The opinion of the court was delivered by: Clifford H. Ahrens, Presiding Judge
Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker
Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Crandall, Jr., and Karohl, J., concurs.
John Bell appeals from summary judgment entered on April 14, 1997 against him and in favor of respondent, the May Department Stores Company, d/b/a Famous Barr Company (Famous Barr), on Count I of his petition for violation of the Truth in Lending and Fair Credit Billing Acts, 15 U.S.C. Sec. 1601, et seq., and Regulation Z, specifically 12 C.F.R. Sec. 226.13, and on Count II of his petition for tortious interference with credit expectancy. We affirm in part and reverse and remand in part.
On appeal, we test the propriety of summary judgment using the same criteria that the trial court employed to determine the propriety of sustaining the motion initially. Summary judgment is appropriate where there are no genuine issues of material fact and as a matter of law, the moving party is entitled to judgment. Rule 74.04(c); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Famous Barr bears the burden of establishing a right to judgment as a matter of law on the record as submitted. Bell is entitled to the benefit of all reasonable inferences to be drawn from the record. A genuine dispute exists if Famous Barr requires an inference to establish its right to judgment as a matter of law. ITT Commercial Fin. Corp., 854 S.W.2d at 376.
Review of the record reveals the following facts in the light most favorable to Bell and reasonably supported inferences in Bell's favor: Bell purchased a ceiling fan on August 2, 1992 at the Famous Barr located in the Galleria Shopping Mall. Planning to place the fan in his bedroom, Bell tested the available models and selected a quiet fan. Bell charged the purchase price of $132.16 to his Famous Barr account. Famous Barr had the fan delivered. Bell had the fan installed within several weeks of delivery. Bell alleges that after assembly and installation the fan made an unacceptable level of noise at all speeds, interfering with his sleep. Bell attempted to adjust the brackets, but determined the noise emanated from the fan itself.
Famous Barr billed Bell for the cost of the fan on September 1, 1992, with payment due on September 25. On or about September 23, 1992, Bell reported the problem to Famous Barr's credit office. Bell told the Famous Barr representative that he received a defective fan and did not intend to pay for it. The representative stated the problem would be noted and suggested that Bell contact the manager of the electric appliance department. Bell paid the undisputed amount shown on his September 1, 1992 Famous Barr statement, but withheld payment in the amount of $132.16. Bell attempted, but failed, to contact the manager of the electric appliance department.
Bell sent Famous Barr a letter, dated October 27, 1992. The letter stated the fan was defective because it made too much noise. Bell also wrote that he did not intend to pay for the fan, the cost of removing it, or the cost of reinstalling a new one. Additionally, Bell made a general reference to "Regulation Z" in his letter. Bell alleges he followed the directives on the back of his Famous Barr billing statement, which summarized a credit card user's billing rights. *fn1
Ms. Milton, who worked with "billing errors" for Famous Barr, sent Bell a reply letter within several days, acknowledging receipt and stating that a manager from the Famous Barr Galleria store would contact him in the near future. In November, 1992, Christopher Thau, Divisional Sales Manager at the Famous Barr Galleria store, contacted Bell and agreed to locate a replacement fan, which was of the same make and model as the defective fan. Thau also agreed to reimburse Bell for the installation cost. Thau and Bell never discussed the details regarding removal of the defective fan, the installation of the replacement fan, or the method for paying the cost of installation. Moreover, they never agreed that Bell should pay the purchase price for the defective fan.
Thau sent Bell to the Famous Barr located at the West County Shopping Mall to exchange the fan. The West County store did not have a replacement fan. Bell informed Thau of the situation. Thau stated there might be a delay in locating the fan.
In January, 1993, Thau contacted Bell to inform Bell that he was leaving his position and that Ms. Velk would be handling the ceiling fan situation. Bell waited for Velk to contact him. Bell did not recall hearing from Velk.
Beginning with the October, 1992 statement, Famous Barr claimed the cost of the fan as an amount due and added finance charges to Bell's statement. On Bell's November 1, 1992 statement, Famous Barr claimed Bell's account was past due. Bell contacted Famous Barr's credit department. A Famous Barr representative assured Bell that Famous Barr had simply made a mistake. In May, 1993, the billing statement showed a late fee and accruing finance charges as well as the price of the defective fan and the past due notice.
On May 4, 1993, Famous Barr informed Bell that it was sending his account to three credit reporting agencies and that this information may have an affect on his ability to obtain credit elsewhere. Again, Bell contacted the credit department and explained the dispute. A Famous Barr representative told Bell no further action would be taken to collect the disputed amount and the matter would not affect his credit rating.
Bell continued to receive statements containing late fees and finance charges, restrictions on his account preventing further purchases, threats to send his account to the collection department, and threats to report a derogatory rating of "R9" to credit reporting agencies. "R9" is the worst credit rating a person can receive. In the spring of 1993, Bell contacted the billing/collection office multiple times regarding the statements. On each occasion, a representative assured him that Famous Barr would correct the errors and he need not pay for the fan until resolution of the dispute.
In August, 1993, Famous Barr's automated system reported Bell 120 days delinquent to the credit reporting agencies. On or about August 18, 1993 the parties reached a provisional agreement. Famous Barr had been unsuccessful in locating a replacement fan. Famous Barr agreed to credit Bell's account with all finance and late fee charges and reinstate his credit line. Bell agreed to pay the original sale price if a Famous Barr representative would send a letter confirming the agreement that Famous Barr would allow the buyer of Bell's house an additional thirty days from the date of closing to exchange the fan. Despite the agreement, on September 1, 1993, Famous Barr assessed late fees and finance charges for nonpayment, closed Bell's account, and reported this information to the credit reporting agencies.
On September 13, 1993, Bell drafted a letter to Famous Barr setting out the agreement. Bell received a handwritten note from a Famous Barr representative, saying Famous Barr would "delete all derogatory information". On October 4, 1993, Bell re-dated the September 13, 1993 letter and mailed it with a check in the sum of $132.16 to cover the cost of the fan.
On October 16, 1993, Bell attempted to make a purchase at Famous Barr with his charge card. Famous Barr had closed his line of credit due to "poor prior payment history". On October 19, 1993, Bell wrote to Famous Barr, quoting the pertinent sections of Regulation Z and demanding the deletion of all adverse or derogatory credit history from his file. On November 19, 1993, Famous Barr wrote to Bell, informing him that it had requested that the credit reporting agencies delete any derogatory credit information from their files and reflect a credit ...