NEVAREZ v. AMARILLO NATIONAL BANK (2026)

ORDER

This case is about a repossession gone wrong. Pedro Nevarez financed the purchase of a blue Ford F-150 pickup truck. He defaulted. Amarillo National Bank hired Garry Johnston to repossess it. When Johnston's agent went to Nevarez's home, he mistakenly seized Nevarez's black Ford F-150 and damaged it in the process. Nevarez ran outside to confront the agent, and the agent released the black truck. In doing so, though, the agent haplessly caused the black truck to roll into the tow truck, damaging it further.

Out of this debacle, Nevarez sued Johnston under the Federal Debt Collection Practices Act (FDCPA) and the Bank under the Texas Uniform Commercial Code (UCC). After the Court dismissed Nevarez's original complaint for failure to state a claim (Dkt. No. 25), he filed a new complaint that rehashes old facts, relitigates the same issues, and raises new theories of liability.

The facts as alleged do not give rise to a breach of the peace under the Texas UCC and thus fail to state a claim under the FDCPA. The FDCPA also does not permit a claim for the peaceable and accidental seizure of non-collateral. Thus, the Court dismisses Nevarez's FDCPA claims and state breach-of-the-peace claims with prejudice and dismisses his novel Texas UCC claim for seizure of non-collateral without prejudice.

1. Background

A. Factual Background

Pedro Nevarez's original complaint was sparse. Nevarez alleged that he bought the blue truck from a Ford dealership for his personal use. Dkt. No. 1 ¶ 28. The blue truck was financed under a loan agreement that was subsequently assigned to the Bank. Id. ¶¶ 31–35, 37. The truck was designated collateral. Id. Sometime after the purchase, Nevarez defaulted. The Bank engaged Johnston's repossession business, Lake Creek Recovery, to seize the blue truck. Id. ¶ 37. On October 27, 2024, one of Johnston's agents approached Nevarez's home, where the events described above ensued. Id. ¶¶ 38–46.

Nevarez's new complaint is scarcely more detailed. Much of his additions are essentially reiterations (strewn over additional paragraphs) of the allegations raised in his first complaint. Compare, e.g., id. ¶ 41 (“[Johnston] damaged Plaintiff's [blue truck].”), with Dkt. No. 26 ¶¶ 41–44 (specifying how the blue truck was damaged). But whether derivative or new, the relevant additional allegations are as follows. First, Nevarez says that, as the agent was removing the vehicle (and before Nevarez stepped outside to object), the agent improperly lifted the black truck, damaging the vehicle and leaving tire marks on Nevarez's driveway. Dkt. No. 26 ¶¶ 42–44. Second, when Nevarez spotted the repossession attempt in progress, he “ran out, and protested [the agent's] activities.” Id. ¶ 45. Third, instead of letting go of the truck immediately, the agent maintained possession of the vehicle “for around three minutes while he attempted to verify the license plate” of the vehicle. Id. ¶ 48. Fourth, after realizing his error, Nevarez says the agent, “[i]nstead of carefully lowering” the black truck, “simply dropped it.” Id. ¶ 50. Last, rather than apologize, Nevarez says the agent “accused him of causing the collision by putting the [v]ehicle in neutral” and denied that he had caused the drivetrain and tire damage. Id. ¶¶ 53–54.

B. Procedural Background

Nevarez sued in this Court in February 2025, bringing two claims. First, he alleged Johnston (through his repossession agent) violated the FDCPA by breaching the peace in errantly seizing the black truck. Dkt. No. 25 at 2 (citing Dkt. No. 1 ¶¶ 51, 54). Second, he alleged the Bank violated the Texas UCC on account of Johnston's agent's breach. Id. (citing Dkt. No. 1 ¶¶ 59–61).

In an Order dated November 13, 2025, the Court explained that both claims hinged on whether the defendants breached the peace in attempting repossession. Id. at 4, 10. Ultimately, the Court concluded that, as pled, Nevarez did not sufficiently allege a breach of the peace. Id. at 9. The Court thus dismissed Nevarez's claims. Id. at 10. However, the Court noted Nevarez's original complaint was “paltry,” that the parties had been engaging in discovery without issue since May 2025, and that the Court had every reason to expect a new complaint could potentially reveal new facts that would dissuade the Court from its prior conclusion. Id. at 11. The Court also recognized that the discovery and dispositive-motions deadlines were mere weeks away. Id. It thus granted Nevarez leave to file “an amended complaint that states a claim for relief under the FDCPA and Texas UCC” on or before November 20, 2025—one week from the Court's Order. Id. at 11–12.

Nevarez filed his new complaint on November 19, 2025. Dkt. No. 26. The new complaint asserts two theories of liability against each defendant. As before, Nevarez accuses both defendants of violating the FDCPA and Texas UCC because Johnston's agent breached the peace. Id. ¶¶ 58–62 (Johnston), 66–70 (the Bank). In addition, he alleges that both defendants are liable regardless of whether they breached the peace for no more or less a reason than that Johnston's agent mistakenly seized the black truck instead of the blue truck. Id. ¶¶ 63–64 (Johnston), 71–73 (the Bank).

