Isenbergh v. South Chicago Nissan ( 2020 )

2020 IL App (1st) 190849-UNo. 1-19-0849
Order filed May 13, 2020
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
JOSEPH ISENBERGH, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 16 L 11638
)
SOUTH CHICAGO NISSAN, ) Honorables
) John C. Griffin and
Defendant-Appellee. ) Daniel J. Kubasiak,
) Judges, presiding.
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in dismissing plaintiff’s claim of promissory estoppel
or in subsequently granting summary judgment for defendant on plaintiff’s claims
of fraud, equitable estoppel, and various statutory violations.
¶2 Plaintiff-appellant, Joseph Isenbergh, appeals from two separate orders of the circuit court
in his suit against defendant-appellee, South Chicago Nissan (South Chicago). 1 First, plaintiff
1
South Chicago is apparently now doing business as Western Avenue Nissan.
No. 1-19-0849
argues that the circuit court erred in dismissing his claim of promissory estoppel as barred by the
Statute of Frauds. Second, he contends that the court later erroneously denied him summary
judgment on his other claims and instead granted summary judgment in favor of South Chicago.
For the following reasons, we affirm the circuit court’s judgments.
¶3 I. BACKGROUND
¶4 On January 10, 2008, plaintiff visited South Chicago, an automobile dealership, seeking to
purchase a new 2008 Nissan Versa with a manual transmission, anti-lock brakes, and certain other
features (referred to by plaintiff as “the Permanent Car”). Employees at the dealership informed
plaintiff that they had no such vehicle in stock but could order one for delivery within 60 days.
Plaintiff agreed, and because he needed a vehicle while he waited for the Permanent Car to be
delivered, he inquired whether he could also rent or purchase a used car from the dealership’s stock
in the “$4,000 to $5,000 price range.” According to plaintiff, South Chicago employees countered
with an offer to sell him a second new Versa (which plaintiff refers to as “the Temporary Car”)
and then buy it back for slightly less than the sale price once the Permanent Car arrived. Per the
terms of this alleged arrangement, plaintiff was to pay $550 a month for the Temporary Car while
awaiting delivery of the Permanent Car, and then sell the Temporary Car back to South Chicago
at a “formula price” that would limit his out-of-pocket costs to no more than two of the monthly
payments. Based on South Chicago’s alleged representations, plaintiff believed he would save
approximately $4000 by purchasing and trading in the Temporary Car instead of purchasing a
$5000 used car that would lose any trade in value by the time the Permanent Car arrived. South
Chicago admits selling plaintiff the Temporary Car but denies promising to repurchase it for the
price plaintiff claims.
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¶5 What is certain, though, is that plaintiff read, understood, and signed a retail installment
contract for the Temporary Car that listed the “Cash Price” as $26, 141.00. After accounting for a
trade-in allowance, a down payment, and various itemized taxes and fees, the “Amount Financed”
was calculated as $28,115.19. The contract also identified a total “Finance Charge” of $11,647.53
based on an annual percentage rate of 11.99 %. Thus, the “Total of Payments” was $39,762.72,
which was to be paid in 72 monthly payments of $552.26. Neither the contract itself nor any of the
associated documents reviewed and signed by plaintiff make any mention of South Chicago’s
alleged promise to repurchase the Temporary Car. Instead, the retail order expressly provided that
“no other agreement of any kind, verbal understanding, or promise will be recognized” in
connection with the purchase of the Temporary Car. Similarly, the “WE OWE” agreement stated
that South Chicago owed plaintiff “NOTHING,” and that plaintiff “accept[ed] this WE OWE with
the understanding that ALL promises that are owed to [him] regarding [the] transaction are in
writing.” (Capitalizations in original). The contract was later assigned to AmeriCredit, a finance
company.
¶6 In May 2008, plaintiff returned to South Chicago to pick up the Permanent Car and trade
in the Temporary Car. When South Chicago refused to purchase the Temporary Car for the price
plaintiff claims they had agreed, plaintiff threatened legal action. He also later notified
AmeriCredit of the dispute and that he would cease making the monthly payments for the
Temporary Car. In all, plaintiff made five payments totaling $2761.30 before relinquishing
possession of the Temporary Car to AmeriCredit in April 2010.
