505/2. In order to cstablish a cause of action under the Consumer Fraud Act, a plaintiff must
establish the following elements: “(1) the misrepresentation or concealment of a material fact; (2)
an intent by the defendant that the plaintiff rely on that misrepresentation or concealment; and (3)
that the deception occurred in the course of conduct involving trade or commerce.” Randazzo v.
Harris Bank Palatine, N.A., 262 F.3d 663, 671 (7" Cir. 2001) (citations omitted).

A. O’Connor

Defendant O’ Connor argues that there is no evidence that it knew that the vehicle at issue
was a rental car or had previously becn involved in an accident. O’Connor asserts that it could not
have concealed information of which it was unaware, and therefore cannot be liable under the
Consumer Fraud Act.

It is clear that an action for fraudulent concealment “logically demands that defendants have
prior knowledge of the information they are alleged to have suppressed.” Miller v. William
Chevrolet/Geo, Inc., 326 Ill. App. 3d 642, 658, 762 N.E.2d 1, 14, 260 ll. Dec. 735, 748 (2001); see
also Llarkala v. Wildwood Realty, Inc., 200 Ill. App. 3d 447, 453-454, 146 TI. Dec. 232, 237, 558
N.E.2d 195, 200 (1990) (holding real estate broker not liable under Consumer Fraud Act where
broker had no knowledge of property impairments concealed by sellers), Defendant has submitted
an affidavit from its general salcs manager representing that O’Connor had no knowledge that the
vehicle had ever been used as a rental car. Plaintiff’s only evidence that Defendant O’Connor had
knowledge that the vehicle was a rental car is an O’Connor service record, dated January 29, 2001,
which contains the word “Enterprise” in a section on the form entitled “Part Number.” The parties
dispute whether this word proves that the Geo was a rental car with the rental company Enterprise.

While Plaintiff contends that it demonstrates that the vehicle in question was formerly an Enterprise



Plaintiff Brooks has failed to come forward with any evidence or argument that O’Connor
violated the ECOA. She does not allege any acts of wrongdoing against O’Connor in Count IV of
her complaint, Further, Brooks does not present any theory under which O’Connor could be held
liable for the actions of Evergreen Finance. Accordingly, Defendant O’Connor’s motion for
summary judgment with respect to Count TV is granted.

B. Evergreen Finance

Evergreen Finance seeks summary judgment on the basis that there is no genuine issue of
material fact regarding whether its conduct was discriminatory. Plaintiff claims that Defendant
Evergreen Finance discriminated against her when il refuscd to allow her to reinstate her credit
contract without providing proof of employment after her vehicle was rcpossessed. Plaintiff was
not employed. Her only income came from public assistance. Because Plaintiff did not have any
evidence of employment to submit to Evergreen Finance, she claims that Evergreen Finance
discriminated against her, Brooks claims that the requirement of submitting pay stubs or proof of
employment prior to obtaining her vehicle amounts to discrimination under the ECOA.

After Plaintiff's vehicle was repossessed, Evergreen Finance sent her a document entitled
“Notice of Repossession and Right to Redeem (the “Notice”).” (R. 28-1, Pl.’s Mem. in Opp’n to
Summ. J. Ex. E.) The Notice informed Brooks that Evergreen Finance had repossessed her vehicle.
It provided Plaintiff with two methods to get her property back. First, Plaintiff could pay $1,028.24
in back payments and fees, presenting the payment and proof of employment to Evergreen Finance.
Second, Plaintiff could reclaim her vehicle by paying Evergreen Finance the balance on the vehicle
— $6,787.62. The Notice stated, “[i]f you have any questions about this, please call us.” (Jd)

Plaintiff never responded to the Notice. It is uncontested that she did not submit any



The party seeking summary judgment has the burden of establishing the lack of any genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S, 317, 322-23, 106 S. Ct, 2548, 2552, 91 L.
Ed. 2d 265 (1986), The party that bears the burden of proof on a particular issuc, however, may not
rest on ils pleadings but must affirmatively demonstrate (hat there is a genuine issue of material fact.
fd. at 324, 106 8. Ct, at 2553. A mere scintilla of evidence in support of the non-movant’s position
is insufficient. Anderson, 477 U.S. at 252, 106 S. Ct. at 2512. A party will be successful in
opposing summary judgment only if it presents “definite, competent evidence to rebut the motion.”
EEOC y. Sears, Roebuck & Co., 233 F.3d 432, 437 (7" Cir. 2000). The Court “considers the
evidentiary record in the light most favorable to the non-moving parly, and draws all rcasonable
inferences in his favor.” Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7" Cir. 2002). In
doing so, the Court accepts the non-moving parly’s version of any disputed fact but only if it is
supported by relevant, admissible evidence. Bombard v, Fort Wayne Newspapers, Inc., 92 F.34560,
562 (7° Cir, 1996).
i. Count IJ - Tlinois Consumer Fraud Act

In Count Tl, Plaintiff claims that Defendants O’Conmor and Evergreen Finance violated the
Minois Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”), 815 ILCS
503/2, by fraudulently concealing material information regarding the history of the Geo Metro that
O’Connor sold to Plaintiff. Specifically, Plaintiff contends that O’Connor failed to disclose that the
Geo Metro previously had been a rental vehicle and that it had been involved in a prior accident.
Plaintiff sccks recovery against Evergreen Finance based on the FTC Holder rule.