In early December 2025, the defendants filed separate motions to dismiss. Dkt. Nos. 27; 28. The dispositive-motions deadline passed on December 8, 2025 with neither defendant filing motions for summary judgment. Dkt. No. 18 at 1. The Court's order dismissing the original complaint did not modify the trial deadlines, and trial remains set for this Court's April docket. See id. at 1–2. Nevarez timely responded to the motions (Dkt. Nos. 29; 30) and the defendants timely replied (Dkt. Nos. 31; 32). The motions are now ripe for review.

2. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss for “failure to state a claim upon which relief can be granted.” A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion, the plaintiff “must plead facts sufficient to show that [his] claim has substantive plausibility.” Johnson v. City of Shelby, 574 U.S. 10, 12, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is substantively plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A complaint fails to meet this threshold where it makes “[t]hreadbare recitals of the elements of a cause of action,” “mere conclusory statements,” or where “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. Likewise, “facts that are merely consistent with a defendant's liability” “stop[ ] short of the line” of plausibility. Id. at 678, 129 S.Ct. 1937 (citation modified). The Court reviews “all well-pleaded facts as true and view[s] those facts in the light most favorable to the plaintiff.” Richardson v. Axion Logistics, LLC, 780 F.3d 304, 306 (5th Cir. 2015) (citation modified).

3. Analysis

Nevarez seeks to hold both defendants liable because of the repossession agent's alleged breach of the peace and because the temporarily seized pickup truck was not the designated collateral. Nevarez raises claims against Johnston under the FDCPA and the Bank under the Texas UCC. Both claims require analysis of Texas's definition of breach of the peace, as the FDCPA applies state law to determine whether the practice is prohibited. Fuller v. CIG Fin., LLC, 3:22-CV-1289, 2023 WL 146251, at *2 (N.D. Tex. Jan. 10, 2023); Sinegal v. Big Horn Auto Sales, Inc., Civ. A. No. H-21-3102, 2022 WL 799908, at *3 (S.D. Tex. Mar. 16, 2022); see Tex. Bus. & Com. Code § 9.609.

The Court previously analyzed the underlying facts and law in this case and ruled in favor of the defendants. See Dkt. No. 25. For completeness, the Court discusses the relevant law and facts (including the additional allegations of Nevarez's amended complaint) in full. First, the Court discusses breach-of-the-peace doctrine as explicated by Texas's Supreme Court and intermediate appellate courts. Second, the Court tackles Nevarez's extensive objections to the leading Texas case on breach-of-the-peace doctrine. Third, the Court applies the relevant principles to Nevarez's allegations and, even taking those allegations as true and in the light most favorable to Nevarez, concludes his allegations do not amount to a breach of the peace. Fourth, the Court considers Nevarez's novel claim that the FDCPA punishes the accidental seizure of non-collateral and concludes it does not. Last, the Court finds that dismissal with prejudice as to Nevarez's claims against Johnston and his Texas UCC breach-of-the-peace claim against the Bank is warranted, but finds that his Texas UCC errant-seizure claim should be dismissed without prejudice.

A. Breach of the Peace under Texas law

Texas defines breach of the peace with reference to the UCC. MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex. 1992); Chapa v. Traciers & Assocs., 267 S.W.3d 386, 391 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Under the UCC, breach of the peace means “conduct that incites or is likely to incite immediate public turbulence, or that leads to or is likely to lead to an immediate loss of public order and tranquility.” Chapa, 267 S.W.3d at 395 (quoting Johnson v. Grossinger Motorcorp, Inc., 324 Ill.App.3d 354, 257 Ill.Dec. 236, 753 N.E.2d 431, 440 (2001)).

“In resolving issues of state substantive law,” the Court must “look to the final decisions of the state supreme court, which are binding.” Schirle v. Sokudo USA, LLC, 484 F. App'x 893, 896 (5th Cir. 2012) (citing Packard v. OCA, Inc., 624 F.3d 726, 729 (5th Cir. 2010)). The Texas Supreme Court addressed breach-of-the-peace doctrine in MBank, 836 S.W.2d at 153. But while MBank offers some helpful explication of the breach-of-the-peace doctrine under Texas law, as discussed below, it does not address anything like the particulars of this case. Indeed, neither party offers anything within the bounds of Texas case law that fully resembles their dispute.

Given the state of Texas law, the Court must make an educated prediction as to how the Texas Supreme Court would rule on the legal matters in dispute in this case.¹ The parties rely extensively on several Texas Court of Appeals cases. In its prior Order, this Court relied extensively on the principles and reasoning from the Fourteenth Court of Appeals' decision in Chapa, 267 S.W.3d 386. For reasons explained below, the few cases that Nevarez cites in his favor are of little to no assistance in analyzing Texas's breach-of-the-peace doctrine. Chapa stands out as a thorough and careful decision on the nuances of a breach-of-peace claim, and so the Court turns to that decision as an exemplar of the outer bounds of Texas's breach-of-the-peace doctrine.

i. Chapa v. Traciers & Assocs.

In Chapa, the repossession agent spotted what he believed to be the collateral vehicle, a Ford SUV. 267 S.W.3d at 389. The agent thought he had the right vehicle, and indeed he had spotted a Ford SUV. Id. However, the vehicle was from the wrong year and had the wrong license plate. Id. The agent moved quickly, missed these critical discrepancies, and sped away. Id. Unbeknownst to him, the vehicle's owner—a mother with two young children—had just placed her children in the SUV to take them to school. Id. The agent was making his getaway when he saw the two terrified children in the SUV. Id. He then turned around and took the children home to their panicked mother. Id.

In determining whether a breach occurred, the Chapa Court relied on two animating principles. First, the Court recognized that a breach of peace does not begin at the moment of confrontation itself. The Court relied on a Missouri case that identified the breach of peace as “ensu[ing]” after the homeowner told the agent “to get off the property numerous times to no avail.” Id. at 394 (quoting Robinson v. Citicorp Nat'l Servs., Inc., 921 S.W.2d 52, 53 (Mo. Ct. App. 1996)) (emphasis omitted). Similarly, the Court relied on a Florida case where the agent was spotted by the car owner who mistook him for a thief, refused to stop after being confronted, and ran over a bystander during his getaway. Id. (citing Nixon v. Halpin, 620 So. 2d 796 (Fla. Dist. Ct. App. 1993)). The Florida Court indicated that the breach did not necessarily begin at confrontation, but with the “continuation [of] the attempt at repossession” after confrontation. Nixon, 620 So. 2d at 798. The Chapa Court concluded likewise. 267 S.W.3d at 394.

Second, and relatedly, the Chapa Court relied on the Florida case for the proposition that an agent who “[does] not continue to attempt repossession” is not liable for breach of the peace. Id. Such conduct might be confused for an affirmative defense, but it is not. The agent who is confronted and then ceases the repossession attempt does not restore the peace. Rather, he preserves it. Id. By contrast, the agent who continues his attempt despite confrontation ultimately breaks the peace. See Nixon, 620 So. 2d at 798.

The Chapa Court took these principles and applied them to the repossession agent-turned-accidental kidnapper. The Court emphasized that there was “no evidence that [the agent] proceeded with the attempted repossession over an objection communicated to him at, near, or incident to the seizure of the property.” 267 S.W.3d at 395. Instead, the agent “immediately ‘desisted’ repossession efforts,” “peaceably returned the vehicle and the children when he learned of their presence,” and “actively avoided confrontation,” thereby “reduc[ing] the likelihood of violence or other public disturbance.” Id. Though the confrontation was undoubtedly shocking, it was not a breach of the peace.

ii. Nevarez's arguments against Chapa's application are unavailing.

Nevarez's complaint relies on Chapa for its citation to the UCC's generic definition of a breach of the peace. See Dkt. No. 26 ¶ 60. Yet in his briefing, his opinion of that case sours. He offers a flurry of reasons why that decision either is a poor source of law or is simply inapplicable to his case. Before turning to the factual allegations raised in this case, the Court contends with each of his arguments and finds them lacking.

a. Chapa correctly sets the bounds of what constitutes a breach of the peace.

First, in the briefing preceding this Court's previous Order, Nevarez relied on two lines of cases that he claimed demonstrated that “damaging non-collateral property [is] a breach of the peace” in and of itself. Dkt. No. 23 at 12–13. He employs these cases once more against the new motions to dismiss. Dkt. Nos. 29 at 17; 30 at 18–19. As the Court previously explained, there is a “fine” but important distinction here: these citations belong to two lines of cases, neither of which are relevant to Texas's theory of breach. Dkt. No. 25 at 6.

One line of cases simply says that if the secured party sought to engage in repossession, he “r[an] the risk that the repossession” might, “in fact, breach the peace,” and that he might also be “held liable in tort.” MBank, 836 S.W.2d at 152; Griffith v. Valley of Sun Recovery & Adjustment Bureau, Inc., 126 Ariz. 227, 613 P.2d 1283, 1286 (Ariz. Ct. App. 1980). Naturally, that includes damage to property in the process of repossession. Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 168 S.E.2d 827, 831 (1969). But that rule is not in dispute here. These cases speak to the potential for tort liability regardless of whether the repossessor preserves the peace. See id. (“[W]hile the defendant ․ had the right to peacefully enter ․ [he] would be responsible for any tortious acts committed during the repossession.”). Nevarez's claim is for breach of peace, not for negligence or conversion or other common-law tortious conduct. Whether or not Johnston's agent engaged in other tortious conduct, those facts do not answer the question of whether the agent breached the peace.

The other line of cases urges that the commission of property damage itself necessarily constitutes a breach of peace. For instance, Minnesota courts have held “that a non-violent, forcible entry to retake possession of a tenant's premises constitutes a breach of the peace.” Bloomquist v. 1st Nat'l Bank of Elk River, 378 N.W.2d 81, 86 (Minn. App. 1985). Florida courts have held that tortious repossession “can” result in a breach of the peace but apparently assume so by default. See Quest v. Barnett Bank of Pensacola, 397 So. 2d 1020, 1024 (Fla. App. 1st Dist. 1981). However, as Bloomquist acknowledges, these definitions of breach of the peace are unattached from “violence [and the] threat of violence,” and rather are in form with local “commercial practices.” 378 N.W.2d at 86; Seibel v. Soc'y Lease, Inc., 969 F. Supp. 713, 718 (M.D. Fla. 1997) (finding breach of peace from mere trespass). Defining lock-outs as breaches of the peace serves to prevent acts “detrimental to the ordinary conduct of human affairs.” Davenport v. Chrysler Credit Corp., 818 S.W.2d 23, 29 (Tenn. Ct. App. 1991).

By comparison, Texas's breach-of-the-peace rule exists in light of “longstanding policy concerns regarding the exercise of force or violence.” MBank, 836 S.W.2d at 152. There is good reason to adhere to this view, rather than adopt Nevarez's fixation on the mere tort. Quintessential breaches of the peace include “driving while intoxicated, or publicly assaulting someone,” “an immediate threat of violent physical injury,” “[f]leeing the scene of an accident,” or “attempting concealment on private property during a manhunt.” Chapa, 267 S.W.3d at 392–93 (footnotes omitted). These are all acts that occasion danger of harm to others or occasion alarm over the fear of that danger.

To avoid this conclusion, Nevarez makes an unusual argument that merits only short mention. He says that “property is only damaged by the use of force on it” and that therefore all “property damage necessarily involves the use of force or violence.” Dkt. No. 29 at 17. That contention, aside from proving far too much,² tries to shoehorn the property-damage-only theory into Texas's public-safety regime. But Chapa makes clear that acts that are not “intimidating, indecorous, or calculated to have a disturbing effect” fail to give rise to “a ‘breach of the peace’ as that phrase ordinarily is used in ․ common law.” 267 S.W.3d at 393–94.

To be sure, some tortious conduct meets the mark. Nevarez relies on Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 574 (Tex. App.—Houston [14th Dist.] 1981, no writ). Some have understood Meyers to stand for the principle that “unreasonable property damage constitutes a breach of the peace.” Chapa, 267 S.W.3d at 392 n.6. But in that case, the court relied on the parties' stipulation that a night-time breaking-and-entering that wrought severe property damage was a breach. That assumption is reasonable not because of the property damage per se but because a 2:00 A.M. breaking-and-entering raises a much higher risk of violence than, say, a daytime trespass on disputed property. Compare Nieves v. Able Auto Adjusters, No. 18-CV-8262, 2019 WL 13043034, at *1 (C.D. Cal. Jan. 2, 2019) (citing Salisbury Livestock Co. v. Colo. Cent. Credit Union, 793 P.2d 470 (Wyo. 1990) (holding that agents' entry onto rural property at night constituted breach)), with Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214, 216 (1943) (holding that a disagreement over lawfulness of road construction did not give rise to a criminal breach of the peace).

But other torts are picayune. They may result in “nominal damages, which are given not as an equivalent for a wrong, but in recognition of a technical injury, and by way of declaring the right.” Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743, 745 (1954) (citing 25 C.J.S., Damages § 8); see also Dunn v. State, 979 S.W.2d 403, 408–09 (Tex. App.—Amarillo 1998, pet. ref'd) (noting that trespasses are not intrinsically breaches of the peace). A debt is owed, yet no harm is done. Other tortious conduct might be extremely offensive and only be perceived well after the fact, failing to bring about a breach of the peace. Cf. Snyder v. Phelps, 562 U.S. 443, 460–61, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (declining tort liability in case where peaceful yet personally insulting speech was overheard by plaintiff after the fact).

Thus, Texas's breach-of-the-peace regime does not permit a plaintiff to prevail merely because he suffered a tort. Tortious conduct may sometimes—though not always—give rise to a confrontation. If there is no confrontation, there is no breach, even if the agent commits a tort in the process. See Ford Motor Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584, 586 (1979) (addressing conversion absent breach of peace); Chapa, 267 S.W.3d at 394. If the tort gives rise to a confrontation, “the court must decide whether the agent avoided additional confrontation.” Davis v. Toyota Motor Credit, Civ. A. No. H-12-287, 2013 WL 4786328, at *8 (S.D. Tex. Sept. 6, 2013); Chapa, 267 S.W.3d at 395. Whether a subsequent tort creates an additional confrontation necessarily requires asking whether the conduct is “intimidating, indecorous, or calculated.” Chapa, 267 S.W.3d at 393–94. An alleged mistake, though blithering in nature, does not resemble the requirement of a confrontation. Cf. id.

b. Chapa also correctly considers the role of confrontation in a breach-of-the-peace claim.