¶7 Plaintiff filed his original complaint against South Chicago on July 24, 2008. On April 7,
2009, after AmeriCredit sued plaintiff for the balance due under the Temporary Car contract,
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plaintiff added AmeriCredit as a second defendant. AmeriCredit filed a counterclaim against
plaintiff seeking the payments due under the Temporary Car contract and possession of the
Temporary Car. AmeriCredit also filed a crossclaim against South Chicago, asserting that South
Chicago breached the dealership agreement between AmeriCredit and South Chicago by failing to
defend or indemnify AmeriCredit against plaintiff’s claims. In April 2010, AmeriCredit reached a
settlement agreement with plaintiff which disposed of its counterclaim and of plaintiff’s claims
against AmeriCredit. AmeriCredit was also awarded a default judgment against South Chicago on
the crossclaim. AmeriCredit was thereafter no longer a party to the litigation, and it is not a party
to this appeal.
¶8 On April 27, 2015, plaintiff filed a six-count, fifth amended complaint against South
Chicago alleging common law fraud (count I), statutory fraud under the Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1, et seq. (West 2010))
(count II), violations of the Motor Vehicle Retail Installment Sales Act (MVRISA) (815 ILCS
375/1, et seq.(West 2010)) (count III), violations of the federal Truth in Lending Act (TILA) (15
USC § 1601 (West 2010)) (count IV), breach of contract (count V), and promissory estoppel (count
VI). Plaintiff requested compensatory, statutory, and punitive damages.
¶9 On May 28, 2015, South Chicago filed a combined motion to dismiss the fifth amended
complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1
(West 2014)). The motion sought (1) the dismissal of counts I through IV under section 2-615 of
the Code for failure to state causes of action and (2) the dismissal of count V under section 2-619
of the Code because the purported oral promise to buy back the Temporary Car was not in writing
and thus unenforceable under the Statute of Frauds. The circuit court originally denied South
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Chicago’s motion, but later granted its motion to reconsider with respect to count V only.
Consequently, the court dismissed plaintiff’s breach of contract claim as barred by the Statute of
Frauds. The court denied plaintiff’s motion to reconsider that dismissal, plaintiff appealed, and
this court affirmed. Isenbergh v. South Chicago Nissan, 2016 IL App (1st) 153510 (unpublished
order under Illinois Supreme Court Rule 23).
¶ 10 On December 1, 2015, shortly before plaintiff appealed the dismissal of his breach of
contract claim, he requested and was granted leave to voluntarily dismiss his remaining claims
without prejudice. After losing his appeal, plaintiff re-filed his complaint (without the breach of
contract claim) in the circuit court on November 11, 2016. He amended that complaint in May
2017, though the amended complaint is substantively identical to its predecessor.
¶ 11 On August 3, 2017, South Chicago filed a motion to dismiss the promissory estoppel claim
from the amended complaint, arguing that, like plaintiff’s previously dismissed breach of contract
claim, it was barred by the Statute of Frauds. In response, plaintiff contended that in Newton v.
Kubota, 233 Ill. 2d 46 (2009), our supreme court implicitly recognized that “the Statute of Frauds
ha[s] no bearing on a freestanding claim of promissory estoppel in a complaint in which there was
no claim of breach of contract.” (Emphasis in original.). Following a hearing on September 25,
2017, the transcript of which does not appear in the record on appeal, the circuit court granted
South Chicago’s motion. The court also later denied plaintiff’s motion to reconsider, stating that
Dickens v. Quincy College Corp., 245 Ill. App. 3d 1055 (1993), “expressly found that the
promissory estoppel doctrine is not an exception to the Statute of Frauds.”
¶ 12 On January 1, 2018, plaintiff filed a second amended complaint, this time adding a claim
of equitable estoppel in substitution for his dismissed claim of promissory estoppel. The equitable
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estoppel claim was based on two alleged misrepresentations: (1) South’s Chicago oral promise to
buy back the Temporary Car for around $1100 less than he paid for it, and (2) South Chicago’s
removal of the manufacturer’s suggested retail price (MSRP) sticker from the Temporary Car to
conceal that the price on the installment contract was significantly higher than the sticker price.
