McCray v. Jefferson Chevrolet Company, Incorporated et al

Filing 24

OPINION ANDORDERGRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#14]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE MCCRAY,
Plaintiff,
Case No. 17-cv-12058
v.
UNITED STATES DISTRICT COURT JUDGE
JEFFERSON CHEVROLET COMPANY, INC.,
GERSHWIN A. DRAIN
ET AL.,
Defendants.
______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#14]
I. INTRODUCTION
Presently before the Court is Defendants’ Motion for Summary Judgment.
Dkt. No. 14. Defendants request this Court dismiss the present action because
Plaintiff does not bring enough evidence to support her claims. Plaintiff asserts that
her deposition and other evidence in the record are sufficient to preclude summary
judgment. For the reasons discussed below, the Court will grant in part and deny in
part Defendants’ Motion.
II. FACTUAL BACKGROUND
On July 12, 2016, Plaintiff’s 2004 Trailblazer would not start, and she had it
towed to Defendant Jefferson Chevrolet (Dealer). Dkt. No. 18-1, pg. 7–8 (Pg. ID
-1-

420–21). The next day, Plaintiff learned that her car was not repairable. Id. at pg. 8
(Pg. ID 421). She discussed buying a new car with a salesperson at Jefferson
Chevrolet, Wilson Andrew Roberts. See id. Plaintiff lives off of a limited income.
Plaintiff receives $912.00 per month via Social Security Disability. Id. at pg. 6 (Pg.
ID 419). She also receives about $20.00 per month in child support payments
because she is the primary caretaker of her seven-year-old grandson. Id. at pg. 5,
19 (Pg. ID 418, 432). Plaintiff receives $90.00 per month in food stamps. Dkt. No.
1-2, pg. 4 (Pg. ID 10). Therefore, Plaintiff discussed buying an “affordable” car
with Mr. Roberts, with payments at around $300.00 per month. Dkt. No. 18-1, pg.
8 (Pg. ID 421).
Plaintiff alleges that Defendant Dealer extended her consumer credit to buy
a 2016 Chevrolet Traverse. Dkt. No. 1-2, pg. 3 (Pg. ID 9). Plaintiff states that
Defendant Dealer, through her discussions with Mr. Roberts, told her that it would
accept her 2004 Chevrolet Trailblazer as a trade-in on the purchase of the 2016
Chevrolet Traverse. Id. From her conversation with Mr. Roberts, Plaintiff believed
that the total cost of the 2016 Traverse was $28,000. Dkt. No. 18-1, pg. 14 (Pg. ID
427). Plaintiff’s monthly payments on her 2004 Trailblazer were $381.00 per
month. Id. at pg. 8 (Pg. ID 421). Mr. Roberts told Plaintiff that her monthly
payments on the 2016 Traverse would be less than her payments on her 2004
Trailblazer, about $350.00 per month or lower. Id. at pg. 9 (Pg. ID 422). This is
-2-

despite the fact that the newer car cost more—Plaintiff’s 2004 Trailblazer cost a
total of $10,000 and Plaintiff believed the 2016 Traverse to cost $28,000. Id. at pg.
8–9 (Pg. ID 421–22). Plaintiff did not think this was abnormal because she
believed that she was getting a special deal, similar to deals that she had seen on
television. Id. at pg. 14 (Pg. ID 427). Defendant Dealer also agreed to pay off the
lien—approximately $6,800—on Plaintiff’s 2004 Trailblazer. Id. at pg. 8 (Pg. ID
421).
On July 13, 2016, Plaintiff entered into a Retail Installment Sales Contract
(RISC) with Defendant Dealer. Dkt. No. 14-3. Defendant Dealer assigned the
RISC to Defendant Ally Financial Services, Inc. (Ally Financial). Dkt. No. 1-2, pg.
3 (Pg. ID 9). The first page of the RISC includes Federal Truth-In-Lending
Disclosures, which states the annual percentage rate, finance charge, amount
financed, total payments, and total sale price of the deal. Dkt. No. 14-3, pg. 2 (Pg.
ID 88). The first page of this document also lists Plaintiff’s monthly payment on
the Traverse as $655.69 per month. Id. Plaintiff alleges that she only saw the
second page of the RISC on the day that she signed it. Dkt. No. 18-1, pg. 15 (Pg.
ID 428). Plaintiff also asserts that none of the terms of the contract were filled in
when she signed it, except for a rebate amount of $7,826.00.1 Id. at pg. 11 (Pg. ID