Second, Nevarez challenges Chapa as “simply incorrect” for imputing the requirement of a confrontation for there to be a breach of the peace. Dkt. No. 29 at 17. This argument tracks closely with his assertion that property damage alone may suffice to raise a breach of the peace. Putting aside the fact that Nevarez's original and amended complaints rest on a theory of confrontation (see Dkt. Nos. 1 ¶¶ 42, 51; 26 ¶¶ 45, 47, 51–53), this theory is difficult to square with Chapa's extensive analysis to the contrary. See 267 S.W.3d at 394 & n.15 (distinguishing Texas's UCC from jurisdictions that involve an unseen repossession agent and no confrontation). Setting Chapa aside, Nevarez relies on Meyers, 619 S.W.2d 572. In his read, Meyers states that a nighttime breaking-and-entering that damaged property during the collateral's seizure was “sufficient to be [a] breach of the peace despite [the] absence of confrontation.” Dkt. No. 29 at 17. But once more, Meyers merely repeated the parties' agreed theory of the case and did not analyze the question. See 619 S.W.2d at 574.

Only two courts have analyzed Meyers, and neither case is helpful here, as cases applying Meyers have involved, in some shape or form, intentional tortious conduct in the midst of ongoing objections to the agents' actions. See Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 783 (Tex. App.—Dallas 1994, no writ) (noting that property damage happened during foreclosure proceedings); Berrocal v. Nissan Motors, No. 5:25-CV-453, ––– F.Supp.3d ––––, ––––, 2025 WL 2988465, at *7 (W.D. Tex. Oct. 23, 2025); id. at ––––, 2025 WL 2988465, at *1 (noting that property damage happened while plaintiff was incarcerated and actively “attempt[ing] to cure any alleged default”). Neither case suggests a breach of the peace can occur sans-confrontation. More importantly, neither Meyers nor its progeny suggest that, where a confrontation occurs, a breach of the peace is inevitable even where one of the parties to the belligerency actively works to preserve the peace. As explained below, that is precisely what happened here.

Finally, at least one other Texas court has adopted the expectation of a confrontation. In Coggin v. State, a disorderly-conduct case, a Texas appellate court observed that, “to incite an immediate breach of the peace contemplates a face-to-face encounter ․ or at least something more than [an] impersonal, brief encounter.” 123 S.W.3d 82, 92 (Tex. App.—Austin 2003, pet. ref'd). While disorderly conduct is not the only way to breach the peace, see Chapa, 267 S.W.3d at 391, that proposition is well-taken given MBank's focus on “longstanding policy concerns regarding the exercise of force or violence” and “[t]he preservation of peace.” 836 S.W.2d at 152 (citing Godwin v. Stanley, 331 S.W.2d 341, 342–43 (Tex. Civ. App.—Amarillo 1959, writ ref'd n.r.e.); Willis v. Whittle, 82 S.C. 500, 64 S.E. 410 (1909)); Chapa, 267 S.W.3d at 391. The Court is thus satisfied that Meyers and its progeny do not favor Nevarez's claims for relief.

c. Subsequent case law has not diminished Chapa's persuasive value.

Third, Nevarez urges that “reliance upon Chapa is misplaced because subsequent developments in the law have diminished” its persuasive value. Dkt. Nos. 29 at 14; 30 at 15. He does so in reliance on a host of cases involving the seizure of adults (the objecting debtors) who were inside their collateral-vehicles at the time of seizure. See, e.g., Hansen v. Santander Bank, N.A., 689 F. Supp. 3d 679, 689 (D. Minn. 2023) (collecting cases); Dkt. No. 29 at 14 (same). The Court does not doubt such a scenario could trigger a breach of the peace, and the Court acknowledges the fact patterns of these cases. See Sinegal, 2022 WL 799908, at *3. But, for reasons that are self-evident, kidnapping an irate and objecting debtor who is inside his car is entirely different from causing a confrontation and then ceasing it to preserve the peace.

In addition, Nevarez cites City of Fort Worth v. Deal, 552 S.W.3d 366 (Tex. App.—Fort Worth 2018, pet. denied). But that case addressed the facts necessary to establish a claim for battery under Texas law involving a police action that struck a moving, occupied vehicle. Id. at 374. There is no reason to think Johnston's agent battered Nevarez by touching his black truck when Nevarez was inside his home and not attempting to enter it. See id. at 372 (explaining that contact with a person's property is battery if it is “an object closely identified with the body,” such as clothing) (quotation omitted). Deal is thus readily distinguishable from Chapa and is irrelevant to this case.

Moreover, because Nevarez's critique of Chapa centers on its fact pattern (see Dkt. No. 29 at 13), the Court makes one point clear: it does not adopt Chapa as a one-to-one analogue for this case. The Court looks to Chapa precisely because of the principles articulated therein and because those principles are dispositive to Nevarez's case. Nevarez fails to explain why or how these new cases limit Chapa's persuasive value, and the Court perceives none.

d. The Texas UCC's aim of uniformity does not mandate adherence to the theories of other state courts.

