United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
Mark Allen Todd brings this action against Defendants Midwest
Motor Sales & Service, Inc. (“Midwest”),
Donald J. Miller, and Eric R. Rittenhouse, alleging
violations of federal and state law, including: (1) the Truth
in Lending Act (TILA), 15 U.S.C. § 1601 et seq.; (2) the
Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691a
et seq.; (3) the Fair Credit Reporting Act (FCRA), 15 U.S.C.
§ 1681 et seq.; (4) the Odometer Act, 49 U.S.C. §
32701 et seq.; (5) Michigan's Motor Vehicle Sales Finance
Act (MVSFA), Mich. Comp. Laws § 492.101 et seq.; (6)
breach of contract; (7) Article Nine of Michigan's
Uniform Commercial Code (UCC), Mich. Comp. Laws §
440.9101 et seq.; and (8) conversion.
initial scheduling conference on June 20, 2016, Plaintiff
indicated that the Michigan Secretary of State had
investigated Defendants' conduct and that documents in
its possession would likely aid Plaintiff's case. The
Court indicated that a settlement conference would be
appropriate in this matter and permitted discovery
“limited to records of the Secretary of State.”
(First Case Management Order, ECF No. 14.) The parties
attended a settlement conference and the case did not settle.
Before the Court is Defendants' motion for partial
summary judgment on Counts I, II, III, IV, V, VII, and VIII
of the complaint (ECF No. 16), Plaintiff's motion for
partial summary judgment on his conversion claim in Count
VIII (ECF No. 17), and Plaintiff's motion for additional
discovery (ECF No. 24).
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. In evaluating a motion for summary judgment
the Court must look beyond the pleadings and assess the proof
to determine whether there is a genuine need for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). If the moving party carries its
burden of showing there is an absence of evidence to support
a claim, then the nonmoving party must demonstrate by
affidavits, depositions, answers to interrogatories, and
admissions on file that there is a genuine issue of material
fact for trial. Celotex Corp. v. Catrett, 477 U.S.
317, 324-25 (1986). Where the moving party bears the ultimate
burden of persuasion at trial, “the moving party's
initial summary judgment burden is higher in that it must
show that the record contains evidence satisfying the burden
of persuasion and that the evidence is so powerful that no
reasonable jury would be free to disbelieve it.”
Cockrel v. Shelby County School Dist., 270 F.3d
1036, 1056 (6th Cir. 2001) (internal quotation marks and
citation omitted). “Summary judgment in favor of the
party with the burden of persuasion . . . is inappropriate
when the evidence is susceptible of different interpretations
or inferences by the trier of fact.” Hunt v.
Cromartie, 526 U.S. 541, 553 (1999).
reviewing a motion for summary judgment, this Court cannot
weigh the evidence, make credibility determinations, or
resolve material factual disputes. Alman v. Reed,
703 F.3d 887, 895 (6th Cir. 2013); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (stating
that on a motion for summary judgment “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge”). “Instead, the evidence
must be viewed, and all reasonable inferences drawn, in the
light most favorable to the non-moving party.” Ohio
Citizen Action v. City of Englewood, 671 F.3d 564,
569-70 (6th Cir. 2012) (citing Matsushita, 475 U.S.
at 587; Biegas v. Quickway Carriers, Inc., 573 F.3d
365, 374 (6th Cir. 2009)). Nevertheless, the mere existence
of a scintilla of evidence is not sufficient to create a
genuine issue of material fact. Liberty Lobby, 477
U.S. at 252. The proper inquiry is whether the evidence is
such that a reasonable jury could return a verdict for the
plaintiff. Id.; see generally Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.
opposes Defendants' motion under Rule 56(d), which
provides that the nonmoving party can oppose a motion for
summary judgment by providing an affidavit or declaration
that, “for specified reasons, it cannot present facts
essential to justify its opposition[.]” Fed.R.Civ.P.
56(d). In such circumstances, the Court may “(1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue
any other appropriate order.” Id. Plaintiff
contends that it cannot respond to the factual assertions in
Defendants' motion for summary judgment without further
discovery. Rule 56 contemplates entry of summary judgment
after “adequate time for discovery.”
Celotex, 477 U.S. at 322. “Typically, when the
parties have no opportunity for discovery, denying [a Rule
56(d)] motion and ruling on a summary judgment motion is
likely to be an abuse of discretion.” CenTra, Inc.
v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008). In
response, Defendants contend that discovery is not necessary
because Plaintiff's claims fail as a matter of law or on
the record as presented to the Court.
following facts are not disputed. On February 27, 2016,
Plaintiff visited Defendant Midwest Motors to purchase a
vehicle. He selected a 2013 Kia Optima, and agreed to
purchase it by trading in his 2002 Jeep Liberty, making a
downpayment of $1, 000, and then paying off the remainder of the
purchase price in monthly installments at an interest rate of
6.25%. Before signing the sales contract, he and his mother
submitted a credit application to Kalsee Credit Union
(“Kalsee”). As a condition for approval by
Kalsee, Plaintiff and his mother were required to apply for a
new account with Kalsee, and they did so. Plaintiff's
credit application was initially approved. Plaintiff signed
the sales contract, made the downpayment, signed an
application to transfer title to the Kia from Midwest to
himself, transferred the license plate from his Jeep to the
Kia Optima, turned over the Jeep to Midwest, and then left
the dealership with his new vehicle. After Plaintiff left the
dealership, Defendants attempted to finalize Kalsee's
approval, but Kalsee declined to provide financing.