1

The rebate amount of $7,826.00 is on the first page of the RISC. However,
Plaintiff stated in her deposition that she only saw the second page of the RISC
-3-

424). Plaintiff signed the contract despite it being mostly blank because Mr.
Roberts “asked [her] to. He was the dealer, [and Plaintiff] was following his
instructions.” Dkt. No. 18-1, pg. 11 (Pg. ID 424). Plaintiff asserts that she did not
receive any documents before signing the RISC. Id. Plaintiff also states that the
only documents she received to take home after she signed the RISC were
registration documents for the 2016 Traverse. Id.
Plaintiff took possession of the 2016 Traverse after signing the RISC.
Defendant Dealer had Plaintiff’s 2004 Trailblazer towed back to her house for
Gateway, the company with a lien on the Trailblazer, to pick up. Id. at pg. 9 (Pg.
ID 422). Dealer claimed there was no room for Plaintiff’s 2004 Trailblazer on the
lot. Id. at pg. 10 (Pg. ID 423). The keys to the 2004 Trailblazer stayed in the car.
Id. Plaintiff did not know her 2004 Trailblazer was not traded in until Gateway
called and asked for payment on the Trailblazer. Id. at pg. 15 (Pg. 428). Plaintiff
then discovered that Defendant Dealer did not pay off her lien on the 2004
Trailblazer. Id. at pg. 5 (Pg. ID 11). Plaintiff also discovered that the monthly
payments on the 2016 Traverse were higher than what Defendant Dealer had
represented—approximately $655.69 per month. Id. at pg. 6 (Pg. ID 12); Dkt. No.
1-2, pg. 6 (Pg. ID 12). The 2004 Trailblazer was repossessed due to Plaintiff’s

when she signed it. Thus, it is unclear to the Court whether Plaintiff actually saw
the first page of the RISC on the day that she signed it.
-4-

missed payments. Id. at pg. 18 (Pg. ID 431). Plaintiff was also not able to meet her
payments on the 2016 Traverse, and it was repossessed. Id. Plaintiff’s credit score
went from about 690 to 494 after the repossessions. Id. Plaintiff now has to pay
family members to complete her daily travels around town. Id. Plaintiff also states
that she still owes Gateway $6,800, and she owes Ally Financial approximately
$12,000 after the repossession of the 2016 Traverse. Id. at pg. 19 (Pg. ID 432).
Plaintiff filed her complaint in the Circuit Court for Wayne County on May
22, 2017. Dkt. No. 1-2, pg. 16 (Pg. ID 22). In her complaint, Plaintiff alleges eight
counts: (1) fraud and/or misrepresentation, (2) breach of contract, (3) violation of
the Michigan Motor Vehicle Sales Finance Act, (4) violation of the Michigan
Consumer Protection Act, (5) conversion and treble damages, (6) violation of the
Truth in Lending Act, (7) Holder Liability, and (8) exemplary damages. Id. at pg.
6–15 (pg. ID 12–21). On June 23, 2017, Defendants removed the action to this
Court based on federal question jurisdiction for Plaintiff’s claim under the Truth in
Lending Act. Dkt. No. 1. On January 30, 2018, Plaintiff filed a Motion to Reopen
Discovery in order to dispose the salesperson who contracted with Plaintiff,
Wilson Andrew Roberts. Dkt. No. 15. Defendants opposed the Motion on February
12, 2018 citing Plaintiff’s delay in initiating discovery. Dkt. No. 17. This Court
denied the Motion on March 19, 2018. On January 30, 2018, Defendants filed the

-5-

present Motion for Summary Judgment. Plaintiff opposed the Motion on February
21, 2018. Dkt. No. 18. Defendants filed a reply on March 6, 2018. Dkt. No. 21.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) governs summary judgment. The Rule
states, “summary judgment shall be granted if ‘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.’” Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 779 (6th Cir.
1998). “All factual inferences ‘must be viewed in the light most favorable to the
party opposing the motion.’” Id. (quoting Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). There is a genuine issue of material fact
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). Ultimately, the court evaluates “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
IV. DISCUSSION
A. Truth In Lending Act (Count VI)
Plaintiff’s sole federal claim, count six of her complaint, alleges a violation of
the Truth in Lending Act (TILA). Dkt. No. 1-2, pg. 13 (Pg. ID 19). The Truth in
Lending Act requires several disclosures to consumers, such as the amount
-6-

