United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER SUMMARY JUDGMENT ON
DEFAULT DAMAGES AS TO DEFENDANT
MOMENTUM MOTOR GROUP, LLC
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiffs' motion for
summary judgment on default damages (“Motion”).
ECF No. 40 (filed October 27, 2017). The Motion seeks a
determination of damages against Defendant Momentum Motor
Group, LLC (“Momentum”). Id. Momentum is
in default and is the sole Defendant remaining in the action.
ECF Nos. 19, 20.
Motion is supported by factual allegations in the Amended
Complaint (ECF No. 6), admitted as a consequence of
Momentum's default, affidavits of both Plaintiffs (ECF
Nos. 40-1, 40-2), legal argument included in the Motion (ECF
No. 40), and a supplemental memorandum addressing the
availability of damages for emotional distress injuries (ECF
No. 44). Each of these documents was served on Momentum,
which has not filed any response despite passage of the time
to do so. ECF Nos. 43, 44 at 8.
reasons set forth below, the court grants Plaintiffs'
Motion in part, awarding some but not all of the damages
requested under the first through third causes of
action. The court defers entry of judgment to
allow an election of remedies between the second and third
causes of action.
judgment should be granted if “the movant shows 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). It is well established that summary
judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Properties,
810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for
summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the
evidence before it and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers or other materials; or
(b) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Factual Allegations. By virtue of its default,
Momentum has admitted the factual allegations of the Amended
Complaint. Allegations relevant to the causes of action for
which Plaintiffs seek an award of damages are summarized
about February 27, 2017, Plaintiffs Callrina Reid
(“Reid”) and Carolyn Green (“Green”),
went to Momentum's place of business with the intent of
purchasing a car for Reid's use. ECF No. 6 ¶
Reid selected a 2007 Honda Civic (“the car”). ECF
No. 6 ¶¶ 12, 13. After checking Reid's credit,
Momentum advised Reid it could not sell her the car on
credit. Id. ¶ 13. Reid was not provided written
notice of the denial of credit. Id.
then checked Green's credit and advised Green it could
sell her the car on credit. Id. Momentum required
Green to complete a Retail Installment Contract and Security
Agreement (“RIC”) to obtain financing.
Id. The amount to be financed was $5, 606.65 at
24.99% interest, resulting in a total finance charge of $1,
779.74, and total payments of $7, 386.39. Id. ¶
14. The charges included a “closing fee” of $250,
included in the amount financed. Id. The RIC did not
state any of these amounts were estimates. Id. In
addition to the amount financed by Green, Reid made a $2, 500
down payment. Id.
the RIC was completed, “Plaintiffs were assured by
Defendant Momentum that the vehicle had been financed.”
Id. ¶ 16 (alleging they were told United would
be the lienholder).
took the car from the lot after receiving assurances
financing was approved and any preconditions were satisfied
(most critically, a requirement Momentum be able to assign
its contract to a third party). Id. ¶¶ 16,
allege Momentum was the original creditor and sought to
profit by “shopping [the loan] to a variety of finance
companies.” Id. ¶ 18. They further allege
United “purported to pay Momentum the highest
profit” for the loan, but Momentum did not agree to the
offered amount, leading to a later conspiracy between United
and Momentum to attempt to force Plaintiffs to refinance on
less favorable terms. Id. ¶¶ 18, 21.
experienced problems with the car immediately after taking it
home. Id. ¶ 19. She took it back to Momentum
twice, leaving it for repairs for a total of four weeks
during which time she was without use of the car.
Id. ¶¶ 19, 20. The problems were not
resolved despite these efforts. Id.
attempted to make their first payment to United but were told
the loan had been “sent back” to Momentum.
Id. ¶ 21. Plaintiffs contacted Momentum and
were told the credit application had been “turned down
due to the car being driven by Plaintiff Reid.”
Id. Neither Plaintiff was provided written notice of
this credit denial. Momentum stated Plaintiffs would need to
return the car to refinance it. Id. At some point
during this period, the car was repossessed by United and
Plaintiffs were given written notice of the repossession.
Id. ¶ 25. Plaintiffs requested but were denied
return of the $2, 500 down payment. Id. ¶ 21.
assert seven causes of action against Momentum. Their Motion
seeks an award of damages only as to the first three causes
of action, which are discussed, in order,
below. ECF No. 40-1.
Credit Opportunity Act.
first cause of action alleges Momentum is a creditor under
the Equal Credit Opportunity Act, 15 U.S.C. § 1691
(“ECOA”), and violated the ECOA by failing to
provide required notices of credit denials. Id.
¶¶ 28, 29. Plaintiffs allege (1) “Momentum
was required to send Plaintiff Green an adverse action
letter, or other written notice, when it denied Plaintiff
Green credit and sought to restructure the contract”;
and (2) “Momentum was required to provide [Plaintiff]
Reid with an adverse action or other written, notice after
initially denying her credit as opposed to making a blanket
and unsubstantiated statement that Plaintiff Reid had simply
been ‘denied.'” Id. ¶¶ 29,
Plaintiffs' damages demand under this cause of action
reads as follows:
Plaintiffs seek actual damages for physical sickness and
mental suffering, including, but not limited to, worry,
aggravation, stress, humiliation, anxiety, anger, fear,
frustration, inconvenience, mental suffering, loss of sleep
and embarrassment. Plaintiffs also seek the required punitive
damages not to exceed $10, 000 as set forth in the ECOA and
attorneys' fees for Defendants' violations of the
Id. ¶ 32.
Carolina Unfair Trade Practices Act.
second cause of action alleges willful violation of the South
Carolina Unfair Trade Practices Act, SC Code Ann. §
39-5-10, et seq. (“SCUTPA”). It alleges
Momentum (acting in concert with United) fabricated a reason
to deny Green's loan and engaged in a scheme to
“create a never-ending source of income, either by way
of illegally taking down payments on vehicles which
Defendants know they will be repossessing or by using the
payment of a down payment to leverage individuals into
refinancing vehicles at unfavorable terms after the original
financing ‘falls through.'” Id.
¶ 35. Plaintiffs allege a statement in the RIC that
interest began to accrue when the contract was signed was
false because other language stated the RIC did not become
effective until it was assigned to a third-party finance
company. Id. ¶ 36. They allege Momentum engaged
in an unfair or deceptive practice in refusing to return
Reid's $2, 500 down payment and did so for the purpose of
coercing Plaintiffs to enter a new contract more advantageous
to Momentum. Id. ¶ 37. Plaintiffs also allege
Momentum took the $99 payment for the service contract but
never submitted the application to ProGuard. Id.
allege they “have suffered an ascertainable loss due
to” these actions and seek actual damages, treble
damages, attorneys' fees and costs. Id. ¶
40. They identify the following injuries in addition to the
loss of the down payment and payment for a service contract
they did not receive:
Plaintiffs [suffered] worry, humiliation, fear, loss of
sleep, anxiety, nervousness, physical sickness, physical pain
and mental anguish. Additionally, Plaintiffs suffered out of
pocket losses, including but not limited to the cost of
finding replacement transportation, charges associated with
the inspection of the vehicle, and attorneys' fees and
Id. ¶ 41 (alleging the challenged actions were
willful and, therefore, support treble
Carolina Dealer's Act.
their third cause of action, Plaintiffs seek recovery from
Momentum under the South Carolina Dealer's Act, SC Code
Ann. § 56-15-10 (“Dealer's Act”). Under
this cause of action, Plaintiffs allege Momentum is a
“dealer” subject to the Dealer's Act and
violated the Dealer's Act by engaging in unfair and
deceptive acts. Id. ¶ 43. Plaintiffs identify
three actions as supporting this claim: (1) refusal to return
Plaintiffs' down payment; (2) ...