Fourth, Nevarez challenges Chapa's application to the exclusion of the property-damage-only jurisdictions discussed above. He cites a statute within the Texas UCC that provides the Texas UCC “must be liberally construed and applied to promote its underlying purposes and policies,” which include the aim of “uniform[ity]” with the commercial codes of other states in the Union. Tex. Bus. & Com. Code § 1.103(a). From this provision, he concludes, the Court should adopt the reasoning of the property-damage-only jurisdictions, notwithstanding MBank and Chapa's emphasis on public safety. Compare, e.g., Chapa, 267 S.W.3d at 392–93 (listing safety-endangering acts), with Bloomquist, 378 N.W.2d at 86 (noting that Minnesota's UCC breach doctrine is unattached from “violence [and the] threat of violence”). To Nevarez's credit, Texas courts consistently look to the principles, reasoning, and facts of the decisions of other state courts. See, e.g., Duong v. Bank One, N.A., 169 S.W.3d 246, 253 (Tex. App.—Ft. Worth 2005, pet. denied) (analyzing Alabama law); MortgageAmerica Corp. v. Am. Nat'l Bank of Austin, 651 S.W.2d 851, 856 (Tex. App.—Austin 1983, writ ref'd n.r.e.).

But courts applying the UCC cannot become so accepting of the decisions of other states that the Texas UCC loses its own meaning. That principle is equally established among courts applying the Texas UCC. See Fin. Universal Corp. v. Mercantile Nat'l Bank at Dallas, 683 S.W.2d 815, 817 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) (contrasting majority and minority approaches on a UCC rule and adopting the majority on the merits); Rogers v. Ricane Enters., Inc., 930 S.W.2d 157, 171 (Tex. App.—Amarillo 1996, writ denied) (permitting the application of foreign case law where “pertinent”). And uniformity, though an admirable goal, has never been accomplished among the States despite numerous Restatements and model codes on the corpora juris in commercial law, conflicts of laws, contracts, criminal law, family law, and torts, among others.

Examples of disagreement among the states abound. “Breach of the peace is an imprecise term, and some courts ․ have found relatively minor instances to qualify,” while others “give[ ] the repossessor much freer rein.” Nieves, 2019 WL 13043034, at *1. Many courts say that a speaking objection is sufficient to require a repossession effort to cease. Id. (citing Salisbury Livestock Co., 793 P.2d 470). Another court held that a “screaming confrontation” without actual objection to the seizure is not enough. Id. (citing Williams v. Ford Motor Credit Co., 674 F.2d 717 (8th Cir. 1982)). Some courts say that a car chase constitutes a breach of the peace. Ivy v. Gen. Motors Acceptance Corp., 612 So. 2d 1108, 1112 (Miss. 1992). One court suggested otherwise. Nieves, 2019 WL 13043034, at *1 (citing Jordan v. Citizens & So. Nat'l Bank of S.C., 278 S.C. 449, 298 S.E.2d 213 (1982)).

When two theories of law, both aiming to claim the mantle of the uniform rule, are in conflict with one another, this Court must apply the substantive law of the State whose law applies. Here, that is the law of Texas. “When making an Erie guess,” a court does not “adopt innovative theories of state law but aim[s] simply to apply that law as it currently exists.” Weatherly, 945 F.3d at 920 (quotation omitted). Courts may not “do merely what [they] think best,” but rather “that which [they] think the state supreme court would deem best.” Id. at 920–21 (quotation omitted). For the reasons explained above, supra Analysis § 3(A)(ii)(a), the notion that property damage alone and without confrontation constitutes a breach of the peace arises from a different theory of breach than the one applied by the State of Texas. See Bloomquist, 378 N.W.2d at 86. The Court has no reason to expect the Texas Supreme Court to adopt a theory of breach broader than the one adopted in MBank. See 836 S.W.2d at 152.

* * *

Having considered Nevarez's objections, the Court is satisfied that the theory of breach outlined in Chapa is the same as the theory outlined in MBank and is the correct standard by which to analyze the facts of this case. The Court thus turns to Nevarez's additional facts.

B. Nevarez fails to state claims for breach of the peace.

Nevarez's complaint is simple. He says the repossession agent damaged his vehicle, was confronted, let the vehicle go, did so in a way that was negligent, enraged Nevarez further, and blamed Nevarez for the damage. These facts, considered step by step and taken altogether with all reasonable inferences drawn in Nevarez's favor, do not suffice to allege a breach of the peace.

i. Damage to the Vehicle Pre-Confrontation

The first relevant allegation in Nevarez's complaint is that, as the agent was removing the vehicle (and before Nevarez stepped out his door to object), he improperly lifted the black truck, damaged its drivetrain and tires, and left tire marks “along the length of [Nevarez's] driveway.” Dkt. No. 26 ¶¶ 42–44. Because Nevarez ran out to object shortly after, the Court can reasonably infer that Nevarez saw these events as they happened. But these new facts have no import. A breach of the peace requires the actor to (1) be confronted, and (2) continue the attempt at repossession after confrontation. Chapa, 267 S.W.3d at 389; Nixon, 620 So. 2d at 798 (breach began with the “continuation [of] the attempt at repossession” after confrontation). By Nevarez's own admission, he did not confront the agent until after this incident occurred. Dkt. No. 26 ¶ 45. So, these facts do not point to a breach of the peace.