financed, the finance charge, the annual percentage rate, the total of payments, and
the sale price. 15 U.S.C. § 1638. Plaintiff alleges that Defendants violated 15
U.S.C. § 1638(3)–(6), and (9) by not disclosing the amount financed, the finance
charge, the annual percentage rate, the total of payments, the sale price, and the
security interest. See Dkt. No. 1-2, pg. 14 (Pg. 20). Plaintiff also alleges that
Defendants violated 15 U.S.C. § 1638(b) and Regulation Z, 12 CFR §§ 226.17 and
226.18, by not giving Plaintiff a copy of the disclosures in a form that she could
keep prior to signing the RISC. Dkt. No. 19, pg. 7 (Pg. ID 500).
Plaintiff’s deposition testimony asserts that the RISC that she signed was blank
when she signed it, except for the rebate section. Dkt. No. 18-1 at pg. 11 (Pg. ID
424). Plaintiff’s deposition testimony also asserts that Defendant Dealer did not
give her any paperwork to take home with her before she signed the RISC—
Plaintiff only received her registration after she had signed the RISC. Id. Plaintiff
cannot provide any corroborating evidence that the RISC was not filled out when
she signed it besides her own testimony. Id. at pg. 20 (Pg. ID 433). Additionally,
no other evidence in the record supports Plaintiff’s testimony.
Defendant Dealer claims that it provided Plaintiff with all the required
disclosures when she received a copy of the RISC when she bought the 2016
Traverse. Dkt. No. 14, pg. 23 (Pg. ID 154). On page two of the RISC, Plaintiff
signed directly below a statement indicating that before she signed the contract,
-7-

“[Defendant Dealer] gave it to [her], and [Plaintiff was] free to take it and review
it.” Dkt. No. 14-3, pg. 3 (Pg. ID 189 The statement also read, “[y]ou confirm that
you received a completely filled-in copy when you signed it.” Id. Defendants also
provided the affidavit of Brian Tellier, General Manager of Jefferson Chevrolet.
Mr. Tellier testified that it was impossible for the RISC to only have the rebate
amount of $7,826.00 filled in when Plaintiff signed it. Dkt. No. 14-7, pg. 3 (Pg. ID
201). This is because the software that generates the purchase documents can never
print an incomplete form. Id. The software also cannot print on a previously
signed, partially filled-in document. Id. Therefore, Plaintiff’s testimony that the
rebate amount of $7,826.00 was filled in on the contract necessarily requires that
the entire RISC was filled in. Id. at pg. 4 (Pg. ID 202).Wilson Andrew Roberts,
Plaintiff’s salesperson in the RISC transaction, also provided a statement. Mr.
Roberts stated that Plaintiff “was provided a complete and filled-in copy of all the
purchase documents for her review, including the . . . RISC.” Dkt. No. 14-9, pg. 3
(Pg. ID 207).
Other circuits have considered what constitutes sufficient evidence of
compliance with the TILA. The Eighth Circuit has held that an acknowledgement
signed by the appellants that they received a fully completed copy of the disclosure
statement was prima facie proof of delivery. Whitlock v. Midwest Acceptance
Corp., 575 F.2d 652, 653 (8th Cir. 1978). The court continued to say that because
-8-

there was prima facie proof, the appellants could not rely on the allegation in their
complaint that they did not receive disclosures before they signed the contract. Id.
The appellants had to have more evidence in support of their allegation. Id. The
appellants did not offer any support for their allegations by affidavit or deposition.
Id. Therefore, the district court was correct in granting summary judgment. Id. In
this case, Plaintiff also signed an acknowledgement that she received a fully
completed copy of the disclosure statement. However, unlike the appellants in
Whitlock, Plaintiff did provide evidence other than the allegations in her complaint
to support her allegation. Plaintiff provided the deposition testimony that the RISC
was mostly blank, except for the rebate provision, at the time that she signed it.
Plaintiff has more evidence than just the allegations in her complaint. Therefore,
she can survive summary judgment, unlike the appellants in Whitlock.
The Eastern District of Michigan has held that a signed acknowledgement of
delivery, together with an RISC that outlined all the requisite disclosures, complied
with the TILA. Jackson v. Telegraph Chrysler Jeep, Inc., No. 07-10489, 2009 WL
928224, at *2 (E.D. Mich. Mar. 31, 2009). The plaintiffs in Jackson alleged that their
contract contained a hidden finance charge because the defendants did not disclose
the market value of the car plaintiffs were buying. Id. The market price of the car
differed from the cash price the defendants listed on the contract. Id. Here, the
Plaintiff is alleging that she did not receive any disclosures because she signed a
-9-

