The opinion of the court was delivered by: O'neill, J.
Plaintiff Josiah Kuenzi obtained a loan from defendant Capital One Auto Finance, Inc. to purchase a motorcycle from EuroSport Cycles, Inc. and Don Murray d/b/a EuroSport Cycles, Inc.*fn1 The loan check was cashed but the dealer never delivered the motorcycle to Kuenzi and this action ensued. In his remaining claims in this action, Kuenzi seeks damages, attorney's fees and costs from Capital One*fn2 pursuant to the Truth-in-Lending-Act, 15 U.S.C. § 1601, et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa. Cons. Stat. Ann. § 201-1, et. seq. Capital One now moves for summary judgment as to Kuenzi's remaining claims and its counterclaims for breach of contract and unjust enrichment. For the reasons that follow, I will grant in part and deny in part Capital One's motion.
Kuenzi attempted to purchase a 2003 BMW K1200 LT motorcycle from EuroSport and Murray. On October 31, 2007, he received a buyer's order for the motorcycle from EuroSport and Murray listing a $7,632.00 purchase price for the vehicle. Sometime between October 31 and November 4, 2007 Kuenzi used Capital One's website to apply for a "Blank Check" motorcycle loan. Doc. 65-3 at 8:5-9:24; Doc. 65-4, p. 1.*fn3 Kuenzi received the Blank Check from Capital One on or around November 3 or 4, 2007. Id. at 10:18-20. On November 4, 2007 Kuenzi executed Blank Check number 4910305 in the amount of $7,500.00 and tendered it to EuroSport. Id. at 10:7-13; Doc. 25-1 at p. 2. The face of the Blank Check included the following acknowledgment:
NOTE: By signing and negotiating this check, you become bound by and acknowledge receipt of the Note and Security Agreement delivered to you by Capital One Auto Finance, Inc., and the Truth in Lending disclosure that corresponds to the Model Year of the vehicle purchased and bearing the above check number.
Doc. 25-1, p. 2. Although EuroSport deposited the check, Kuenzi never received the motorcycle.
Kuenzi testified that when he received the Blank Check, it arrived in an envelope unaccompanied by any TILA disclosures or other documents. Doc. 65-3 at 11:7-16. Kuenzi did not retain a copy of the check or the envelope in which it arrived. Id. at 17:23-18-2. Nor has he produced the testimony of any other witnesses as to the contents of the envelope that included the Blank Check. In the affidavit of Adams Yerger, Capital One counters that as a regular practice when Blank Check loans are approved a Blank Check is sent to the person requesting the loan in a packet of documents entitled as the "Blank Check Owner's Manual." Doc. 67 at ¶¶ 3-10. The Blank Check Owner's Manual is a bound packet of documents including TILA disclosures, other instructions and the Blank Check. Id. at ¶¶ 5, 7-9. In order to be used for a purchase, the Blank Check must be torn out of the Owner's Manual. Id. at ¶ 8.
Capital One has produced a Blank Check Owner's Manual that it contends is a copy of that which it delivered to Kuenzi in response to his internet loan application. Doc. 43-1. The copy includes TILA disclosures and a void copy of a Blank Check bearing the same check number (4910305) as the Blank Check that Kuenzi wrote to EuroSport. Id. at p. 2-6. The TILA disclosures included in the Blank Check Owner's Manual copy identify an estimated amount financed of $7,500.00 and note that "[t]he information in the above Disclosures marked with '(e)' are estimates based on the maximum loan amount approved and the approved loan terms." Doc. 42-1 at 6. Notably and in contrast, a second set of TILA disclosures sent to Kuenzi on November 9, 2007, after he executed the Blank Check in the full loan amount of $7,500.00 and tendered it to EuroSport, do not identify the $7,500 amount financed as an estimate.
Even though he never received the motorcycle, Kuenzi made sixteen monthly installment payments -- approximately $4,000.00 -- on the loan before he ceased making payments to Capital One. Doc. 65-3 at 21:19-22:3; Doc. 36-4. As of July 30, 2010, Kuenzi owed $3,700.11 in principal on the Loan and the payoff amount of the Loan with interest was $4,1972.72. Doc. 36-4. The per diem interest rate on the Loan is 1.13538 percent. Kuenzi has admitted that he still owes at least $3,500 to Capital One and testified that he had no intention of paying Capital One the remaining balance due on the loan. Doc. 65-3 at 22:7-9; 25:22-24.
The party moving for summary judgment has the burden of demonstrating 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 255. A fact is "material" if it might affect the outcome of the case under governing law. Id.
To establish "that a fact cannot be or is genuinely disputed," a party must:
(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce ...