Danelle Duncan v. Asset Recovery Specialists, In ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2598
DANELLE DUNCAN,
Plaintiff-Appellant,
v.
ASSET RECOVERY SPECIALISTS, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:16-cv-530 — William M. Conley, Judge.
____________________
ARGUED OCTOBER 22, 2018 — DECIDED OCTOBER 31, 2018
____________________
Before FLAUM, EASTERBROOK, and SCUDDER, Circuit
Judges.
SCUDDER, Circuit Judge. When Danelle Duncan fell behind
on her car payments, Asset Recovery Specialists repossessed
the vehicle on behalf of the lender, Wells Fargo Bank. Dun-
can had left some personal items in the car, however, and
when she sought to retrieve the property she alleged that
Asset Recovery demanded a $100 payment from her—a de-
mand she considered to constitute impermissible debt collec-
2 No. 17-2598
tion in violation of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692f. At summary judgment, the factual record
before the district court proved Duncan wrong: the $100
charge was not a demand for loan repayment by Duncan,
but rather an administrative property-retrieval fee that Wells
Fargo had agreed to pay. Having partaken in no impermis-
sible debt collection, Asset Recovery was entitled to sum-
mary judgment, a decision we now affirm.
The repossession occurred on January 27, 2016, and, up-
on learning of it, Duncan called Wells Fargo, who told her
she would need to satisfy the full amount of the defaulted
loan to receive the car back. Unable to do so, Duncan fo-
cused on retrieving the personal items she had left in her car,
and this resulted in discussions with a representative of As-
set Recovery. Duncan alleges that Asset Recovery’s president
told her multiple times that she would have to pay $100 to
receive her personal effects.
A meeting ensued three weeks later in Asset Recovery’s
office. Duncan contends that Asset Recovery put before her
an “assessment fee” form that stated she would have to pay
a $100 fee to retrieve her property. She considered the $100 a
demand for loan repayment. Asset Recovery denied making
this demand of Duncan, and instead insisted that the $100
was nothing more than an administrative fee that Wells
Fargo had agreed to pay. The discovery process turned up a
document corroborating Asset Recovery’s account. The
document, entitled “Receipt for Redeeming Personal
Property,” describes the $100 as a “Handling Fee” and
contains a handwritten notation that “All Fees billed to
WFDS,” plainly indicating that Wells Fargo Dealer Services
would pay the fee. Apparently disbelieving that she did not
No. 17-2598 3
owe $100, Duncan refused to sign the receipt form and thus
never recovered her property. She instead brought suit in the
district court alleging that Asset Recovery, its president, and
Wells Fargo violated the Fair Debt Collection Practices Act.
The district court granted summary judgment for the
defendants, concluding that Duncan could not overcome
two necessary hurdles for a successful claim under 15 U.S.C.
§ 1692f. First, Duncan failed to come forward with any
evidence (beyond her allegation to the contrary) refuting the
defendants’ showing, backed by the documentary record,
that neither Asset Recovery nor Wells Fargo attempted to
collect a $100 payment from her. Second, the court found
that, even on Duncan’s view that $100 was demanded of her,
she had not come forward with any evidence casting doubt
on the defendants’ showing that the $100 was but an
administrative handling fee owed to Asset Recovery, as
opposed to a demand for repayment on the auto loan owed
to Wells Fargo.
On appeal Duncan emphasizes the breadth of the
prohibition on unfair debt collection practices in 15 U.S.C.
§ 1692f, while also underscoring that the prohibitions extend
to repossession agents who undertake otherwise prohibited
collection efforts on behalf of creditors. See 15 U.S.C.
§ 1692f(6). In an effort to distinguish Nadalin v. Auto Recovery
Bureau, 169 F.3d 1084 (7th Cir. 1999), Duncan further
contends that the facts here allow a conclusion—or at least
raise enough of a question to get the case to trial—that Asset
Recovery was working on behalf of Wells Fargo to collect
$100 to apply toward her defaulted car loan.
We disagree. The record on summary judgment shows
that Duncan was not able to back her allegation that Asset
4 No. 17-2598
Recovery demanded the $100 fee of her with anything
beyond her own say so. Asset Recovery, on the other hand,
backed its contrary testimony with the Receipt for
Redeeming Personal Property, which expressly established
that Wells Fargo—not Duncan—would make the $100
payment. See Sims v. GC Servs. L.P., 445 F.3d 959, 963 (7th
Cir. 2006) (explaining that “[t]he burden of proof is on the
plaintiffs to present evidence of confusion (beyond their
own) in the form of an objective measure” and emphasizing
that “[m]ere speculation that the unsophisticated debtor
could be confused” is not enough to survive summary
judgment).
The same documentary evidence shows that the $100
handling fee was just that—an administrative expense that
Asset Recovery sought to recover for its role in processing
requests to redeem personal property from repossessed
vehicles. All of this stays within the bounds of Fair Debt
Collection Practices Act and our caselaw. See Nadalin,
169 F.3d at 1087 (“So far as the Fair Debt Collection Practices
Act is concerned, the only thing that’s important is that the
repossessor was not acting as the lender’s agent when in
effect it asserted a lien in order to enforce its $25 fee.”). There
is no way on this record to view the handling fee as some
sort of masked demand for a principal payment to Wells
Fargo.
Duncan fares no better if we accept her contention that
her initial phone calls with Asset Recovery entailed a de-
mand for a $100 payment. On summary judgment she need-
ed to go further and create a genuine issue of fact as to
whether Asset Recovery demanded such a payment on be-
half of Wells Fargo as a lender. See id. at 1086 (explaining
No. 17-2598 5
that a repossessor does not act on behalf of a creditor or oth-
erwise play the role of a debt collector by charging an ad-
ministrative fee for its own services); Smith ex rel. Smith v.
Severn, 129 F.3d 419, 425 (7th Cir. 1997) (underscoring that, to
survive summary judgment, the non-moving party must set
forth specific facts to establish a genuine triable issue). This
Duncan has not done, and, in the face of the evidence
brought forth by Asset Recovery and Wells Fargo in discov-
ery, the district court was right to enter summary judgment
on their behalf.
For these reasons, we AFFIRM.