blank contract. This is unlike the plaintiffs in Jackson, who did not allege that they
failed to receive any TILA disclosures before signing their contract. The Jackson
court did not have to consider testimony from the plaintiffs alleging that they signed
a blank document. Therefore, the Jackson holding is not clearly analogous to the
present case such that this Court can grant summary judgment.
The Eastern District of Virginia considered a similar issue in Harper v. Lindsay
Chevrolet Oldsmobile, LLC. 212 F. Supp. 2d 582, 587 (E.D. Va. 2002). In Harper,
the plaintiff alleged TILA violations, arguing that she did not receive the required
disclosures before she became contractually obligated to the defendant for the
purchase of a car. Id. Plaintiff signed a disclosure document that stated she had
read the retail installment contract, completely filled in. Id. The disclosure
document also acknowledged that the plaintiff received the disclosure before the
retail installment contract and the disclosure was completely filled in before she
signed it. Id. Thus, the court held that the plaintiff had acknowledged in the
contract documents that she had an adequate opportunity to review the retail
installment contract before signing it. Id. The court also noted that in the plaintiff’s
deposition, she stated that the sales representative explained certain portions of the
retail installment contract with her, like the “Itemization of Amount Financed”
section. Id. Therefore, the court held that the record was uncontradicted in

-10-

reflecting that plaintiff was shown the required TILA disclosures in writing before
she signed the contract. Id.
In this case, Plaintiff also signed a disclosure statement stating that she had
received a copy of the RISC, and that the RISC was completely filled in before she
signed it. However, Plaintiff’s deposition did not acknowledge that Defendant
Dealer had explained portions of the RISC to her as it presently appears. Plaintiff
stated in her deposition that Mr. Roberts explained the deal to her, but it was a
different deal than what the filled-in RISC currently looks like. Dkt. No. 18-1, pg.
11 (Pg. ID 424). The only thing Mr. Roberts pointed out to Plaintiff on the RISC
was the rebate. Id. During Plaintiff’s deposition, Defense counsel asked Plaintiff
about the statement of acknowledgement that she signed:
2 … You confirm that you received a
3 completely filled in copy when you signed it."
4 Can you confirm that that says that there?
5 A. Yes, he explained it to me…
Id. at pg. 10 (Pg. ID 423). Defendants assert that Plaintiff’s statement “Yes, he
explained it to me” is an admission that Mr. Roberts explained the
acknowledgment of receipt to her. Dkt. No. 21, pg. 3 (Pg. ID 649). However, it is
unclear exactly what “it” refers to in Plaintiff’s statement. Plaintiff could be
referring to the entire contract deal itself, or to something else. Plaintiff also does
not admit that Mr. Roberts showed her specific finance disclosures. Therefore, the
-11-

present case is different than Harper because in Harper, the record was
uncontradicted in showing that the plaintiff was shown the requisite TILA
disclosures in writing before she signed the contract. Here, the record does not
clearly indicate that plaintiff received the required TILA disclosures and that she
received the disclosures before she signed the RISC.
Plaintiff cites Jenkins v. Landmark Mortgage Corporation of Virginia for the
proposition that acknowledgement of receipt of disclosures only creates a
rebuttable presumption of delivery that cannot stand in the face of testimony that
plaintiff did not receive timely disclosures. 696 F. Supp. 1089, 1093 (W.D. Va.
1988). Jenkins cites this proposition from 15 U.S.C. § 1635(c). The rule that
written acknowledgment only creates a rebuttable assumption is only applicable to
§ 1635, and not to other sections. See 15 U.S.C. § 1635(c) (stating that “written
acknowledgement of receipt of any disclosures . . . by a person to whom
information . . . is required to be given pursuant to this section does no more than
create a rebuttable presumption of delivery thereof.) (emphasis added). Because
the rebuttable presumption is only applicable to § 1635—a section about home
mortgages—Plaintiff cannot properly rely on it to defend her TILA claim.
Therefore, the Court will not consider this argument.

