele stated at her deposition that she did not recall receiving a
letter from Auto One, see PI.’s Dep, at 78, she subsequently provided Sunrise Chevrolet with a
letter addressed to her by Auto One dated February 13, 2003 explaining why it was denying her
credit. Def.’s Facts {] 13; Def. Ex. J.

Sunrise Chevrolet argues it is entitled to a presumption that the letters from Nuvell, Triad
and Bank One were delivered because it has come forth with evidence of proper mailing. See
Godfrey v. United States, 997 F.2d 335, 338 (7 Cir. 1993) (citations omitted). “To invoke the
presumption of delivery, the [party] could either present evidence of actual mailing such as an
affidavit from the employee who mailed the [letter], or present proof of procedures followed in
the regular course of operations which give rise to a strong inference that the [letter] was properly
addressed and mailed.” Jd. (citations omitted). Sunrise Chevrolet has proceeded under the latter
method of proof. It has provided affidavits from employees of Nuvell, Triad and Bank One
attesting that normal procedures were followed in sending letters to Thele denying her credit.
Def. Ex. G-I. Based on the affidavits provided, it is entitled to a presumption of delivery.

However, the presumption of delivery can be rebutted. And for purposes of summary
judgment, “[w]hen a plaintiff unequivocally denies receipt of the letter, there is a genuine issue
of a material fact.” Jones v. Citibank, 844 F. Supp. 437, 442 (N_D. Ill. 1994) (citing Jn re
Longardner & Assocs., 855 F. 24 455, 459 (7" Cir. 1988)). So, for example, in Jones the Court
found that Citibank was not entitled to summary judgment on the basis that the statute of

limitations had expired on one of the plaintiff's ECOA, Fair Housing Act and section 1981 and

13


denied or explains how she can request such a statement of reasons. See Def.’s Ex. G-J.

The parties agree that Sunrise Chevrolet called Thele and told her that she had to retum
the Monte Carlo to the dealership because financing had not been approved. Def.’s Facts. 4 15;
Pl.’s Resp. to Def.’s Facts J 15. Thele returned the Monte Carlo to the dealership before she had
made any payments on the car, and Sunrise Chevrolet returned Thele’s $500 down payment. Jd.
The parties agree that GMAC sent Thele a letter on March 24, 2003, stating that her Envoy
would be sold if she did not pay the past-due installment on her lease of the Envoy. Def.’s Facts
4] 16; Pl.’s Resp. to Def.’s Facts | 16. Thele never contacted GMAC. Jd. Defendant alleges that
GMAC sent her another letter on April 15, 2003, informing her that the Envoy would be sold
after May 6, 2003 if she did not pay the past-due installment. Def.’s Facts. | 17. Thele
confirmed at her deposition that she received the April 15 letter but did not contact GMAC. PI.’s
Dep. at 76-77.

Thele testified at her deposition that the week after she returned the Monte Carlo, she
purchased a 1995 Cadillac from a friend for $8,500. Id. at 15-16. She paid $2,500 out of pocket
and received a loan for the other $6,000 from American General. Jd. at 16.

Analysis

Sunrise Chevrolet moves for summary judgment on all six claims in Thele’s complaint.
Summary judgment is proper 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 evaluates admissible evidence in the record “‘as a jury might,

construing the record in the light most favorable to the nonmovant and avoiding the temptation to


intended to require all persons or entities who participated in decisions that led to
adverse action to give notice in order to achieve the purpose of the statute.

Id. at 989-90 (citation omitted). Accordingly, the Court grants Sunrise Chevrolet’s motion as to
Count 6.
Conclusion
For the reasons stated, the Court grants Sunrise Chevrolet’s motion for summary

judgment in its entirety [docket # 17]. The Clerk is directed to enter judgment in favor of

‘Was wr

Defendant on all counts.

MATTHEW F. KENWELLY
United States District Judge

Date: May 28, 2004

17


of the services of a credit services organization or engage, directly or indirectly, in
any act, practice or course of business intended to defraud or deceive a buyer in
connection with the office or sale of such services; including but not limited to:
the amount or type of credit a consumer can expect to receive as a result of the
performance of the services offered; the qualifications, training or experience of
its personnel; or the amount of credit improvement the consumer can expect to
receive as a result of the services.

