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Sterling v. Ourisman Chevrolet of Bowie Inc.

United States District Court, D. Maryland, Southern Division

May 8, 2015



PAUL W. GRIMM, District Judge.

Plaintiff Monica Sterling went to Defendant Ourisman Chevrolet of Bowie, Inc. ("Ourisman"), where Ourisman employees (and Defendants) Henry Hylton, William Taliaferro, and Lewis Gilinsky assisted her in the initial steps of trading in her vehicle and purchasing a new one. While Plaintiff's finance application was pending with the lender, Defendants accepted her trade-in vehicle, the parties completed all other paperwork, Plaintiff made her down payment, and she took possession of the new vehicle. Weeks later, Defendants demanded that Plaintiff return the new vehicle because her financing did not go through. Plaintiff filed suit against Defendants and Ally Financial, Inc. ("Ally Bank"), [1] alleging that Defendants misled her to believe that the sale was final when she left the lot with the new vehicle. After the Court's resolution of Defendants' Motion to Dismiss, ECF No. 5, three of Plaintiff's eleven claims remain, for violations of the Fair Credit Reporting Act, ("FCRA"), 15 U.S.C. § 1681 et seq., the Maryland Consumer Protection Act, ("MCPA"), Md. Code Ann., Com. Law § 13-101 et seq., and common law fraud. Mem. Op. & Order, ECF Nos. 16 & 17, Defendants now move for summary judgment as to these claims, ECF No. 56.[2] Because no genuine dispute of material fact exists and Defendants are entitled to judgment as a matter of law, as discussed below, their Motion IS GRANTED.


On September 11, 2012, Plaintiff went to Ourisman to purchase a vehicle. Defendants informed her that she would have to apply for financing through an application that Defendants would submit to various lenders unrelated to Ourisman. Defs.' Mem. 2; Pl.'s Opp'n 4.[4] Gilinsky "told the Plaintiff that he had pulled her credit report after she had decided that she wished to purchase the Equinox." Pl.'s Opp'n 4; Defs.' Reply 3-4. The potential lender required Plaintiff to submit a copy of Schedule C from her 2011 tax return as proof of income. Defs.' Mem. 2. Plaintiff provided a copy of Schedule C from her 2010 tax return instead. Id. at 2-3. She traded in her old vehicle and paid a deposit, and Defendants allowed her to take the new vehicle, even though the finance application still was pending. Id. at 3-6. The lender, and then Taliaferro, notified Plaintiff more than a week later that she also had to provide a form 4506-T so that the lender could pull copies of her tax returns. Id. at 3. The lender also congratulated her on her purchase. Pl.'s Opp'n 4; Defs.' Reply 4. She claims that she then learned that neither her 2010 nor her 2011 tax returns had been filed, but she submitted the form 4506-T anyhow. Defs.' Mem. 3-4.

Taliaferro told Plaintiff on October 1, 2012 that, without her tax returns, the loan would only go through if her husband co-signed for it. Defs.' Mem. 4; Pl.'s Opp'n 5. Because she did not want her husband to co-sign, Plaintiff returned the vehicle on October 6, 2012. Defs.' Mem. 4-5. She received a letter from Ally Bank on October 12, 2012, informing her that it denied her application, in whole or in part based on her credit report. Pl.'s Opp'n 5; Defs.' Reply 7 & Ex. H. Meanwhile, Defendants had replaced the tires on Plaintiff's old vehicle, and when she returned the new vehicle, they said that she would have to pay for the improvements made to her trade-in vehicle, and for her use of the new vehicle. Defs.' Mem. 5. In the end, however, Plaintiff was not charged for either the new tires or her use of the new vehicle, and Defendants refunded her deposit. Id. at 5-6.


Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations... admissions, interrogatory answers, or other materials, " that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). A "genuine" dispute of material fact is one where the conflicting evidence creates "fair doubt"; wholly speculative assertions do not create "fair doubt." Cox v. Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin, v. Baxter Healthcare Corp., 197 F.Supp.2d 669, 671 (D. Md. 1999). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.


A. FCRA Violation (Count IV)

The FCRA provides for civil liability for "any person [that] 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, " if the person taking action fails to give the consumer, inter alia, "notice of the adverse action." 15 U.S.C. § 1681m(a); see Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52-53 (2007). It is undisputed that Plaintiff was denied financing by Ally Bank (an entity unrelated to Ourisman), and Plaintiff claims that Defendants violated the FCRA by failing to provide notice to her of this adverse action. Compl. ¶¶ 133-34. Defendants argue that summary judgment in their favor is appropriate because the undisputed evidence establishes that it was not Ourisman that denied Plaintiff credit, and Ourisman's decision not to help Plaintiff secure financing and to make Plaintiff return the vehicle was based on her failure to file her tax return and not based on her credit report. Defs.' Mem. 8. Alternatively, they contend that no private cause of action exists for a violation of § 1681m. Defs.' Reply 14-19.[5]

1. Basis of decision

Plaintiff insists that Ourisman, as a car dealership, was required to provide notice of the adverse action. For purposes of Defendants' motion, I assume, arguendo, that Plaintiff is correct in this regard. Additionally, she contends that "the evidence in fact shows that the denial was at least partially based on Ms. Sterling's credit report, as evidenced by a letter from Ally Bank regarding the poor state of Ms. Sterling's credit at the time, and the attempt by Defendant William Taliaferro to get a co-signer." Pl's Opp'n 10; see Pl.'s Surreply 4 ("[T]he contents of the Ally Letter and other evidence [i.e., Plaintiff's testimony that Ourisman's told her that she needed someone to co-sign for the car if she wanted to keep it] suggest[] that the decision was made based on Plaintiff's credit."). Plaintiff attached the October 12, 2012 letter she received from Ally Bank ("Ally Bank Letter") to her Opposition. Pl.'s Opp'n Ex. A, ECF No. 58-1. Indeed, the Ally Bank Letter states:

We were recently informed by Ourisman... that it was considering the credit sale or lease of an automobile or other product to you and asked whether we would be prepared to accept your obligation if the transaction was completed.
We must regretfully inform you that we were not agreeable to handling the proposed transaction as submitted. We would, however, be agreeable to handling the transaction under the modified terms which have been relayed to the dealer.
Our decision was based in whole or in part on information in a report from the credit reporting agency ....

Id. (emphasis added). As Plaintiff sees it, "if Ourisman claims that it did not go through with the sale because it was unable to assign financing, and it was unable to assign financing because the potential assignee based its denial in whole or in part on the credit report, then it was part of Ourisman's decision as well." Pl.'s Opp'n 11. Plaintiff does not provide either legal or factual support for this theory, and therefore it does not create a genuine dispute of material fact. See Cox v. ...

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