-12-

Defendants also assert the argument that Plaintiff’s deposition testimony is not
enough to withstand summary judgment. 2 This is because it is uncorroborated,
“self-serving testimony.” See Dkt. No. 21, pg. 4 (Pg. ID 645). The Court finds this
argument insufficient to grant summary judgment in favor of Defendants on
Plaintiff’s TILA claim. Sixth Circuit precedent that held self-serving testimony
was insufficient to survive summary judgment did so in the context of a negligence
claim—which required a clear and convincing showing to prevail. Brooks v. Am.
Broadcasting Cos., Inc., 999 F.2d 167, 172 (6th 1993). The Brooks court held that
the district court was not required to accept self-serving testimony to provide clear
and convincing evidence of negligence. Id. However, the clear and convincing
standard is not applicable to Plaintiff’s TILA claim. Further, the Brooks court only
held that the district court was not required to accept self-serving testimony. The
Brooks court did not hold that the district court could not accept self-serving
testimony. Therefore, Plaintiff’s uncorroborated deposition testimony can be
sufficient to preclude summary judgment.
In summary, this Court will deny summary judgment as to Plaintiff’s TILA
claim. Plaintiff’s deposition testimony asserts that Plaintiff signed a nearly blank

2

Defendants assert this argument in the context of Plaintiff’s fraud claim. Dkt. No.
21, pg. 4 (Pg. ID 645). However, the argument is applicable to Plaintiff’s TILA
claim; therefore the Court will consider it for the TILA claim.
-13-

RISC. Defendants provide testimony from Mr. Tellier and Mr. Roberts that the
RISC was not blank when Plaintiff signed it. This conflicting testimony presents a
genuine dispute of material fact that prevents summary judgment. The fact that
Plaintiff signed an acknowledgement that stated the RISC was filled in and that she
reviewed it before she signed is not sufficient to grant summary judgment, as
analyzed above. Therefore, this Court will deny summary judgment on Plaintiff’s
TILA claim.
B. Fraud and/or Misrepresentation (Count I)
Count one of Plaintiff’s complaint alleges fraud and/or misrepresentation. Dkt.
No. 1-2, pg. 6 (Pg. ID 12). Plaintiff states that Defendant Dealer represented to her
that it would accept her 2004 Trailblazer as a trade-in toward the purchase of the
2016 Traverse. Id. Plaintiff also states that Defendant Dealer represented to her
that it would pay off the lien on the Trailblazer. Id. Lastly, Plaintiff states
Defendant Dealer told her that her monthly payments on the Traverse would be
less than her payments on the Trailblazer. Id.
A fraud claim in Michigan requires a showing “(1) [t]hat defendant made a
material representation; (2) that it was false; (3) that when he made it he knew that
it was false, or made it recklessly, without any knowledge of its truth and as a
positive assertion; (4) that he made it with the intention that it should be acted upon
by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby
-14-

suffered injury.” U.S. Fidelity Guaranty Co. v. Black, 313 N.W.2d 77, 114 (Mich.
1981). The plaintiff’s reliance must be “reasonable” to get damages for
misrepresentation. Novak v. Nationwide Mut. Ins. Co., 599 N.W.2d 546, 690
(Mich. Ct. App. 1999). Michigan courts have held that reliance is not reasonable
where plaintiffs had information available to them that they chose to ignore. See
Nieves v. Bell Indus., Inc., 517 N.W.2d 235, 238 (Mich. Ct. App. 1994); Webb v.
First of Mich. Corp., 491 N.W.2d 851, 854 (Mich. Ct. App. 1992).
In this case, it is unclear whether Plaintiff had information available to her—
the RISC—that she chose to ignore. As stated above in this Court’s TILA analysis,
there exists a genuine dispute about whether the RISC was filled in when Plaintiff
signed it. Plaintiff could not have had information available to her that she chose to
ignore if the RISC was not filled in when she signed it. However, even if the RISC
was not filled in, Plaintiff’s reliance was still unreasonable. Reliance is not
reasonable if the statements being relied upon are “preposterous or palpably false,
if the truth was discoverable through minimal investigation, or if a party closes its
eyes to the possibility of misrepresentation.” Peter A. Alces, Law of Fraudulent
Transactions § 2:18 Elements of Fraud—Reasonable Reliance (2018) (citing Mass.
Laborers’ Health & Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 243
(D. Mass. (1999)).