South Chicago moved to dismiss the equitable estoppel claim, contending that equitable estoppel
was inapplicable because plaintiff alleged only misrepresentations of future facts. The circuit court
granted South Chicago’s motion with respect to the buy-back promise, but denied the motion with
respect to the removal of MSRP sticker because that allegation involved a misrepresentation of a
currently existing fact.
¶ 13 On August 17, 2018, plaintiff filed a motion for leave to file a third amended complaint
that would have re-asserted his claim of promissory estoppel. However, the circuit court denied
leave, stating that a third amended complaint would have been the tenth iteration of plaintiff’s
claims throughout the course of the litigation and that “allowing yet another opportunity to file an
amended complaint would neither be necessary nor productive” as plaintiff “had several
opportunities to fully present his claims.”
¶ 14 The parties then filed cross motions for summary judgment on January 10, 2019. Plaintiff
argued that he was entitled to summary judgment on four of his five claims (all but equitable
estoppel) due to the preclusive effect of AmeriCredit’s default judgment against South Chicago
for breach of their dealer agreement. Plaintiff also contended that he had proved violations of the
TILA and MVRISA independent of the preclusive effect of the AmeriCredit judgment. In
particular, plaintiff maintained that South Chicago violated the disclosure requirements of both
statutes by (1) failing to disclose that the contract price for the Temporary Car exceeded the MSRP,
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and (2) consequently failing to disclose the actual “finance charge,” i.e. the difference between the
price as financed and the MSRP. Plaintiff also asserted that the Temporary Car contract violated
the MVRISA for various other reasons, including because it was not signed by South Chicago,
“not completed as to all essential provisions” before being signed by plaintiff, and falsely indicated
that plaintiff made a $750 down payment.
¶ 15 South Chicago’s motion for summary judgment argued that: (1) plaintiff’s fraud and
equitable estoppel claims failed because he did not prove actual damages or reasonable reliance
on the alleged buy-back promise, (2) plaintiff’s MVRISA claim failed because that statute does
not authorize a private right of action, and (3) plaintiff’s TILA claim failed because the Temporary
Car contract listed the required disclosures.
¶ 16 On March 29, 2019, the circuit court entered a written order granting summary judgment
for South Chicago on all counts. Therein, the court found that the AmeriCredit judgment did not
entitle plaintiff to summary judgment on the basis of collateral estoppel or law of the case doctrine,
and that South Chicago’s alleged misconduct was not actionable fraud because plaintiff did not
suffer damages and any reliance on the alleged misrepresentations was unreasonable. The court
further found that the Temporary Car contract listed all the disclosures required under the TILA
and MVRISA.
¶ 17 On April 22, 2019, plaintiff filed a notice of appeal challenging both the circuit court’s
September 2017 order dismissing his promissory estoppel claim and the court’s March 2019 order
granting summary judgment in favor of South Chicago.
¶ 18 II. ANALYSIS
¶ 19 A. Promissory Estoppel
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¶ 20 On appeal, plaintiff first argues that the circuit court erred by finding his claim of
promissory estoppel was barred by the Statute of Frauds. As a threshold matter, South Chicago
argues that plaintiff has waived review of the promissory estoppel claim by filing a subsequent
complaint that did not include, reference, or incorporate that claim. In response, plaintiff states
only that South Chicago is “wrong” about the waiver, and explains that he did not include the
promissory estoppel claim in his second amended complaint because the circuit court had already
dismissed the claim and “would undoubtedly have dismissed it again on motion by South
Chicago.” Thus, plaintiff concludes—without any citation to authority—that we may properly
review the circuit court’s dismissal of the claim.
¶ 21 However, the rules governing the preservation of dismissed claims for appeal are “clear
and well settled.” Bonhomme v. St. James, 2012 IL 112393, ¶ 17. Our supreme court has
consistently held that “a party who files an amended pleading waives any objection to the trial
court’s ruling on the former complaints.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner
Corp., 96 Ill. 2d 150, 153 (1983). Furthermore, “ ‘[w]here an amendment is complete in itself and
does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record
for most purposes, being in effect abandoned and withdrawn.’ ” Id. at 154 (quoting Bowman v.
County of Lake, 29 Ill. 2d 268, 272 (1963)). Whether a dismissed claim has been preserved for
appellate review is a question of law that we review de novo. Bonhomme, 2012 IL 112393, ¶ 17.
¶ 22 Here, plaintiff’s claim of promissory estoppel last appeared in his first amended complaint
after the case was voluntarily dismissed and re-filed. Plaintiff subsequently filed a second amended
complaint in the re-filed action, which was “complete in itself” and “[did] not refer to or adopt”
the promissory estoppel claim in any way. As such, he has effectively abandoned and withdrawn
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the claim, and “our consideration of the trial court’s dismissal of that claim is eliminated from this
appeal.” Rubin and Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶ 34.
¶ 23 B. Cross Motions for Summary Judgment
¶ 24 That leaves the circuit court’s ruling on the parties’ cross motions for summary judgment.
By filing cross motions for summary judgment, the parties “agree that only a question of law is
involved and invite the court to decide the issues based on the record.” Pielet v. Pielet, 2012 IL
112064, ¶ 28. The purpose of summary judgment is not to try issues of fact, but to determine
whether a triable issue of fact exists. Barrett v. FA Group, LLC, 2017 IL App (1st) 170168, ¶ 26.
Summary judgment is appropriate only if the pleadings and record show that there is no genuine
issue of material fact and that a party is entitled to judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2018); Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 15. In determining
whether to grant a party’s motion for summary judgment, the court must construe the pleadings
and evidentiary materials in the light most favorable to the nonmoving party. Haslett v. United
Skates of America, Inc., 2019 IL App (1st) 181337, ¶ 38. A trial court’s entry of summary judgment
is reviewed de novo (Seymour v. Collins, 2015 IL 118432, ¶ 42), and we may affirm an order of
summary judgment on any basis appearing in the record (Epple v. LQ Management, LLC, 2019 IL
App (1st) 180853, ¶ 15).
¶ 25 As noted, plaintiff’s second amended complaint, which is operative here, raised five
claims: common law fraud (count I), equitable estoppel (count II), and violations of the Consumer
Fraud Act (count III), the MVRISA (count IV), and the TILA (count V). Plaintiff challenges the
grant of summary judgment with respect to each count.
¶ 26 1. Preclusion
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¶ 27 As he did in the circuit court, plaintiff first contends that he was entitled to summary
judgment on counts I, III, IV, and V of the second amended complaint due to the preclusive effect
of AmeriCredit’s default judgment against South Chicago for violations of their dealer agreement.
In particular, plaintiff contends that the AmeriCredit judgment establishes his claims based on the
doctrines of (1) the law of the case and (2) collateral estoppel.
¶ 28 a. Law of the Case
¶ 29 The law of the case doctrine “generally bars relitigation of an issue previously decided in
the same case.” People ex rel. Madigan v. Illinois Commerce Comm’n, 2012 IL App (2d) 100024,
¶ 31. The doctrine is typically invoked to make questions decided on appeal binding on remand
and in subsequent appeals in the same case. See In re Marriage of Carstens, 2018 IL App (2d)
170183, ¶ 23 (holding that the law of the case doctrine did not apply where the relevant issues had
not been decided on an appeal). The purposes of the doctrine are to avoid indefinite relitigation of
the same issues, promote consistent results within the same case, and ensure that lower courts
follow the decisions of appellate courts. In re Christopher K., 217 Ill. 2d 348, 365 (2005). Notably,
while the doctrine “express[es] the practice of courts generally to decline to reopen what has been
decided,” it does limit a court’s jurisdictional power to address an issue. Id. Application of the law
of the case doctrine is a question of law, which we review de novo. Rommel v. Illinois State Toll
Highway Authority, 2013 IL App (2d) 120273, ¶ 15.
¶ 30 Plaintiff’s law of the case argument turns on his contention that the AmeriCredit judgment
established that the Temporary Car contract “was not free from fraud and misrepresentations” and
that “South Chicago did not comply with federal and state laws ***.” (Emphases in original). A
review of the record, however, reveals that the circuit court made no such findings. AmeriCredit’s
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crossclaim explained that, upon being added as a defendant in the present litigation, it sent a letter
to South Chicago demanding that South Chicago defend and indemnify it against plaintiff’s claims
as provided for in their dealer agreement. However, South Chicago did not respond to the demand
letter, nor did it defend or indemnify AmeriCredit as requested. Consequently, AmeriCredit’s cross
claim raised a single count of breach of contract in that South Chicago had violated paragraphs
6(A), 6(C), 7.A., and 8.B. of the dealer agreement.
¶ 31 Paragraphs 6(A) and 6(C) of the agreement collectively state that South Chicago’s
contracts with customers will be “legitimate, valid, and binding in accordance with their terms,”
“legally enforceable by AMERICREDIT,” “free from fraud,” “in compliance with all applicable
federal and state laws,” and “subject to no defenses, claims, misrepresentation, setoffs or
counterclaims of any kind.” Paragraph 6(A) further warrants that “no suit or legal action or
proceeding has been brought or threatened to be brought” against South Chicago. Similarly,
paragraph 7.A. states that South Chicago “agrees to defend, indemnify, save and hold
AMERICREDIT harmless” in connection with any “lawsuit which may be directed to
AMERICREDIT or to which AMERICREDIT may be made a party” arising from the sale or lease
of a vehicle. Finally, paragraph 8.B. provides that, upon a breach of the dealer agreement, South
Chicago will repurchase the contract in question, reimburse AmeriCredit for costs associated with
the breach, and indemnify AmeriCredit from claims arising from the breach. As such,
AmeriCredit’s crossclaim requested that the court order South Chicago to purchase the Temporary
Car contract for $28,752.62 (the unpaid amount) with interest and attorney’s fees.
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¶ 32 After finding South Chicago in default, the circuit court entered an order stating that
AmeriCredit had “established its liquidated damages and entitlement to the relief requested in the
Cross-Claim.” Consequently, the court awarded AmeriCredit $32,718.90 plus costs.
¶ 33 Plaintiff focuses on the portions of the dealer agreement stating that South Chicago would
form contracts that are “free from fraud” and “in compliance with all applicable federal and state
laws.” From this language, he concludes that the default judgment against South Chicago
necessarily means that the court found the Temporary Car contract not “free from fraud” and not
“in compliance with all applicable federal and state laws.” This conclusion is not logically sound.
Nor are we persuaded by plaintiff’s argument, apparently in the alternative, that “[i]t remains to
be established what the scope of the AmeriCredit Judgment was.” Instead, the clear thrust of
AmeriCredit’s crossclaim was South Chicago’s undisputed failure to defend or indemnify it as
required by the dealer agreement. Thus, any law of the case established in the AmeriCredit
judgment is wholly irrelevant to plaintiff’s claims.
¶ 34 b. Collateral Estoppel
¶ 35 Plaintiff also argues that the AmeriCredit judgment has preclusive effect under the doctrine
of collateral estoppel. Similar to the law of the case doctrine, collateral estoppel is an equitable
doctrine that may be invoked to promote fairness and judicial economy by preventing the
relitigation of issues that have already been resolved in earlier actions. Collateral estoppel is
applicable only if three requirements are met: (1) the issue decided in a prior adjudication is
identical with the one presented in the current suit, (2) there was a final judgment on the merits in
the prior adjudication, and (3) the party against whom estoppel is asserted was also a party to the
prior adjudication. Hurlbert v. Charles, 238 Ill. 2d 248, 255 (2010). The doctrine must be applied
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narrowly to “fit the precise facts and issues that were clearly determined in the prior judgment.”
Nowak v. St. Rita High School, 197 Ill. 2d 381, 391 (2001). We review the applicability of
collateral estoppel de novo. State Building Venture v. O’Donnell, 239 Ill. 2d 151, 158 (2010).
