In Duncan v. Asset Recovery Specialists, Inc., Case No. 17-2598, 2018 WL 5623325 (7th Cir. Oct. 31, 2018), the Court of Appeals for the Seventh Circuit held that a repossession agency’s enforcement of an administrative fee did not trigger the FDPCA because it was not acting as the automobile finance company’s agent in doing so.
The record on summary judgment shows that Duncan was not able to back her allegation that Asset 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 demand for a $100 payment. On summary judgment she needed to go further and create a genuine issue of fact as to whether Asset Recovery demanded such a payment on behalf of Wells Fargo as a lender. See id. at 1086 (explaining that a repossessor does not act on behalf of a creditor or otherwise play the role of a debt collector by charging an administrative 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 discovery, the district court was right to enter summary judgment on their behalf.