-15-

First, it was not reasonable for Plaintiff to believe that Defendant Dealer was
accepting her 2004 Trailblazer as a trade-in. According to Plaintiff’s own
testimony, she did not sign any documentation transferring the title of the vehicle.
Dkt. No. 18-1, pg. 9 (Pg. ID 422). Plaintiff never received any documents
indicating that she was trading in the Trailblazer. Id. Defendant Dealer never
priced the Trailblazer, nor did it indicate how much credit Plaintiff would get for
the trade-in. Id. As stated by Plaintiff, Defendant Dealer towed the Trailblazer to
Plaintiff’s house for Gateway, Plaintiff’s lender, to pick up. Id. It is not reasonable
to believe that Defendant Dealer would take possession of the Trailblazer as a
trade-in if Gateway would be picking it up. In conclusion, the facts, as stated by
Plaintiff, render it unreasonable for Plaintiff to believe that Defendant would be
accepting her Trailblazer as a trade-in.
Next, it was not reasonable for Plaintiff to believe that Defendant Dealer would
be paying off the loan on Plaintiff’s 2004 Trailblazer. It was unreasonable for
Plaintiff to believe that Defendant was accepting the Trailblazer as a trade-in.
Therefore, Defendant would have no incentive to pay off the loan on the
Trailblazer.
Lastly, it was not reasonable for Plaintiff to believe that her monthly payments
on the 2016 Traverse would be less than the monthly payments on the 2004
Trailblazer. Plaintiff stated that this payment structure did not seem strange to her
-16-

because “you see things on television all the time where prices are knocked down .
. . .” Dkt. No. 18-1, pg. 14 (Pg. ID 427). Plaintiff thought she was getting some
type of special deal. Id. Plaintiff’s 2004 Trailblazer cost a total of $10,000 and
Plaintiff believed that the 2016 Traverse cost $28,000. Id. at pg. 8–9 (Pg. ID 421–
22). It is not reasonable to believe a special deal would include lower monthly
payments for a new car that is nearly three times the cost of an older car. In
conclusion, the facts, as stated by Plaintiff, render it unreasonable for her to believe
that payments on the 2016 Traverse would be less than payments on the 2004
Trailblazer.
In summary, Plaintiff’s fraud/misrepresentation claim against Defendants fails
because there was no reasonable reliance on Defendant Dealer’s alleged
representations. Therefore, this Court will grant summary judgment as to
Plaintiff’s fraud/misrepresentation claim.
C. Breach of Contract (Count II)
Count two of Plaintiff’s complaint alleges breach of contract. Dkt. No. 1-2, pg.
8 (Pg. ID 14). Plaintiff alleges that Defendant Dealer agreed to sell the 2016
Traverse to Plaintiff for payments of less than $350.00 per month, to accept
Plaintiff’s 2004 Trailblazer as a trade-in, and to pay off the loan on the Trailblazer.
Id. Defendant did not keep these promises; therefore Defendant is liable for breach.
Id.
-17-

Plaintiff alleges that, contrary to what the written contract indicates, Defendant
Dealer sold the Traverse to her for monthly payments of $350.00 per month.
However, the Parol Evidence Rule (PER) bars this argument. The PER prevents
the introduction of extrinsic evidence, oral or written, that contradicts the terms of
a written contract. Barclae v. Zarb, 834 N.W.2d 100, 117 (Mich. Ct. App. 2013).
This extrinsic evidence must have occurred before the execution of the written
contract. Id. Here, Plaintiff asserts that Mr. Roberts told her that the payments on
the Traverse would be less than her payments on the Trailblazer. Dkt. No. 18-1, pg.
9 (Pg. ID 422). After this discussion, Plaintiff asserts that she signed the RISC.
See id. In this case, there is a written contract and prior oral communications that
contradict the written contract. Therefore, the PER applies, and the court cannot
consider the alleged oral agreement.
The contract to accept the Trailblazer as a trade-in and pay off the lien that
Defendant allegedly breached was an oral contract. See Dkt. No. 18-1, pg. 9 (Pg.
ID 422) (Plaintiff stated she never received any documents indicating that she was
trading in the Trailblazer). Michigan law follows the Statute of Frauds, which
requires the purchase of goods over $1,000 to be in writing. M.C.L. 440.2201(1).
The Trailblazer is a good that was allegedly traded-in for over $1,000. Therefore,
the Statute of Frauds is applicable to this transaction. The trade-in agreement was

-18-

not in writing. Therefore, it violates the Statute of Frauds and Plaintiff cannot
recover for breach.
In summary, the PER bars Plaintiff’s breach of contract claim regarding the
amount of her monthly payments. The Statute of Frauds bars Plaintiff’s breach of
contract claim regarding the trade-in and payment of the 2004 Trailblazer.
Therefore, this Court will grant summary judgment in favor of Defendants as to
Plaintiff’s breach of contract claim.
D. Michigan Motor Vehicle Sales Finance Act (Count III)
Plaintiff alleges a violation of the Michigan Motor Vehicle Sales Finance Act
(MVSFA). Dkt. No. 1-2, pg. 9 (Pg. ID 15). Plaintiff alleges that Defendant Dealer
failed to maintain a license to engage in installment sales as required by the
MVSFA. Id. Plaintiff also alleges that Defendant Dealer failed to disclose the
necessary information to Plaintiff under the MVSFA because Plaintiff did not
receive a copy of the RISC until she requested it from Defendant Ally Financial.
Id.; Dkt No. 19, pg. 15 (Pg. Id 498).
Defendant Dealer submitted as Exhibit G its Motor Vehicle Installment
License. Dkt. No. 14-8. Therefore, Plaintiff’s assertion that Defendant failed to
maintain its license fails.

