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Morales v. Barberino Brothers Inc.

United States District Court, D. Connecticut

May 5, 2016



Charles S. Haight, Jr. Senior United States District Judge

In this action, Plaintiff Marisol Morales brings suit against Defendant Barberino Brothers, Inc. ("Barberino"), an automobile dealership in Wallingford, CT, in relation to Defendant's allegedly improper and deceptive practices in connection with its sale of a car to Plaintiff. Plaintiff brings claims under the federal Truth in Lending Act, 15 U.S.C. § 1601, et seq. ("TILA") and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq. ("CUTPA"). Defendant has moved for summary judgment as to both counts under Rule 56 of the Federal Rules of Civil Procedure, seeking dismissal of Plaintiff's case in full. This Ruling resolves the motion.

I. Background

The following facts are derived from the parties' submissions pursuant to Local Rule 56(a), uncontroverted deposition testimony, and the exhibits attached to the parties' respective memoranda of law. Docs. 34-37. The facts recounted in this section are undisputed or indisputable.

On December 19, 2014, Plaintiff visited Barberino with her boyfriend in search of a new vehicle, her first ever visit to a car dealership. 56(a) ¶ 2; Doc. 35-1, at 27. On a return visit the following day, she completed the purchase of a new 2015 Nissan Altima, effectuated through a Retail Purchase Order and financed via a Retail Installment Contract. 56(a) ¶¶ 2-3; Doc. 34-2. Prior to executing the agreements, Plaintiff spent only 15-20 minutes in Barberino's Finance Manager's office, asked no questions about the paperwork, did not read the Retail Installment Contract, [1] and did not negotiate. 56(a) ¶¶ 5-7; Doc. 34-4, at 35-36. She testified Defendant "told me there was not too much time. I felt like I was being rushed to sign the paperwork. . . . [H]e kept giving it to me, and he said you got to sign here, you got to sign here." Doc. 35-1, at 60.

The cash price Barberino charged Plaintiff for the vehicle was $31, 322.80.[2] Doc. 34-2. However, the manufacturer's suggested price was $24, 150.00, as listed on the "Monroney sticker" attached to the car at the Barberino dealership.[3] Doc. 36-3. Barberino subtracted $3, 500 from the car's cash price of $31, 322.80 to reflect a trade-in discount for Plaintiff's 2001 Toyota Camry, which had accumulated 200, 930 miles and whose actual value approached $0. Id.; Doc. 36-4 Ex. 1, at 40. Plaintiff received the $3, 500 trade-in discount in connection with a promotion that Barberino had been advertising at the time, which provided a $3, 500 discount for trade-in vehicles regardless of actual value. Doc. 36-4 Ex. 1. The conditions of that program were as follows:

1) not negotiable for cash; 2) must be used towards a new or used car; 3) in lieu of negotiation on price of a new or used car; 4) all rebates and incentives to the dealer with customer responsible for applicable tax; and 5) cannot be combined with other offers.

Def.'s Resps. to Plf.'s Interrogatories [Doc. 36-4 Ex. 2] ¶ 5.

Despite its program crediting customers $3, 500 for all trade-in vehicles, Barberino readily acknowledges its policy, which it applied as to Plaintiff's purchase, to include in its initial cash price offer for the car the amount it credits to the customer for the trade-in.[4] Doc. 36-4 Ex. 1, at 32-33.

This came to light during the deposition of Hugo Loureiro, Barberino's General Sales Manager, who testified in detail as to Barberino's price offering process. The process is driven in the first instance by the financing agent with which Barberino works. That entity first provides Barberino what is called a "front-end advance number, " which, at least in this case, amounted to 115% of the manufacturer's invoice, otherwise known as the "book-out invoice number." Here, the book-out invoice number was $22, 672, leading to a front-end advance of $26, 672.80. However,

[t]his [$26, 672.80] is not what they agree to finance. This [$26, 672.80] that they have here is what they agree that you can use as your front-end number, plus cash, rebates, trade. That can be your sale price line, which you notice, our sales price is not [$26, 672.80] it's 31, 123.80, that would be because, like I said, we can take their [$26, 672.80] front-end advance and add any cash, which we have zero, rebate, which we have 1, 750, and trade value, which we have 3, 500, which gives us 31, 123.80. . . . So, we're talking strictly front-end advance with this figure at the top here, but you can add, like I said, any cash, rebates or trade to that number.

Doc. 36-4 Ex. 1, at 31-33 (emphases added). Louriero then clarified that this allowed Barberino to add the $3, 500 trade-in value of Plaintiff's car back into the cash price that Barberino offered Plaintiff for the new car.[5] Louriero acknowledged that it was Barberino's standard procedure to make its initial offer to a customer match the maximum price for a vehicle that was approved by the lender, including the upward additions discussed above, and that it is "then up to the customer to negotiate down from that point." Doc. 36-4 Ex. 1, at 15. Worthy of reiteration, however, is that Barberino's trade-in program did not allow the customer to negotiate. Def.'s Resps. to Plf.'s Interrogatories [Doc. 36-4 Ex. 2] ¶ 5. And, Louriero testified that Plaintiff did not in fact negotiate, and that she accepted the maximum offer with which she was presented. Doc. 36-4 Ex. 1, at 36. In short, then, Barberino's trade-in program policy, which it applied to Plaintiff, was to deduct a $3, 500 purported trade-in value only from a non-negotiable cash price offer that included a $3, 500 upcharge. In other words, Barberino effectively credits customers like Plaintiff $0 for their trade-ins despite advertising that it would offer them a $3, 500 credit. This practice is at the core of Plaintiff's complaint.

To effectuate the purchase of the car, Plaintiff entered into a financing agreement pursuant to the Retail Installment Contract with Barberino, which assigned its interest to non-party Regional Acceptance Corporation ("Regional"). Doc. 34-2. Including costs and fees, Plaintiff agreed to have $29, 280.23 financed through the credit agreement, which carried a $15, 517.45 finance charge, reflecting a 14.95% Annual Percentage Rate. Plaintiff was thereby indebted $44, 797.68, to be paid in 72 monthly installments of $622.19, with first payment due February 3, 2015.

Shortly after purchasing the car, Plaintiff came to believe that Barberino engaged in a multitude of improper and illegal practices in securing her purchase and financing of the car. She brought the instant suit on March 2, 2015, which, pursuant to the Amended Complaint, brings claims for violation of TILA and of CUTPA. She alleges Defendant violated TILA in two ways: (i) failing to accurately itemize the amount financed; and (ii) failing to accurately disclose the finance charge. Doc. 31 ¶¶ 65, 68.[6] As to CUTPA, Plaintiff brought suit in light of a number of allegedly deceptive and unfair acts, which she specifically lists in her summary judgment opposition. Doc. 36, at 6-7. Plaintiff also claims that Defendant violated certain Connecticut Department of Consumer Protection regulations which, she asserts, constitute per se CUTPA violations. Principally, Plaintiff claims that Defendant violated Conn. Agency. Reg. § 41-110b-28(b)(7), which states as follows:

It shall be an unfair and deceptive act or practice for a new car dealer or used car dealer to advertise in any manner the price which will be paid by such dealer for trade-in vehicles unless the price of the vehicle sold by such dealer to the owner of the trade-in vehicle is within the range of prices at which the dealer usually sells ...

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