The Illinois Consumer Fraud Act prohibits “unfair methods of competition and unfair or

deceptive acts or practices . . . [used] in the conduct of any trade or commerce... .” 815 ILCS



rental car, Defendant counters that the refcrence merely reflects that O’Connor offered Plaintiff a
rental car from Enterprise when she brought her vehicle in for service. The service record — which
is Plaintiff's only cvidence of O’Connor’s knowledge— does not contain anything that might support
Plaintiff's claim other than the word “Enterprise.” There is no other evidence suggesting that
Brooks’s vchicle was a rental car at Enterprise.

Further, Defendant sold the car to Plaintiff in July, 1999. The service record offered by
Plaintiff is dated January 29, 2001 — over 17 months after Plaintiff purchased the vehicle. This
document does not create an issuc of fact regarding O’Connor’s knowledge at the time of the sale.

With respect to her claim that O’Connor knew that the vehicle had been in an accident when
it sold the vehicle to Plaintiff, Plainti{f points to a report gencrated by CARFAX, a popular internet
database which contains information regarding a used vehicle’s history, The CARFAX report notes:
“Accident Reported with another motor vehicle. Very minor damage reported.” Even if the Court
were to take judicial notice of this report as Plaintiff requests, this solitary piece of evidence does
not support the assertion that O’Connor knew of the accident when it sold the vehicle to Plaintiff.
Defendant O’Connor is entitled to summary judgment on Count Il.

B. Evergreen Finance

Plaintiff argues that Evergreen Finance is liable under the Federal Trade Commission (
“FTC”) Holder Rule which subjects the assignee of a retail installment contract to the same claims
and defenses that could have been asserted against the orginal seller. See 16 C.F.R. § 433.2. Under
Illinois law, however, in order to have an action against an assigncc, a plaintiff must allege and prove
that the assignce’s fraud is active and direct. See Jackson v. South Holland Dodge, Inc., 197 11.2d

39, 258 Ill. Dec, 79, 755 N.E.2d 462, 466 (Ill. 2001); See also Dowdy v. First Metro. Mortgage Co.,



paperwork to Evergreen Finance. Brooks also failed to visit any Evergreen Finance office to inquire
about getting her vehicle back. Brooks has presented no evidence that she made any contact with
Evergrcen Finance after recciving the Notice. Therefore, there is no evidence that anyone at
Evergreen Finance cver told Brooks that she could not have her vehicle back because she was on
disability. Taking all the cvidence in the light most favorable to Plaintiff Brooks, no rcasonable jury
could find that Evergreen Finance denied Plaintiff her right to rcinstate her credit contract because
her income came from public assistance rather than cmployment. Brooks did not take any action to
rcinstate her credit with Evergreen Finance after receiving the Noticc. She merely assumed that she
could not qualify because of the prool-of-cmployment request on the Notice form. Therc is no
evidence that Brooks tried to reinstate her credit or that Evergreen Finance denicd her reinstatement
on any discriminatory grounds. Evergreen Finance’s motion 1s granted.
CONCLUSION
Defendants’ motion for summary judgment is granted. Summary judgment is granted as to

Defendants O’Connor and Evergreen Finance on Counts {I and IV.

DATED: October 22, 2003 ENTERED:

(h.., JAAS

AMY J. ST. HVE
United States MG ct Court Judge



Mimute Grder Form (08/97)

Vv

United States District Court, Northern District of Hlinois

Nay ot Assi iti i
Assigned Judge Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
L) CASE NUMBER 02 C 2478 DATE 10/22/2003
CASE Lula Brooks vs. O’Connor Chevrolet, Inc, and Evergr
TITLE
fn the fullowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

() oO Filed motion of | usc listing in “Motion” box above.]

(2) Oo Brief in support of motion due -

(3) oO Answer brief to motion due _.. Reply to answer brief due

(4) o Ruling/Hearingon______sset fort

(5) im} Status hearing[held/continued to] [set for/re-set for] on set for

(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor at

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

(8) Qo (Bencl/Jury trial] [Hearing] held/continued to at

(9) O This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCPd(m) CO Local Rule 41.1 OOFRCP41(aX1) ( FRCP41(a)(2).

(10) | [Other docket entry] | Enter Memorandum Opinion and Order. Defendants O'Connor Chevrolet and
Evergreen Finance Company's motion for summary judgment is granted. Status hearing set for 10/28/03 is
stricken, Any other pending dates are stricken. Any pending motions are denied as moot.