815 ILCS 605/5(4). Sunrise Chevrolet argues Thele’s claim must fail because an auto dealership
is not a credit services organization and, therefore, the Act does not govern its conduct.
The Act defines a credit services organization as
a person who, with respect to the extension of credit by others and in return for the
payment of money or other valuable consideration, provides, or represents that the
person can or will provide, any of the following services:
(i) improving a buyer’s credit record, history, or rating;
(ii) obtaining an extension of credit for a buyer; or
(iii) providing advice or assistance to a buyer with regard to either
subsection (i) or (ii).
815 ILCS 605/3(d). In Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 316, 789
N.E.2d 1248, 1250 (2003), the Illinois Supreme Court held that a home remodeling business that
forwarded its customer’s credit application was not governed by the CSOA. The court found it
“clear that the Credit Services Act regulates transactions involving the payment of money or
other valuable consideration in return for the services of the credit services organization.” Id. at
321, 789 N.E.2d at 1253 (emphasis in original). The court concluded that:
[t]he Credit Services Act is not intended to regulate retailers primarily engaged in
the business of selling goods and services to their customers. The goods and
services provided by retailers are not generally services aimed at improving the
consumer’s credit or obtaining an extension of credit for the consumer, otherwise
unattainable because of the consumer’s poor credit history or rating.

Id. at 324, 789 N.E.2d at 1254-55 (citing Fogle, 2000 WL 1129983).

Applying this holding, an Illinois Appellate Court recently held that the CSOA did not


act, (4) (Thele] relied upon the truth of the statement, and (5) [Thele’s] damages resulted from
reliance on the statement.” Cozzi Iron & Metal, Ine. v. U.S. Office Equipment, Inc., 250 F.3d
570, 574 (7" Cir, 2001) (citing Connick vy. Suzuki Motor Co., 174 Ill. 2d 482, 496, 675 N.E. 2d
584, 591 (1996)). To prevail on her ICFA claim, Thele must show: ‘(1) a deceptive act or
practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3)
the occurrence of the deception in the course of conduct involving trade or commerce, and (4)
actual damage to the plaintiff (5) proximately caused by the deception.” Oliveira y. Amoco Oil
Co., 201 Hil. 2d 134, 149, 776 N.E.2d 151, 160 (2002) (citing Zekman v. Direct American
Marketers, Inc., 182 Ill. 2d 359, 373, 695 N.E.2d 853, 860-61 (1998), and Connick, 174 Ill. 2d at
501, 675 N.E.2d at 593 ). See also Cozzi, 250 F.3d at 576 (also citing Connick). Sunrise
Chevrolet argues it is entitled to summary judgment on both claims because Thele cannot show
either actual damage or a fraudulent misrepresentation. Because we find Thele cannot
demonstrate the former, the Court need not address whether she can demonstrate the latter.

Sunrise Chevrolet argues that even if one of its agents made the alleged
misrepresentation, it is entitled to judgment because Thele suffered no damages when she was
denied financing because her down payment was returned and she made no payments on the
retail installment contract for the Monte Carlo. Sunrise Chevrolet points out that Thele cannot
blame Defendant for the loss of her Envoy because GMAC would have retumed it to her if she
had made the past-due payment that she owed, see Def. Ex. L & M, and that she admits she was
obligated to pay even if she purchased the Monte Carlo and tumed in the Envoy under the Spring
Pull Ahead Program. See Pl.’s Facts § 7. Sunrise Chevrolet also argues that Thele has not

substantiated her claims of aggravation and inconvenience attributable to Defendant or, for that


decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767,
770 (7" Cir. 2003) (citation omitted).

Thele repeatedly cites to her complaint as support for her claim that a genuine issue of
fact exists. But “[t]he nonmovant will successfully oppose summary judgment only when it
presents ‘definite, competent evidence to rebut the motion.”” Vukadinovich v. Board of School
Trustees of North Newton School Corp., 278 F.3d 693, 699 (7" Cir. 2002) (citation omitted).
The nonmovant “must produce more than a scintilla of evidence to support [her] position.” Pugh
v. City of Attica, Indiana, 259 F.3d 619, 625 (7" Cir. 2001) (citation omitted), “The mere denial
ofa particular fact without specific references to affidavits, parts of the record, and other
supporting materials is insufficient, and, where a properly supported factual assertion is met with
such a naked denial, the fact may be deemed admitted.” Fuller v. Caterpillar Inc., 124 F. Supp.
2d 610, 614 (N.D. Ill. 2000) (citations omitted).

Ld. Counts I & 2—fraud

In Counts 1 and 2, Thele alleges that Sunrise Chevrolet committed common law fraud
and violated the Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS
505/2, by misrepresenting that if she purchased the $1,995 extended service warranty contract,
she would be approved for financing with a 9.9 percent annual percentage rate (“APR”). Compl.
7-9. Thele states that if she had known that she would not receive approval for the 9.9 percent
APR, she would not have purchased the extended warranty or the Monte Carlo. Compl. 11. To
prevail on a claim of common law fraud in the formation of a contract, Thele must show that “(1)
{Sunrise Chevrolet] made a false statement of material fact, (2) [Sunrise Chevrolet] knew that the

statement was false, (3) [Sunrise Chevrolet] made the statement intending to induce [Thele] to



under that purchase order or contract and may not retain any part thereof.

815 ILCS 505/2C. Thele admits that after she retummed the Monte Carlo to Sunrise Chevrolet, the
dealership returned her $500 down payment. Pl’s Resp. to Def.’s Facts J 15. But she insists
Sunrise Chevrolet violated 815 ILCS 505/2C by failing to give her back her Envoy after her
application for financing was denied. She argues that the Envoy constituted part of the down-
payment even though it was not a trade-in because it “was part of the consideration of the entire
bargain between Defendant, its agents and the Plaintiff.” Pl.’s Resp. at 9.

Sunrise Chevrolet argues that it is entitled to judgment on Count 3 because Thele did not
turn over the Envoy as part of her down payment for the Monte Carlo. The Court agrees. Thele
admitted that the Envoy’s value did not decrease the cost of the Monte Carlo to her. Thele Dep.
at 33; see also Def.’s Ex. E (Retail Installment Contract denoting “N/A” as value of trade-in).
Thele did not return the Envoy as consideration for the Monte Carlo; rather, as she admitted in
her deposition, she returned the Envoy in consideration for forgiveness — which she received — of
the final five or six months of payments left on her Envoy (but not the past-due payment she
owed at the time she brought in the Envoy). Thele Dep. at 33-34. Accordingly, the Court grants
Sunrise Chevrolet judgment on Count 3.

3. Count 4 — misrepresentation by a credit services organization

In Count 4, Thele alleges Sunrise Chevrolet violated the Illinois Credit Services
Organization Act (“CSOA”), 815 ILCS 605 et seq., by misleading her to believe she would
receive a lower rate of interest if she bought an extended warranty. The Act prohibits a credit
services organization from, among other things,

[mJak[ing] or us[ing] any untrue or misleading representations in the offer or sale


Minure Order Form (06/97),

United States District Court, Northern District of Illinois

i Sitting Ji if Other
NyGrsiautene wae | Matthew F. Kennelly | Skinasuae Owe
CASE NUMBER 03 C 2626 DATE 5/28/2004
CASE Thele vs. Sunrise Chevrolet, Inc.
TITLE

of the motion being presented.)

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

entered in favor of defendant on all counts.

(di) @f {For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) im} Answer brief to motion due___. Reply to answer brief due.

(4) o Ruling/Hearingon__set for at

6) O Status hearing[held/continued to] {set for/re-set for]on___setfor___—_at

(6) Oo Pretrial conference[held/continued to] {set for/re-set for]on____—ssetfor —sat_

(7) Qo Trial[set for/re-set for]on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to__at.

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) Local Rule 41.1 OFRCP41(a)(1) © FRCP41(a)(2).

ao if [Other docket entry] _ For the reasons set forth on the attached Memorandum Opinion and Order,

the Court grants Sunrise Chevrolet’s motion for summary judgment in its entirety (17-1). Judgment is

No notices required, advised in open court.

No notices required.

uniber of notices

Document
Number

Notices mailed by judge's staff.

Notified counsel by telephone.

