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7th Cir. Holds Plaintiff’s Oral Testimony of Payment Demand in Violation of FDCPA Insufficient to Defeat Defendant’s Documentary Evidence

The U.S. Court of Appeals for the Seventh Circuit held that a plaintiff’s oral testimony that a $100 payment was demanded of her in violation of the federal Fair Debt Collection Practices Act (FDCPA) was insufficient to withstand summary judgment where the debt collector defendant produced documentary evidence to support its testimony that no such demand was made.

Accordingly, the Seventh Circuit affirmed the ruling of the trial court granting summary judgment in favor of the defendant.

A copy of the opinion in Duncan v. Asset Recovery Specialists, Inc. is available at:  Link to Opinion.

After the plaintiff fell behind on her car payments, the defendant collector repossessed the vehicle on behalf of the lender (“bank”).

Upon learning of the repossession, the plaintiff called the bank which told her she would need to satisfy the full amount of the defaulted loan to receive the car back.  Because she could not do so, the plaintiff instead sought only to retrieve personal items she had left in the car.

The plaintiff thereafter had discussions with a representative of the collector, who she alleges told her multiple times that she would have to pay $100 to recover her personal items.

The plaintiff further claimed that she had a meeting at the collector’s office at which time the collector allegedly gave her an “assessment fee” form that stated she would have to pay a $100 fee to retrieve her property.  The plaintiff considered the $100 fee a demand for loan repayment.

The collector denied making a demand for $100 from the plaintiff, and instead claimed that the $100 was an administrative fee that the bank agreed to pay.  The collector also had a document that supported its claim.

The document, entitled “Receipt for Redeeming Personal Property,” described the $100 as a “Handling Fee” and contained a handwritten notation that “All Fees billed to [bank].”

The plaintiff refused to sign the receipt form and therefore never recovered her property.  Instead, she filed a lawsuit alleging that the collector, its president, and the bank each violated the FDCPA.

The trial court granted summary judgment in favor of the defendants concluding that: (1) the plaintiff failed to produce any evidence refuting the defendants’ showing, backed by the documentary record, that neither the collector nor the bank attempted to collect a $100 payment from her, and (2) that even accepting the plaintiff’s allegation that $100 was demanded of her, she did not provide any evidence casting doubt on the defendants’ showing that the $100 was only an administrative handling fee owed to the collector, as opposed to a demand for repayment on the auto loan owed to the bank.

The plaintiff appealed.

On appeal, the plaintiff “emphasize[d] 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.”

The plaintiff further contended that the evidence at least raised a question of fact to defeat summary judgment on the issue of whether the collector was working on behalf of the bank to collect $100 to apply towards the defaulted car loan.

The Seventh Circuit disagreed, noting that “[t]he record on summary judgment shows that [the plaintiff] was not able to back her allegation that [the collector] demanded the $100 fee of her with anything beyond her own say so.”

Conversely, the collector “backed its contrary testimony with the Receipt for Redeeming Personal Property, which expressly established that [the bank] – not [the plaintiff] – would make the $100 payment.”

Moreover, that same document showed “that the $100 handling fee was just that – an administrative expense that [the collector] sought to recover for its role in processing requests to redeem personal property from repossessed vehicles.”

Accordingly, the Court held that “[t]here is no way on this record to view the handling fee as some sort of masked demand for a principal payment to [the bank].”

Moreover, the Seventh Circuit determined that even if it accepted the plaintiff’s contention that her initial phone calls with the collector entailed a demand for a $100 payment, “[o]n summary judgment she needed to go further and create a genuine issue of fact as to whether [the collector] demanded such a payment on behalf of [the bank] as a lender.”

Because the plaintiff did not do so, the Seventh Circuit affirmed the ruling of the trial court.

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