Demitropoulos v. Bank One Milwaukee, NA, 95 C 1753.

915 F. Supp. 1399

Bill DEMITROPOULOS, on behalf of himself and all others similarly situated, Plaintiff, v. BANK ONE MILWAUKEE, N.A.; and Team Chevrolet, Inc., doing business as Team Chevrolet Geo, Defendants.

No. 95 C 1753.

United States District Court, N.D. Illinois, Eastern Division.

February 12, 1996.

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Daniel A. Edelman, James O. Latturner, Cathleen M. Combs, Tara Leigh Goodwin, James Eric Vander Arend, Michelle Ann Weinberg, Rick D. Young, Edelman & Combs, Chicago, IL, O. Randolph Bragg, Chicago, IL, for plaintiff.

Richard F. Zehnle, Diane Marie Kehl, Christine A. Provost, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Bank One Milwaukee, N.A.

Gary Feiereisel, Terrence Franklin Guolee, Steven R. Johnson, Frank Kasbohm, Fraterrigo, Best & Beranek, Chicago, IL, for Team Chevrolet Inc.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Bill Demitropoulos ("Demitropoulos") sues defendants Bank One Milwaukee, N.A. ("Bank One") and Team Chevrolet, Inc. d/b/a Team Chevrolet and GEO ("Team Chevy"), alleging that Bank One's standard automobile form lease violates the Consumer Leasing Act, 15 U.S.C. § 1667 et seq. (count I), and the Illinois and Wisconsin Consumer Fraud Acts (count II). Demitropoulos contends that Bank One unlawfully failed to make, or improperly made, certain disclosures required under the Consumer Leasing Act, imposed excessive and unreasonable early termination charges, and failed to disclose certain material information, in particular, the "capitalized cost" of the leased automobile. Additionally, Demitropoulos asserts a breach of warranty claim against defendants (count III). Demitropoulos seeks to bring counts I and II as a class representative; count III is brought individually. Defendants' motion to dismiss¹ is presently before the Court as is Demitropoulos' motion for class certification.

RELEVANT FACTS

For purposes of a Rule 12(b)(6) motion to dismiss, we accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). The following recitation of facts is drawn from Demitropoulos' complaint.

On December 12, 1994, Demitropoulos entered into an automobile lease with Bank One covering the lease of a 1994 Chevrolet Corvette ("Lease"). Demitropoulos signed the Lease at Team Chevy, which arranged the Lease. The term of the Lease was 24 months, the total amount of payments under the Lease was less than $25,000, and the vehicle was leased for personal as opposed to business purposes.

In count I of his complaint, Demitropoulos contends that Bank One's Lease does not comply with the Consumer Leasing Act in several respects²: (1) The Lease does not disclose the circumstances under which the consumer can voluntarily terminate the lease prior to the scheduled expiration date and the charge for such early termination; (2) the Lease results in unreasonable early termination charges; (3) the Lease improperly contains material disclosures required by the Consumer Leasing Act on the back of the contract, below the lessee's signature—these include identification of the party responsible for maintaining and servicing the vehicle, and certain of the charges for delinquency, default, or late payments; (4) the Lease does not affirmatively state whether there are express warranties from the manufacturer to the lessee and certain Lease provisions dealing with warranties are misleading and inaccurate; and (5) the Lease's late payment charge is ambiguous in that it fails to disclose how it is computed when part of the payment is made on time.

In count II of his complaint, Demitropoulos contends that by failing to disclose the "capitalized cost" of the leased vehicle³, and by failing to make (or improperly making) disclosures required under the Consumer Leasing Act, the Lease violates the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and the Wisconsin Consumer Fraud statute, Wis.Stat. § 100.18.

In addition to the foregoing class counts, Demitropoulos also asserts an individual breach of warranty claim against the defendants, contending that the Corvette he leased is not merchantable as a luxury sports car. Defendants move to dismiss all three counts for failure to state a claim. We address defendants' contentions as to the three counts in turn below. Thereafter, we address Demitropoulos' motion for class certification as to counts I and II.