¶ 36 Here, plaintiff’s collateral estoppel argument fails for the same reason as his law of the
case argument. Even assuming, arguendo, that the AmeriCredit judgment was a “final judgment
on the merits” in a “prior adjudication” for purposes of collateral estoppel, the doctrine would still
not apply because the issues raised in plaintiffs’ claims are not identical to those decided by the
AmeriCredit judgment. As such, collateral estoppel is inapplicable, and the circuit court did not
err in failing to grant plaintiff summary judgment based on preclusion.
¶ 37 2. Fraud
¶ 38 Plaintiff next argues that he was entitled to summary judgment on his fraud claims
independently of any preclusive effect of the AmeriCredit judgment. As noted, plaintiff’s second
amended complaint raised both common law fraud and statutory fraud under the Consumer Fraud
Act.
¶ 39 To state a claim of common law fraud, a plaintiff must allege that: (1) the defendant made
a false statement of material fact, (2) the defendant knew the statement was false, (3) the defendant
intended the statement to induce the plaintiff’s action, (4) the plaintiff acted in reasonable reliance
on the truth of the statement, and (5) the plaintiff suffered actual damages as a result. Connick v.
Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 496 (1996).
¶ 40 Statutory fraud, on the other hand, requires a plaintiff to show that: (1) the defendant
engaged in a deceptive act or practice, (2) the defendant intended the plaintiff to rely on the
deception, (3) the deception occurred in the course of trade or commerce, and (4) the plaintiff
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suffered actual damages as a proximate result of the deception. Mulligan v. QVC, Inc., 382 Ill.
App. 3d 620, 625 (2008). Both theories of fraud require the plaintiff to plead and prove actual
damages as a result of the alleged misconduct. Miller v. William Chevrolet/GEO, Inc., 326 Ill.
App. 3d 642, 652 (2001).
¶ 41 Here, plaintiff claims that he was fraudulently induced into the Temporary Car contract by
South Chicago’s misrepresentations. However, as the circuit court correctly found, the
fundamental flaw in plaintiff’s fraud claims is that he cannot establish actual damages as a result
of purchasing the Temporary Car. According to plaintiff’s complaint, but for South Chicago’s
allegedly fraudulent inducement, he would have purchased “a $5,000 used car that would lose all
its value while he waited for delivery of the Permanent Car.” Yet plaintiff alleged that he only
spent $3561.30 ($2761.30 in Temporary Car payments and $800 in travel costs to and from court
to defend against AmeriCredit’s claims) as a result of South Chicago’s misrepresentations while
maintaining possession of the Temporary Car for 27 months. Although plaintiff also claimed
consequential damages of “at least $22,000,” this amount is not reflective of actual damages
because it merely represented what plaintiff says it “would have cost” to retain an attorney to
defend him against AmeriCredit. However, as plaintiff represented himself throughout those
proceedings, he did not actually incur any attorney’s fees as a result of AmeriCredit’s claims.
Plaintiff therefore did not plead actual damages and the circuit court did not err in granting
summary judgment to South Chicago on plaintiff’s fraud claims.
¶ 42 3.The Truth in Lending Act
¶ 43 Plaintiff further contends that the circuit court erroneously rejected his claim that South
Chicago did not make the disclosures required under the TILA. The TILA “is not a general
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prohibition of fraud in consumer transactions or even in consumer credit transactions.” Gibson v.
Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir. 1997). Rather, the TILA was enacted
simply to “assure a meaningful disclosure of credit terms so that the consumer will be able to ***
avoid the uninformed use of credit.” 15 U.S.C. § 1601 (2006). Pursuant to the broad the authority
delegated by Congress (15 U.S.C. § 1604 (2006)), the Federal Reserve Board has promulgated a
comprehensive set of rules, known as Regulation Z, to effectuate the TILA’s purposes. 12 C.F.R.
§ 226 (1981); Lanier Associates Finance, Inc., 114 Ill. 2d 1, 11 (1986). Relevant here, Regulation
Z requires a seller to make five material disclosures to ensure that consumers understand the true
cost of purchasing items on credit, rather than in cash: (1) the “amount financed,” (2) the “finance
charge,” (3) the annual percentage rate, (4) the payment schedule, and (5) the total of payments.