ov | Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

te mailed notice
courtroom os Hed no

OR deputy's
initials

Date/time received in

central Clerk's Office mailing deputy initials
cz



(A) providing statements of reasons in writing as a matter of course
to applicants against whom adverse action is taken; or
(B) giving written notification of adverse action which discloses (i)
the applicant’s right to a statement of reasons within thirty days after
receipt by the creditor of a request made within sixty days after such
notification, and (ii) the identity of the person or office from which such
statement may be obtained. Such statement may be given orally if the
written notification advises the applicant of his right to have the statement
of reasons confirmed in writing on written request.
15 U.S.C. § 1691(d). As noted in our recitation of the pertinent facts, the four lenders to whom
Sunrise Chevrolet forwarded Thele’s application — that is, Auto One, Nuvell, Triad, and Bank
One ~ sent Thele notice that they were denying her credit and either provided an explanation of
their reasons or stated that Thele could request a statement of reasons that would be provided
within 30 days of the request. See Def. Ex. G-J. Sunrise Chevrolet argues that it did not have to
send proper notice to Thele in addition to the notices she received directly from the four potential
lenders.’
We begin with the language of the statute. Treadway v. Gateway Chevrolet Oldsmobile
Inc., 362 F.3d 971, 975 (7" Cir. 2004) (citation omitted). A subsection of the statute supports
Sunrise Chevrolet’s reading:
Where a creditor has been requested by a third party to make a specific extension
of credit directly or indirectly to an applicant, the notification and statement of
reasons required by this subsection may be made directly by such creditor, or
indirectly through the third party, provided in either case that the identity of the
creditor is disclosed.

15 U.S.C. § 1691(d)(4). This provision suggests that when a third-party requests an extension of

credit for an applicant, either the creditor or the third party — but not both — have to abide by

' Sunrise Chevrolet does not argue that it did not have to provide notice because it is not a
creditor within the meaning of ECOA. See generally Treadway v. Gateway Chevrolet
Oldsmobile Inc., 362 F.3d 971, 979 (7" Cir. 2004).

11


apply to a car dealership even though it assisted the plaintiff in receiving financing to purchase an
automobile. Cannon v. William Chevrolet/GEO, Inc., 341 Il\. App. 3d 674, 684, 794 N.E.2d
843, 851 (2003). The court reasoned that the CSOA did not apply to the dealer even though “it
{wa]s undisputed that William Chevrolet assisted [the plaintiff] in obtaining financing for her
automobile purchase, and indeed obtained a loan commitment from the bank,” because the
plaintiff had presented no evidence that “she paid a fee or gave other valuable consideration
relating solely to efforts made in obtaining the extension of credit.” Id.

Sunrise Chevrolet is not a credit services organization. It is primarily in the business of
selling automobiles, not the business of improving customers’ credit or obtaining credit for them.
Passing its customers’ credit applications to potential lenders is incidental to Sunrise’s business
of selling automobiles. Thele did not pay Sunrise Chevrolet to forward her credit application to
potential lenders; she gave Sunrise consideration only for the car and an extended warranty.
Therefore, the CSOA does not apply to Sunrise Chevrolet’s conduct. The Court grants
Defendant’s motion for summary judgment on Count 4.

4, Count 5 ~ failure to comply with the Equal Credit Opportunity Act

In Count 5, Thele claims Sunrise Chevrolet violated the Equal Credit Opportunity Act, 15
USS.C. § 1691, by failing to send her written notice that she was denied credit and explaining
why. The Equal Credit Opportunity Act requires that:

(1) Within thirty days (or such longer reasonable time as specified in

regulations of the Board for any class of credit transaction) after receipt of a

completed application for credit, a creditor shall notify the applicant of its action

on the application.

(2) Each applicant against whom adverse action is taken shall be entitled

to a statement of reasons for such action from the creditor. A creditor satisfies
this obligation by —

10


matter, her frustration at not getting the Envoy back, which was because she failed to make a
past-due payment to GMAC.

Thele responds by referring back to the damages alleged in her complaint. This is
insufficient to forestall summary judgment. When faced with a motion for summary judgment,
“[{the] party who bears the burden of proof on a particular issue . . . may not rest on its pleadings,
but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of
material fact that requires trial.” Fogle v. William Chevrolet/GEO, Inc., 99 C 5960, 2000 WL
1129983, at *2 (N.D. Ill. Aug. 9, 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). Thele has failed to come forth with any evidence that she suffered tangible or intangible
damages from the alleged misrepresentation. Allegations set forth in her complaint do not
constitute evidence sufficient to create a genuine issue of material fact for trial. See, e.g., Fogle,
2000 WL 1129983, at *6 (dismissing ICFA and common law fraud claims because “plaintiffs
have not presented a shred of evidence to establish a genuine issue of material fact on damages
such that a trial is required”). Accordingly, Sunrise Chevrolet is entitled to summary judgment
on Counts 1 and 2.