ii. The Length of the Confrontation

Second, when Nevarez spotted the repossession attempt in progress, he “ran out, and protested [the agent's] activities.” Id. ¶ 45. The agent “stopped with its tow vehicle and the [black truck] lifted several feet in the air, and parked in the roadway and across the sidewalk in front of [Nevarez's] home.” Id. ¶ 46. The agent then took a few minutes' time to verify that he had the correct vehicle. Id. ¶ 48. So, Nevarez says, the agent “did not immediately cease the repossession and depart the scene upon being confronted.” Id. ¶ 47.

From these facts, Nevarez states what was already obvious: a confrontation ensued. Many courts, including courts in Texas, accept that a verbal objection to the repossession attempt is sufficient to create a confrontation. See Price Auto Sales, Inc. v. Sanders, No. 05-11-746-CV, 2012 WL 3734388, at *2–3 (Tex. App.—Dallas Aug. 29, 2012, no pet.); Chapa, 267 S.W.3d at 395 (citing Census Fed. Credit Union v. Wann, 403 N.E.2d 348, 351–52 (Ind. Ct. App. 1980)); id. at 394 (citing Nixon, 620 So. 2d at 797); Godwin, 331 S.W.2d at 342.³ The Court reached the same conclusion on the sparser facts of Nevarez's original complaint. Dkt. No. 25 at 9.

Nevarez emphasizes that the key difference here is, rather than instantaneously letting go of the black truck, the agent held onto the truck for all of three minutes to investigate whether he had the right vehicle. See Dkt. No. 29 at 11–12. Nevarez does not explain what would count as immediate—ten, thirty, sixty seconds may or may not be enough. At any rate, there is no proposition in Texas law for inserting a counting game into breach-of-the-peace doctrine.⁴ The real question is whether Texas law mandates the agent's total capitulation or permits a conditional surrender.

Looking to persuasive sources, there is every reason to believe that the UCC permits détente. Recall the purpose of the breach-of-the-peace doctrine: “The preservation of peace ․ is of more importance to society than the right of the owner of a chattel to get possession of it.” MBank, 836 S.W.2d at 152–53 (quoting Willis, 64 S.E. at 410). And so, courts must take into account “concerns regarding the exercise of force or violence.” Id. at 152; Godwin, 331 S.W.2d at 342. When a party agitates, say, by continuing the repossession attempt, a breach follows. See Price Auto Sales, Inc., 2012 WL 3734388, at *2–3. But when a party actively works to preserve the peace despite an initial misstep, it makes little sense to punish him for his effort. Such peaceable behavior is the opposite of that which “incites or is likely to incite immediate public turbulence.” Chapa, 267 S.W.3d at 395 (quoting Grossinger Motorcorp, Inc., 257 Ill.Dec. 236, 753 N.E.2d at 440).

Indeed, this view is supported by courts who have considered the bounds of breach-of-the-peace doctrine. In Ivy, the Mississippi Supreme Court concluded that détente and even peaceable persuasion to secure the collateral are “[a]t the other extreme from physical violence” and do not breach the peace. 612 So. 2d at 1112. Likewise, courts applying Chapa ask whether “additional confrontation” arose after the initial confrontation—an attempt to negotiate would typically accomplish just that. Davis, 2013 WL 4786328, at *8. In applying this rule, courts also enforce the purpose of the self-help provision, which is to provide a regulated pathway “in most cases” to making the secured party whole without the need for judicial intervention. See Official Comment to UCC § 9-503.

Applying those principles to Nevarez's claim, it is apparent that the three-minute investigation performed by Johnston's agent was not an additional confrontation. The agent did not immediately release the vehicle, but he did cease the repossession attempt by parking. Whether he parked in Nevarez's driveway, on his side of the street, or across the street (see Dkt. No. 26 ¶ 46) is immaterial. What matters is that he stopped. See Chapa, 267 S.W.3d at 393 (noting that the repossession attempt ended when the agent began to return the vehicle and children, rather than when he arrived). The agent avoided additional confrontation and took steps to lower the temperature by investigating whether the vehicle was in fact the one subject to repossession. His short delay in doing so does not amount to a breach of the peace.

iii. The Agent's Alleged Negligence

Third, after realizing his error, Nevarez says, “[i]nstead of carefully lowering” the black truck, the agent “simply dropped it.” Id. ¶ 50. This caused the black truck to crash into the agent's tow truck. Id. ¶ 51. This mishap happened “in front of [Nevarez]” and made him “furious.” Id. ¶ 52. And after this transpired, Nevarez says the agent refused to apologize. Instead, the agent “accused [Nevarez] of causing the collision by putting the [v]ehicle in neutral” and denied that he had caused any damage to the truck. Id. ¶¶ 53–54.