ANALYSIS

Rule 12(b)(6) Standards

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). The only question is whether relief is possible under any set of facts that could be established consistent with the allegations. Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir.1995); Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). All well-pleaded facts are taken as true, all inferences are drawn in favor of the plaintiff and all ambiguities are resolved in favor of the plaintiff. Northern Trust, 69 F.3d at 129; Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).

I. Consumer Leasing Act

In 1976, Congress enacted into law the Consumer Leasing Act ("Act" or "CLA"), 15 U.S.C. § 1667-1667e, as an amendment to the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. The Board of Governors of the Federal Reserve System was given rule-writing authority for implementing the CLA; the Board's Regulation M, 12 C.F.R. part 213, implements the Act. The purpose of the Regulation "is to assure that lessees of personal property are given meaningful disclosures of lease terms, to delimit the ultimate liability of lessees in leasing personal property and to require meaningful and accurate disclosures of lease terms in advertising." 12 C.F.R. § 213.1(b). Because the CLA is contained within TILA, the general rules of construction applicable to TILA apply to the CLA; and, as with TILA, the CLA must be liberally construed in the consumer's favor, Kedziora v. Citicorp Nat'l Servs., Inc., 780 F.Supp. 516, 519 (N.D.Ill. 1991); cf. Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1144 (11th Cir.1994) (noting that the Truth in Lending Act is liberally construed in favor of the consumer), and "even the most technical disclosure violations-whether or not they cause actual damage or deception-may trigger liability for the offending creditor." Kedziora, 780 F.Supp. at 519; see also Dwyer v. Barco Auto Leasing Corp., 903 F.Supp. 205, 210 (D.Mass.1995). With this background and standards in mind, we now turn to consider Demitropoulos' CLA claims.

1. Early Termination Conditions

The Consumer Leasing Act requires "a statement of the conditions under which the lessee or lessor may terminate the lease prior to the end of the lease term and the amount or method of determining the amount of any penalty or other charge for early termination." 12 C.F.R. § 213.4(g)(12); see also 15 U.S.C. § 1667a(11). Defendants maintain that ¶ 13 of the Lease complies with the Consumer Leasing Act's early-termination disclosure requirements. That paragraph provides in pertinent part:

13. EARLY TERMINATION AND DEFAULT

a. We may, at our option, terminate this Lease prior to the end of its term under any of the following conditions, which also constitutes default hereunder:

1. You do not make a payment when due;

2. You fail to comply with any of the terms and conditions of the Lease;

3. You are the subject of a proceeding in bankruptcy ...;

4. You fail to comply with the minimum insurance requirements of the Lease ...;

5. You have made any material misrepresentations on your Lease application concerning credit or insurance information;

6. You fail to answer traffic summons or pay fines when due;

7. You die;

8. You fail to notify us in writing within thirty days after you move.

If you default, we will have all rights and remedies provided by law. We will have the right to sue you for damages, and terminate the Lease and take the Vehicle without prior demand....

b. The charge for early termination will be calculated as follows: ...

Lease ¶ 13a. Demitropoulos complains that the foregoing provisions are defective insofar as they do not disclose the circumstances under which a lessee may terminate the Lease prior to the end of its term. Defendants maintain that the Lease "addresses" this issue, stating, "Should a lessee decide to terminate the Lease early, the condition for doing so is that he pay the charges indicated by the formula listed in the agreement." Defs.' Mem. at 2-3.

Although defendants' argument has some superficial appeal, it is unpersuasive. Both the Act and the regulations promulgated thereunder require disclosure of the conditions, if any, under which both the lessor and the lessee may terminate the lease. See 15 U.S.C. § 1667a(11); 12 C.F.R. § 213.4(g)(12).⁴ The Bank One Lease does not clearly do this. Instead, the Lease merely informs the consumer of the conditions under which Bank One may, at its option, declare a default and terminate the lease early. There is no disclosure of the conditions under which a lessee may voluntarily terminate the lease early. As the lease provisions are presently written, a reasonable consumer is left with the impression that he or she has but one option for early termination under the Lease — namely, to put one-self in the position of default as defined in ¶ 13(a), which may well be an undesirable course of action for many. If, in fact, the lessor may voluntarily terminate the lease early, defendants have failed to disclose this fact.

As to defendants' suggestion that the Act's early termination disclosure requirements are met because ¶ 13(b) of the Lease sets out the method for...