2 Count 3 — failure to return the down payment when financing was denied

In Count 3, Thele alleges that after her application for financing was denied, Sunrise
Chevrolet failed to return her down payment in violation of Section 2C of the ICFA, 815 ILCS
505/2C. Section 2C states:

If the furnishing of merchandise, whether under purchase order or a contract of

sale, is conditioned on the consumer’s provided credit references or having a

credit rating acceptable to the seller and the seller rejects the credit application of

that consumer, the seller must return to the consumer any down payment, whether
such down payment is in the form of money, goods, chattels or otherwise, made


stated: “I acknowledge that purchase of this agreement is not required in order to purchase or
obtain financing for a motor vehicle.” Def.’s Ex. F; Def’s Facts {| 9; P1.’s Resp. to Def.’s Facts 4]
9. Plaintiff made a $500 down payment and took possession of the Monte Carlo. Def.’s Facts {
10; P1.’s Resp. to Def.’s Facts § 10. Thele left her Envoy with Sunrise Chevrolet. Def.’s Facts §
11; Pl.’s Facts § 8. GMAC later picked up the Envoy from the dealership. Def.’s Facts ¥ 12;
P1.’s Resp. to Def.’s Facts { 12.

From this point, Thele and Sunrise Chevrolet’s accounts diverge. Thele states that a
salesperson for Sunrise Chevrolet told her that if she purchased the extended warranty for the
Monte Carlo, “they could get [her] at a lower rate and that the bank would probably most likely
approve [her loan].” Pl.’s Dep. at 48. Sunrise Chevrolet states that it submitted Thele’s credit
application to Auto One Acceptance Corp., Nuvell Credit Corp., Triad Financial Corp., and Bank
One, N.A., but all four lenders declined to extend Thele credit and sent her notice of their
decisions. Def.’s Facts { 13. In support of its claim, Sunrise Chevrolet has provided the letter or
a sample of the type of letter that each lender sent to Thele denying her credit, see Def.’s Ex. G-J,
and affidavits from employees of Nuvell, Triad and Bank One stating that the letters were sent
out in accordance with their regular business procedures. See Def.’s Ex. G-I. The letters from
Auto One, Nuvell and Triad are addressed to Thele and refer to her application for credit for the
purchase of a vehicle from Sunrise Chevrolet. See Def.’s Ex. G-H, J. The letters all explain that
the lender is denying Thele credit based in part on a credit report from Trans Union Corp., that
Thele can request a free copy of her credit report from Trans Union, that in compliance with the
Federal Equal Credit Opportunity Act, the lender does not discriminate against credit applicants

on prohibited grounds. Each of the letters provides the specific reasons why her application was


1982 claims because the plaintiff's affidavit denying receipt of Citibank’s declination of credit
created a genuine issue of fact as to the appropriate date on which the statute of limitation began
torun. Thele points to two passages in her deposition as creating a genuine issue of fact as to
whether the lenders provided notice. See Pl.’s Resp. at 12. In the first, she states that almost two
and a half weeks after she took possession of the Monte Carlo, “Sunrise Chevrolet called . . . to
tell me that I didn’t get approved, and that was only because Ms. Adams called them.” PI.’s Dep.
at 50. This does not constitute a denial that she received notice from Nuvell, Triad or Bank One.
The Court sees nothing in the second cited passage, in which Thele talks about GMAC picking
up her Envoy from Sunrise, that can be interpreted as a denial that she received notice from the
lenders. Pl.’s Dep. at 54. Thele has failed to provide any evidence that could rebut the
presumption of delivery, and accordingly, Sunrise is entitled to summary judgment on Thele’s
ECOA claim.
J. Count 6 — failure to comply with Fair Credit Reporting Act

In Count 6, Thele claims that Sunrise Chevrolet violated the Fair Credit Reporting Act,
15 US.C. § 1681m, by failing to provide her notice that it had refused to grant her credit; failing
to tell her that she had 60 days to request a free copy of her credit report; failing to inform her
that she could dispute the accuracy of her credit report; and failing to provide the name, address
and toll-free number of the credit reporting agency that provided the report relied upon by
Defendant. Compl. { 58. Sunrise Chevrolet argues it is entitled to summary judgment on the
FCRA claim for the same reason it was entitled to summary judgment on the ECOA claim — that
is, Sunrise Chevrolet did not have to provide redundant notification.