Defendants then attempted to recover the Kia from
following facts are alleged in the complaint (ECF No. 1) or
stated in Plaintiff's affidavit (ECF No. 18-9). Before
Plaintiff left the dealership, he did not receive copies of
any of the documents that he signed. Instead, Defendants gave
him a Post-it note with the VIN number for the Kia, which he
used to obtain insurance. Approximately one week after the
sale, someone from Midwest showed up at Plaintiff's
residence and asked his mother to sign a new sales agreement.
She refused to do so. A week later, Defendant Rittenhouse
allegedly contacted Plaintiff and told him to bring the Kia
back to Midwest because his “credit had been
denied.” (Compl. ¶ 37, ECF No. 1.) Defendants
allegedly claimed that the sales contract contained a
condition requiring Plaintiff to qualify for
financing. Plaintiff refused their request.
Defendants Rittenhouse and Miller then threatened to call the
police and to “prosecute” Plaintiff and his
mother as “credit criminals, ” telling Plaintiff
that he would never receive the title to the Kia, and that he
and his mother's credit history would be damaged because
Defendants were not going to pay off the loan on the Jeep.
(Id. at ¶ 41.) Again, Plaintiff refused. He
allegedly told Defendants that he wanted them to honor the
sales contract that he had signed.
be thwarted, Defendants made good on their threats by calling
the police and reporting that Defendant had stolen the Kia.
But the police contacted Plaintiff and declined to take
further action. At that point, Defendants decided to take the
matter into their own hands. According to an investigation
report by the Michigan Secretary of State, two Midwest
employees went to Plaintiff's residence, entered the Kia
using a spare key, and drove it back to the dealership. (ECF
No. 24-2, PageID.336.) Defendants did not return
Plaintiff's Jeep. Defendants sent two additional loan
applications to Kalsee in Plaintiff's name.
(Id.) They also submitted an application to the
state for a “lost title” on the Kia.
(Id. at PageID.337.) They did not make payments on
the outstanding loan for Plaintiff's Jeep, which was
overdue at the time of the state investigation.
primary legal and factual dispute between the parties is
whether or not Midwest's sale of the vehicle to Plaintiff
was conditioned upon Kalsee's approval. Midwest claims
that the sale to Plaintiff was not finalized because Kalsee
refused to provide financing. Plaintiff, on the other hand,
contends that he entered into a binding agreement with
Midwest to purchase the car in monthly installments, and that
Kalsee was involved only as a prospective purchaser of that
agreement. Plaintiff contends that Midwest did not, and could
not, condition the sale of the vehicle upon its ability to
sell the agreement to Kalsee, and thus, Midwest could not
revoke the sale after Kalsee decided not to finance the
transaction. (Alternatively, Plaintiff contends that Midwest
failed to inform him that the sale was conditional.) Several
of Plaintiff's claims stand or fall depending upon
whether the sale was finalized and binding or was conditioned
upon Kalsee's approval. The surest way to resolve this
dispute is to examine the terms of the sales contract between
Plaintiff and Midwest. However, Plaintiff claims that he was
not given a copy of this agreement to take with him when
leaving the dealership. Moreover, due to the limited
discovery allowed by the Court, he has not had an opportunity
to obtain copies of all the relevant sales documents from
Defendants. Consequently, for the reasons discussed in more
detail below, Plaintiff's and Defendants' respective
motions for summary judgment will be denied.
and Defendants both move for summary judgment on
Plaintiff's conversion claim under Michigan statutory and
common law. Conversion under common law is “any
distinct act of domain wrongfully exerted over another's
personal property in denial of or inconsistent with the
rights therein.” Foremost Ins. Co. v. Allstate Ins.
Co., 486 N.W.2d 600, 606 (Mich. 1992). It is not
disputed that Midwest exerted control over the Kia when its
employees repossessed it. Moreover, some evidence indicates
that Plaintiff had a right to the vehicle when Defendants
took it from him. A purchase agreement and retail installment
sales contract are attached to Defendants' motion for
summary judgment. (Retail Installment Sales Contract, ECF No.
16-6; Purchase Agreement, ECF No. 16-7.) The retail
installment sales contract indicates Plaintiff's
agreement to purchase the Kia at a specified price, in
exchange for his Jeep, a downpayment, and monthly payments of
$373.93 to Midwest. (ECF No. 16-6, PageID.215.) It also
contains an integration clause, stating that it
“contains the entire agreement between [Plaintiff] and
[Midwest] relating to this contract, ” and that
“[a]ny change to this contract must be in
writing” and signed by the parties. (Id. at
PageID.216.) This contract contains no provision conditioning
the sale of the vehicle on the approval of a financing
arrangement with Kalsee or any other third party. Indeed, it
refers to Midwest as the “seller - creditor” for
the transaction, and it refers to Kalsee as an
“assignee” from the seller. (Id. at
the Purchase Agreement indicates Plaintiff's intent to
purchase the Kia in exchange for a downpayment and his Jeep.
The portion of the agreement provided by Defendants does not
contain any language conditioning the sale on Kalsee's
approval, but Defendants have not provided the full agreement
to the Court,  and they apparently have not provided it
to Plaintiff. Moreover, Defendants “deny that [the
sales] contract contains no lawful provision conditioning the
sale of the vehicle and Midwest's extension of credit
upon Midwest's subsequent sale of the contract.”
(Answer ¶ 4, ECF No. 7.) In addition, Defendants'
attorney represented at the initial scheduling conference
that “the sale was conditioned upon credit being issued
by Kalsee Credit Union.” (Rule 16 Tr., ECF No. 23,
PageID.310.) Defendants' statements in its answer and at
the scheduling conference are not evidence, but they imply
that somewhere in the agreement between Plaintiff and Midwest
there is a condition that the sale depended upon approval by
Kalsee. At this stage of the proceedings, before ...