12 C.F.R. § 226 (1981).
¶ 44 Here, the Temporary Car contract explicitly identified the “Amount Financed” as
$28,115.19, the “Finance Charge” as $11,647.53, and, consequently, the “Total of Payments” as
$39,762.72. The amount financed was clearly calculated by adding and subtracting certain
itemized fees, taxes, and deductions from the listed “Cash Price” of $26,141.00. The contract also
identifies the annual percentage rate as 11.99% and the payment schedule as 72 monthly payments
of $552.26 beginning on February 24, 2008. Accordingly, the contract makes all the disclosures
required under the TILA and Regulation Z.
¶ 45 Plaintiff, however, argues that South Chicago hid the true finance charge (and, by
extension, the true annual percentage rate) by falsely inflating the cash price of the Temporary Car.
¶ 46 Regulation Z defines “finance charge” as “the cost of consumer credit as a dollar amount.”
12 C.F.R. § 226.4(a) (2006). It is the sum of charges “imposed directly or indirectly by the creditor
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as an incident to or a condition of the extension of credit.” Id. However, the finance charge does
not include “any charge of a type payable in a comparable cash transaction.” Id. Stated differently,
the finance charge is essentially the difference between what the customer actually pays by
financing the item and what they would have paid had they paid cash (i.e. the cash price).
¶ 47 The key to plaintiff’s argument is his contention that the true cash price of the Temporary
Car was its MSRP, which he says was $15,980. In support of this position, plaintiff observes that
“cash price” is defined in Regulation Z as “the price at which a creditor, in the ordinary course of
business, offers to sell for cash the property or service that is the subject of the transaction.” See
12 C.F.R. § 226.2 (2006). From this definition, plaintiff concludes that the cash price of a vehicle
is equivalent to its MSRP because that price is what a dealer would charge in the ordinary course
of business.
¶ 48 Plaintiff’s interpretation is incongruous with the clear purpose of the TILA, which is to
inform consumers of the actual costs of purchasing with credit rather than cash in a particular
transaction. His interpretation also ignores the fact that the price of a vehicle, unlike many other
consumer goods purchased on credit, is subject to substantial negotiation such that two given
customers might agree to pay different amounts for identical vehicles. Simply put, nothing in the
record suggests that South Chicago offered to sell plaintiff the Temporary Car for $15,980 cash.
Instead, the record shows that the parties negotiated the terms of the Temporary Car contract,
including the cash price, and that plaintiff signed the contract with full knowledge and
understanding of the terms. Indeed, plaintiff testified at his deposition that he “looked most
importantly at the monthly payment” during the negotiations, and agreed to the contract terms
because they were “designed to generate a monthly payment of about $550 which was an agreed
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upon amount between [he] and [South Chicago].” While plaintiff could have perhaps negotiated a
lower cash price, his failure to do so does not mean that South Chicago violated the TILA.
¶ 49 Furthermore, the three cases upon which plaintiff relies are distinguishable, as they all
involved situations in which consumers were unknowingly charged amounts for using credit that
they would not have been had they paid in cash. See Walker v. Wallace Auto Sales, Inc., 155 F.3d
927, 932 (7th Cir. 1998); Gibson, 112 F.3d at 287; Taylor v. Bob O’Connor Ford, Inc., No. 97 C
0720, 1998 WL 177689, at * 7 (N.D. Ill. Apr. 13, 1998). In contrast, plaintiff does not allege that
he was charged more because he paid in credit rather than in cash, but only that a hypothetical
purchaser could have negotiated a cash deal for the MSRP. However, “[i]f a dealer merely charges
what the traffic will bear, the fact that a particular credit customer may be paying a higher mark-
up than a particular cash customer would not transform the difference in mark-ups into a finance
charge” because “it would have in fact no causal relation to the extension of credit.” Gibson, 112
F.3d at 286. Accordingly, the circuit court did not err in granting summary judgment for South
Chicago on plaintiff’s TILA claim.