Only a person who has taken an “adverse action with respect to any consumer that is
‘Yap Pp ly

14


consumer;
(2) provide to the consumer orally, in writing, or electronically —

(A) the name, address, and telephone number of the consumer
reporting agency (including a toll-free telephone number established by the
agency if the agency compiles and maintains files on consumers on a
nationwide basis) that furnished the report to the person; and

(B) a statement that the consumer reporting agency did not make
the decision to take the adverse action and is unable to provide the
consumer the specific reasons why the adverse action was taken; and
(3) provide to the consumer an oral, written, or electronic notice of the

consumer’s right —

(A) to obtain, under section 1681j of this title, a free copy of a
consumer report on the consumer from the consumer reporting agency
referred to in paragraph (2), which notice shall include an indication of the
60-day period under that section for obtaining such a copy; and

(B) to dispute, under section 1681i of this title, with a consumer
reporting agency the accuracy or completeness of any information in a
consumer report furnished by the agency.

15 U.S.C. § 1681m(a). All four letters contained the four requisite items of information. See
Def. Ex. G-J. Thus Sunrise Chevrolet’s motion for summary judgment on Count 6 depends on
whether as a matter of law, FCRA requires redundant notification.

The Court finds that just as redundant notification is not necessary to satisfy the dual
purposes of the ECOA, it is not needed to effectuate the purpose of the FCRA notice
requirement. We agree with Judge Anna Brown’s interpretation of FCRA in Razilov v.
Nationwide Mutual Insurance Co., 242 F. Supp. 2d 977, 989-90 (D. Ore. 2003).

As noted, the purpose of FCRA is to protect consumers from the transmission of

inaccurate information about them. This purpose is accomplished by informing

consumers that their credit history has been used and providing consumers with

the information they need to determine whether the information contained in their

accessed consumer reports is accurate or needs to be corrected. See § 1681m. A

consumer does not need multiple notices from various "participants" about the

same adverse action in order to receive the protection afforded by FCRA. To the

contrary, multiple notices regarding the same transaction would be confusing and

could suggest erroneously that more than one adverse action had been taken. In
any event, the statute does not contain any language that indicates Congress

16



Def.’s Facts ¥ 2; Pl.’s Resp. to Def.’s Facts ] 2. In January 2003, GMAC and General Motors
implemented the Spring Pull Ahead Program, allowing Smart Buy lessees to end their leases
early without penalty if they purchased a new GM vehicle. Def.’s Facts { 4; Pl.’s Resp. to Def.’s
Facts 4. However, to be eligible, participants in the Spring Pull Ahead Program had to pay any
outstanding balances on their leases. Id.

Thele brought her Envoy to Sunrise Chevrolet on February 2, 2003, and attempted to
purchase a 2003 Monte Carlo under the Spring Pull Ahead Program. Def.’s Facts {[ 5; Pl.’s Resp.
to Def.’s Facts 75. At the time, Thele was one month behind on her lease payments for the
Envoy. Def.’s Facts { 3; Pl.’s Facts 5. She understood that she had to pay the missed
installment. Pl.’s Facts 7; Def.’s Resp. to Pl.’s Facts § 7.

Sunrise Chevrolet told Thele she needed to provide a letter verifying her employment,
which she tendered the following day. Def.’s Facts { 6; Pl.’s Resp. to Def.’s Facts { 6. She then
signed a retail installment contract, a finance rider and an extended service warranty contract for
the Monte Carlo. Def.’s Facts | 7; Pl.’s Resp. to Def.’s Facts 7. The finance rider stated:

The customer understands and agrees that Sunrise Chevrolet shall not be obligated

to sell unless a third party agrees to purchase the motor vehicle retail installment

contract by the customer with the purchase contract and this rider. Customer

agrees to reasonably cooperate in obtaining such third party approval including

but not limited to the providing of support documentation for statements on the

credit application. The purchase contract and retail installment contract may be

cancelled at anytime by Sunrise Chevrolet, if Sunrise Chevrolet determines, in its

sole discretion, that it can not obtain third party approval and may be cancelled by

either party within 10 days if third party approval is not obtained on the agreed

terms.

Def.’s Ex. D. Thele testified at her deposition that she signed the rider without reading it. Def.’s

Facts { 8; Pl.’s Resp. to Def.’s Facts 4 8. The extended service warranty contract that she signed


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LISA THELE, )
Plaintiff, }
v. ) Case No, 03 C 2626
SUNRISE CHEVROLET, INC., }
Defendant. } DOCKETED

JUN 0-7 2004
MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Lisa Thele sues Sunrise Chevrolet, Inc. claiming common law fraud and
violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2
and 2C; the Illinois Credit Services Organization Act, 815 ILCS 605/5; the Equal Credit
Opportunity Act, 15 U.S.C. § 1691; and the Fair Credit Reporting Act, 15 U.S.C. § 1681m(a).
Thele’s complaint arises from her unsuccessful attempt to purchase a 2003 Monte Carlo
automobile. Sunrise Chevrolet moves for summary judgment on all of Thele’s claims. For the
reasons stated below, the Court grants Defendant’s motion.