{
(nes \ a
dil) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
umber of notices

Notices mailed by judge's staff.

Notified counsel by telephone.

ov | Docketing to mail notices.

wv | Mail AO 450 form. eet | 'S

Copy to judge/magistrate judge.

courtroom ety
deputy's
initials

THY

Date/timné received in.

central Clerk's Office’ sailing deputy initials



No. 01 C 7211, 2002 WL 745851, at *3 (N.D. Ill. Jan. 29, 2002).

Plaintiff does not even allege, much less submit any supporting evidence, that Evergreen
Finance directly or actively committed any fraud against her. In addition, the Court had granted
judgment in favor of O’Connor on this very claim. Summary judgment is granted in favor of
Defendant Evergreen Finance on Count II.

ILL = Count IV - Equal Credit Opportunity Act

Plaintiff contends that Evergreen Finance discriminated against her in violation of the Equal
Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691, because it denied Brooks credit based on the
fact that her income derives primarily from a public assistance program. Plaintiff sccks an award
of damages from O’Connor based upon Evergreen Finance’s actions.

The ECOA provides that “[i]t shall be unlawful for any creditor to discriminate against any
applicant with respect to any aspect of a credit transaction . . . (2) because all or part of the
applicant’s income derives from any public assistance program.” 15 U.S.C. § 1691(a)(2). To state
a claim under the ECOA, a plaintiff must prove that she qualifies as an “applicant,” that the
defendant qualifies as a “creditor,” that the alleged occurrences constitute a “credit transaction,” and
that the defendant’s conduct was discriminatory. See Johnson v. Fquicredit Corp., No, 01 C 5197,
2002 WL 448991, at *4 (N.D. Ill, Mar. 22, 2002); Sharp v. Chartwell Fin. Servs. Ltd., No. 99 C
3828, 2000 WL 283095, at *3-4 (N.D. Ill. Mar, 6, 2000). In order to prove discrimination under the
ECOA, Plaintiffmust submit sufficient direct or circumstantial evidence of discrimination to create
a triable issue of fact. Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 715 (7" Cir. 1998). No
burden-shifting doctrines apply in the context of an ECOA discrimination case. Id.

A O°Connor


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

EASTERN DIVISION
LULA BROOKS, )
Plaintiff, ,
. } No. 02 C 2478
O°CONNOR CHEVROLET, INC. ;
and EVERGREEN FINANCE COMPANY, )
Defendants. let
2» £0
MEMORANDUM OPINION AND ORDER Qp

AMY J. ST. EVE, District Judge:

Plaintiff Lula Brooks brought this action against Defendants O'Connor Chevrolet and
Evergreen Finance Company in connection with her purchase and financing of a 1996 Geo Metro.
On September 30, 2002, the Court dismissed Count I of Plaintiffs complaint which alleged a
violation of the Motor Vehicle Cost Savings and Information Act and Count III which alleged a
violation of the Illinois Consumer Fraud Act. (R. 17-1, September 30, 2002, Order.) Defendants
now seek summary judgment on the remaining counts — Count TI (Illinois Consumer Fraud) and
Count TV (Equal Credit Opportunity Act). For the reasons set forth below, Defendants’ motion is
granted.

UNDISPUTED FACTS

On July 26, 1999, Plaintiff Lula Brooks signed a Retail Installment Contract for the purchase

ofa Geo Metro, VIN #2C1MR5295T6748171 (the “vehicle”), with Defendant O’Connor Chevrolet.

(R. 23-1, Def’s Statement of Material Facts J 4.) The Retail Installment Contract was assigned to

Ble



Evergreen Finance Company. (/d. 5.)

Prior to July 27, 2001, Plaintiff Brooks defaulted on her contract with Evergreen Finance due
to late and/or missed payments. (/d. 410.) Because of her late and/or missed payments, Evergreen
Finance had Plaintiff's vehicle repossessed on approximately July 27, 2001. (Jd. 41 1.) After the
repossession, Evergrccn Finance sent Brooks information regarding the procedure to get her vehicle
back. (Ud. 7 12; R. 28-1, Pl.’s Mem. in Opp’n to Summ. J. Ex. E.) Plaintiff did not provide
Evergreen Finance with any of the payments or information that Evergreen Finance requested. (R.
23-1, Def's Statement of Material Facts 4 13.) After July 27, 2001, Brooks never provided any
paperwork or other documents to Evergrcen Finance. (Id. 14.) Evergreen Finance never denied
Plaintiff credit alter her vehicle was repossessed. (/d. 4] 16.) In addition, Plaintiff never went to the
offices of Evergreen Finance to discuss getting her car back after it was tepossessed. (fd. 4 17.)
Defendant never told Brooks that she could not get her vehicle back because she was on disability.
(id. 418.)

ANALYSIS
I. Legal Standard

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 ajudgment as a matter of law.” Fed, R. Civ.
P. 56(c), A genuine issue of triable fact exists only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7"
Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91

L. Ed. 2d 202 (1986).