-19-

The MVSFA requires that installment sale contracts disclose certain
information, such as the price of the motor vehicle, the down payment made by the
buyer, and the unpaid cash balance, among other things. M.C.L. 492.113. A buyer
must receive this information prior to the signing of the contract. M.C.L.
492.112(b). These requirements are similar to those required by the TILA. Plaintiff
asserts that she did not receive the requisite disclosures because she did not receive
a copy of the RISC until she requested it from Defendant Ally Financial. Dkt No.
19, pg. 15 (Pg. Id 498). Ally Financial provided her with the RISC on August 4,
2016—several weeks after she signed the RISC on July 13, 2016. See Dkt. No. 1-2,
pg. 25 (Pg. ID 31) (letter from Ally Financial responding to Plaintiff’s request for a
copy of the RISC). The Court finds that Plaintiff has presented enough evidence to
preclude summary judgment on this issue. Plaintiff’s allegations create a genuine
dispute about whether she received the required disclosures before she signed the
RISC. See also Section IV.A., supra (analyzing Plaintiff’s TILA claim).
In conclusion, this Court will grant summary judgment on Plaintiff’s MVSFA
claim to the extent that Plaintiff claims Defendant Dealer was not properly
licensed. This Court will deny summary judgment on Plaintiff’s MVSFA claim to
the extent Plaintiff alleges she did not receive the requisite disclosures.

-20-

E. Michigan Consumer Protection Act (Count IV)
Count four of Plaintiff’s complaint alleges a violation of the Michigan
Consumer Protection Act (MCPA), M.C.L. 445.901. Dkt. No. 1-2, Pg. 10 (Pg. ID
16). The MCPA prohibits “unfair, unconscionable, or deceptive methods, acts, or
practices in the conduct of trade or commerce . . . .” M.C.L. 445.903(1). However,
it exempts any “transaction or conduct specifically authorized under laws
administered by a regulatory board or officer acting under statutory authority of
this state or the United States.” M.C.L. 445.904(1)(a). For the exemption to apply,
the general transaction must be specifically authorized by law, regardless of
whether the specific alleged misconduct is prohibited. Liss v. Lewiston-Richards,
Inc., 732 N.W.2d 514, 519 (Mich. 2007).
The Michigan Court of Appeals considered the applicability of the MCPA
exemption in Jimenez v. Ford Motor Credit Company. No. 322909, 2015 WL
9318913, at *6 (Mich. Ct. App. Dec. 22, 2015). The Jimenez court held that a
dealer of motor vehicles was regulated by the Motor Vehicle Code via the
Secretary of State. Id. Therefore, the court held that the sale of the motor vehicle at
issue in Jimenez was a “transaction or conduct specifically authorized under laws
administered by a regulatory board or officer acting under statutory authority of
this state or the United States.” Id. at 7. Thus, the MCPA exemption applied. Here,

-21-

the transaction at issue is also the sale of a motor vehicle. Therefore, like the
Jimenez court, this Court holds that the MCPA exemption applies.
Plaintiff cites several cases to support her argument that the MCPA exemption
does not apply. However, these cases are not sufficiently analogous to the present
case. Plaintiff cites cases that do not involve the sale of a motor vehicle. Plaintiff
also cites Newton v. Bank West, which held:
We decline to engage in a sweeping review of all of the possibilities in which
the MCPA may apply to banks, and we emphasize that, by our decision in this
case, we are not ruling that the banking industry as a whole is exempt
from the provisions of the MCPA. Rather, we find that the specifically
authorized mortgage loan transactions are exempt.
686 N.W.2d 491, 495 (Mich. Ct. App. 2004) (emphasis added). The Newton court
held that the specific transaction of mortgage loan transactions is exempt from the
MCPA, and not the banking industry as a whole. Similarly, the Jimenez court held
that the transaction of selling motor vehicles is exempt from the MCPA, and not the
auto industry as a whole. Therefore, it is not error to follow the analysis of the
Jimenez court, as the court discussed the same transaction as the present case: the
sale of a motor vehicle.
In conclusion, this Court finds that Defendants are exempt from MCPA
liability under the MCPA exemption. Therefore, this Court will grant summary
judgment on Plaintiff’s MCPA claim.