Statement of Facts

The following facts are not in dispute. In June 2000, Thele leased a 2000 GMC Envoy
through the Smart Buy leasing program from a car dealer other than Sunrise Chevrolet. Def.’s
Facts 1; Pl.’s Resp. to Def.’s Facts J 1. She entered into a retail installment contract with

GMAC requiring her to make payments of $556.38 on the first of each month for 35 months.


ECOA’s notification requirements.

Dictum in the Seventh Circuit’s decision in Treadway v. Gateway Chevrolet Oldsmobile
supports this reading. In that case the court addressed “whether an automobile dealership’s
unilateral decision not to submit a credit application to any lender constitutes an ‘adverse action’
for purposes of the ECOA.” Treadway, 362 F.3d at 975. In concluding that it does, the court
said that under § 1691(d)(4), “if the dealer forwarded the credit application to a lender and that
lender determined that the applicant was not creditworthy, either the lender or the dealer would
have to provide notice to the applicant.” Jd. at 976 (emphasis added). See also Brand v. Rohr-
Ville Motors, Inc., 02 C 7103, 2003 WL 21078022, at *2 (N.D. Ill. May 9, 2003) (dismissing
ECOA claim because “[t]he statute does not require Rohr-Ville to give the written notification; it
requires either Rohr-Ville or Household [Automotive Finance] to give the written notification”);
Burns v. Elmhurst Auto Mall, Inc., 00 C 5732, 2001 WL 521840, at *2 (N.D. Ill. May 16, 2001)
(“[I]f only one credit agency is used and the credit agency, not the automobile dealer, notifies the
applicant in writing and states the reasons for the denial, the ECOA reporting requirement is
met.”). This reading of the statute is in keeping with the dual purposes of ECOA’s notice
requirement: “it discourages discrimination and it educates consumers as to the deficiencies in
their credit status.” Treadway, 362 F.3d at 977. Both purposes are met when the potential lender
sends notice to the applicant, and an additional duplicative notice from a third party like Sunrise
Chevrolet would add nothing of significance. Thus, Sunrise Chevrolet is entitled to summary
judgment on the ECOA count if the four lenders complied with § 1691 by sending adequate
notice to Thele.

Thele argues that summary judgment is not appropriate because a genuine issue of fact

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based in whole or in part on any information contained in a consumer report” must comply with
the Act’s notification requirements. 15 U.S.C. § 1681m(a). But Sunrise Chevrolet does not
argue that it did not have to provide notice because it did not engage in an adverse action.
Defendant’s omission of this argument is notable because the Seventh Circuit has stated that it
doubts that a dealership has engaged in an adverse action when a lender denies financing to a car
purchaser whose application was forwarded to the lender by the dealership. Treadway, 362 F.3d
at 983 (citing Najieb, 2002 WL 31906466, at *6 n.14). In Najieb Judge Aspen had explained
that a car dealership does not commit an adverse action by forwarding a consumer’s credit
application — including her credit report — to potential lenders. Najieb, 2002 WL 31906466, at *6
n.14, Absent evidence that the dealership “was further involved in any financial institution’s
decision to decline to extend credit” to the consumer, the consumer’s FCRA claim must fail. Id.
However, the Court cannot grant Sunrise Chevrolet’s summary judgment motion on this basis
because it has not raised the issue.

Before addressing the legal premise on which Sunrise Chevrolet’s motion is based, the
Court will address whether Defendant has met the two predicate factual findings on which its
argument depends — that is, whether Nuvell, Triad, Bank One and Auto One sent notice to Thele
that they were denying her credit and whether the letters complied with 15 U.S.C. § 1681m. We
have already found that Thele has failed to raise a genuine issue as to the former; we now find
the letters comply with the requirements of 15 U.S.C. § 168i1m. FCRA requires any person who
takes “any adverse action with respect to any consumer that is based in whole or in part on any
information contained in a consumer report” to:

(1) provide oral, written, or electronic notice of the adverse action to the

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