¶ 50 4. The Motor Vehicle Retail Installment Sales Act
¶ 51 Plaintiff also challenges the circuit court’s grant of summary judgment to South Chicago
on his MVRISA claims.
¶ 52 We first note that the parties apparently agree, correctly, that the MVRISA does not create
a private a right of action or provide for damages to private individuals. See Arca v. Colonial Bank
& Trust Co. of Chicago, 265 Ill. App.3d 498, 502 (1994). However, this court has held that a
private plaintiff may invoke the MVRISA derivatively to prove claims of fraud. Gainer Bank,
N.A., v. Jenkins, 284 Ill. App. 3d 500, 503 (1996). Accordingly, plaintiff contends on appeal that
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he asserted violations of the MVRISA “not to recover damages under the Act, but in support of
[his] fraud and consumer fraud claims against South Chicago.” However, as we have already
determined that plaintiff did not suffer actual damages as a result of South Chicago’s alleged fraud,
any fraud claim based on the MVRISA must also fail. Thus, summary judgment for South Chicago
was appropriate.
¶ 53 5. Equitable Estoppel
¶ 54 Finally, plaintiff contends that the circuit court erred by not granting him summary
judgment on his claim of equitable estoppel The general rule of equitable estoppel is that a party
may not deny its statements or conduct to the detriment of a second party if those statements or
conduct led the second party to do something it otherwise would not have done. In re Scarlett Z.-
D., 2015 IL 117904, ¶ 24. “Equitable estoppel may be defined as the effect of the person’s conduct
whereby the person is barred from asserting rights that might otherwise have existed against the
other party, who, in good faith, relied upon such conduct and has been thereby led to change his
or her position for the worse.” Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313
(2001). To establish a claim of equitable estoppel, a plaintiff must show that (1) the defendant
misrepresented or concealed a material fact, (2) the defendant knew the misrepresentation was
untrue at the time it was made, (3) the defendant intended or expected the plaintiff to act on the
misrepresentation, (4) the plaintiff did not know the misrepresentation was untrue at the time it
was made or acted on, (5) the plaintiff reasonably relied on the misrepresentation in good faith,
and (6) the plaintiff would be prejudiced if the defendant were permitted to deny the
misrepresentation. J.S. Reimer, Inc. v. Village of Orland Hills, 2013 IL App (1st) 120106, ¶ 35.
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No. 1-19-0849
¶ 55 Here, plaintiff’s assertion of equitable estoppel was based on his allegation that South
Chicago removed the MSRP sticker to conceal “the large amount by which the sale price of the
Temporary Car stated in the Retail Installment Contract exceeded the sticker price of that car.”
However, according to plaintiff’s own deposition testimony, he researched the MRSP of a new
Versa before going to South Chicago and believed that the MSRP of the Temporary Car was “about
$16,000 or high 15,000” at the time he negotiated the contract. Nevertheless, he agreed to a finance
the vehicle at a substantially higher base price because it yielded his desired monthly payment,
which was his chief concern. Thus, plaintiff either knew South Chicago’s alleged
misrepresentation of the MSRP was false or acted unreasonably in relying on it. In either case,
plaintiff cannot invoke equitable estoppel. To the extent plaintiff contends that he agreed to the
increased contract price because of South Chicago’s promise to repurchase the Temporary Car, we
note that the circuit court dismissed plaintiff’s attempt to assert equitable estoppel with respect to
the buy-back promise. In any event, the record demonstrates that it would also have been
unreasonable as a matter of law for plaintiff to rely on the buyback promise, as he acknowledged
that he read, understood, and signed documents that did not mention the promise, but explicitly
stated that “no other agreement of any kind, verbal understanding, or promise will be recognized”
and that “ALL promises that are owed to [him] regarding [the] transaction are in writing.”
(Emphasis in original). Under these circumstances, the circuit court properly granted summary
judgment for South Chicago.
¶ 56 III. CONCLUSION
¶ 57 For the foregoing reasons, the judgments of the circuit court are affirmed.
¶ 58 Affirmed.
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