-22-

F. Conversion and Treble Damages (Count V)
Count five of Plaintiff’s complaint brings a claim for conversion and treble
damages. Dkt. No. 1-2, pg. 12 (Pg. ID 18). Plaintiff asserts that Defendant received
Plaintiff’s trade-in vehicle and received funds intended for the pay-off of the
Gateway lien for its own use. Id.
“Conversion is any distinct act of dominion wrongfully exerted over another's
personal property in denial of or inconsistent with his rights therein.” Citizens Ins.
Co. of Am. v. Delcamp Truck Ctr., Inc., 444 N.W.2d 210, 213 (Mich. Ct. App.
1989). In this case, the record does not reflect that there was any conversion.
Nothing in the record establishes that Defendant wrongfully exerted dominion over
Plaintiff’s 2004 Trailblazer. Plaintiff stated in her deposition that Defendant Dealer
had Plaintiff’s 2004 Trailblazer towed back to her house for Gateway, the company
with a lien on the Trailblazer, to pick up. Dkt. No. 18-1, pg. 9 (Pg. ID 422). The
keys to the 2004 Trailblazer stayed in the car. Id. Plaintiff did not know her 2004
Trailblazer was not traded in until Gateway called and asked for payment on the
Trailblazer. Id. Based on these statements, Defendant never wrongfully exerted
dominion over Plaintiff’s Trailblazer. Next, there are no facts in the record that
establish Defendant Dealer converted funds that were intended to pay the Gateway
lien. No evidence supports the conclusion that Defendant wrongfully exerted
dominion over any funds intended to pay off the lien on the 2004 Trailblazer.
-23-

In conclusion, this Court will grant summary judgment on Plaintiff’s conversion
and treble damages claim.
G. Exemplary Damages (Count VIII)
Plaintiff brings a claim for exemplary damages. Dkt. No. 1-2, pg. 15 (Pg. ID
21). Plaintiff states that Defendant Dealer’s acts and omissions were wilful and
wanton and exacerbated Plaintiff’s damages. Id.
Exemplary damages are not allowed unless the defendant’s conduct “was
malicious, or so wilfull and wanton as to demonstrate a reckless disregard of the
plaintiff’s rights.” Getman v. Mathews, 335 N.W.2d 671, 672 (Mich. Ct. App.
1983). In this case, the Court has denied summary judgment as to Plaintiff’s TILA
and MVSFA claims. Based on the record, it is possible to show that Defendant
Dealer’s failure to comply with these statutes was malicious, wilfull, or wanton.
Therefore, this Court will deny summary judgment on Plaintiff’s claim for
exemplary damages.
H. Holder Liability (Count VII)
Lastly, Plaintiff brings all the claims against Defendant Ally Financial that she
brings against Defendant Dealer under holder liability. Dkt. No. 1-2, pg. 15–16
(Pg. ID 20–21). Defendant Dealer assigned its interest in Plaintiff’s RISC to
Defendant Ally Financial. Dkt. No. 14-3, pg. 3 (Pg. ID 189). However, it is not

-24-

clear to the Court what implications this assignment has for the present action.
Neither Plaintiff nor Defendants provide briefing on this issue. 3 Therefore, the
Court will deny summary judgment as to Plaintiff’s Holder Liability claim. The
claims that remain against Defendant Dealer also remain against Defendant Ally
Financial.
V. CONCLUSION
For the reasons discussed herein, the Court will grant in part and deny in part
Defendants’ Motion for Summary Judgment. This Court will dismiss Counts one,
two, three as to the issue of license, four, and five. This Court will not dismiss
Counts three as to the issue of required disclosures, six, seven, and eight.
SO ORDERED.

Dated:

April 26, 2018
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

3

Plaintiff only discusses holder liability in her complaint. Dkt No. 1-2, pg.15–16
(Pg. ID 20–21). Defendants’ sole reference to holder liability in its Motion states,
“[a]s all of Plaintiff’s claims against Ally are derivative of the unfounded claims
against Jefferson, those claims must be dismissed as well.” Dkt. No. 14, pg. 28 (Pg.
ID 159).
-25-