This set of allegations runs into an obvious problem. By Nevarez's own admission, the agent “eventually realized [he] had taken the wrong vehicle and [had] decided to release [it] back to [Nevarez].” Id. ¶ 49. Compare these allegations to the plain text of the Texas UCC: After default, the secured party “may take possession of the collateral ․ without judicial process, if it proceeds without breach of the peace.” Tex. Bus. & Com. Code § 9.609(a)(1), (b)(1); see also 15 U.S.C. § 1692f(6)(A) (FDCPA) (prohibiting breaching the peace as a “means to collect or attempt to collect any debt”). It is questionable, at best, that the Texas UCC's terms punish a secured party who engages in wrongdoing while actively ceasing the confrontation and repossession attempt. The terms of those statutes are even less accommodating for the agent's blame-and-deny statements that were made fully after the return of the black truck.⁵

Even assuming the Texas UCC covers post-capitulation conduct as actionable under the breach-of-the-peace provision, the Court is not be persuaded that mere negligence and the denial of negligence are sufficient to state a claim. And, indeed, Nevarez's complaint only amounts to an allegation of negligence on the agent's part. Nevarez's original complaint only said that the agent “dropped” the black truck, without anything more. Dkt. No. 1 ¶ 45. In reliance on Nevarez's construction, the Court's previous Order described the agent's actions as one of alleged negligence. Dkt. No. 25 at 9. Now, in his new complaint, Nevarez leans into the negligence assertion by stating that “[i]nstead of carefully lowing the [black truck], [the agent] simply dropped it.” Dkt. No. 26 ¶ 50. It is not reasonable to infer the agent's conduct as alleged as anything more.⁶

Consider Chapa: there, over the course of twenty minutes, a mother grieved in horror at the thought of her children's kidnapping. See 267 S.W.3d at 389–90. Even though the agent swiftly changed course and began driving back to the children's home, they and their mother suffered medical and psychological harm. Id. Yet the Chapa court recognized, notwithstanding the harm that accrued while ceasing the confrontation, that the agent did not breach the peace. See id. Similarly, in Herring, the confrontation only began the day after the successful repossession attempt, when the plaintiff discovered the repossession agent seized a number of his belongings that were in the collateral truck. 589 S.W.2d at 586. This, too, was not a breach of the peace. Id.

One last argument to address: Nevarez argues that the Court should find a breach of the peace occurred because, in the facts as described, he would have been justified in using physical force to stop the errant repossession under the Texas Penal Code. His cited provision provides, “A person unlawfully dispossessed of ․ tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to ․ recover the property,” under certain conditions. Tex. Penal Code § 9.41(b). But Nevarez's reliance puts the elements in the wrong order. The right to defense of property does not instigate a breach of the peace, but rather may be rendered effective when a breach of the peace has come about. See Godwin, 331 S.W.2d at 342–43 (establishing that a breach of the peace occurred before invoking the right). Because no breach is sufficiently alleged here, the hypothetical presence of that right does not move on its own force to create the potential for violence or use of force.

Here, where an agent was actively working to preserve the peace, it is contrary to the UCC's language and policy to punish the agent's employers for conceded negligence that arose in the process. As the Court previously explained, the agent's conduct “would enrage anyone, and it may give rise to tort liability” in the courts of Texas. Dkt. No. 25 at 9. “But that is not the standard for breach of the peace”: “where the agent recognized his mistake and allegedly committed a negligent tort in the process of fixing that mistake, it cannot be said that a breach of peace occurred.” Id.⁷

* * *

In sum, because none of Nevarez's new factual allegations—alone or taken together—assist his original claim for a breach of the peace (whether individually or taken together), the Court finds that Nevarez has once again failed to allege a breach of the peace against Johnston under the FDCPA or against the Bank under the Texas UCC.

C. The Court dismisses Nevarez's claims for seizure of non-collateral.

Recognizing the frailty of his breach-of-the-peace claim, Nevarez raises an alternative theory: that the defendants are liable under the FDCPA and Texas UCC because— “regardless of whether the peace was breached”—the errantly seized black truck was not subject to repossession. Dkt. No. 30 at 6–7; see Dkt. No. 29 at 2 (same). His FDCPA theory is untenable. And with his last federal claim eliminated, the Court declines to consider Nevarez's novel Texas UCC claim.

i. Nevarez cannot state a claim for relief for the seizure of non-collateral property under the FDCPA.

Nevarez first urges that the FDCPA subjects Johnston to liability because Johnston never had a right to seize the black truck in the first place. Dkt. No. 30 at 6. This theory is a novel one that has only been addressed directly, so far as this Court can tell, on one other occasion. See Larranaga v. Mile High Collection & Recovery Bureau, Inc., 807 F. Supp. 111, 112–13 (D.N.M. 1992). Nevarez's arguments rest solely upon the text of the FDCPA (Dkt. No. 30 at 6–7), while Johnston's reply is nonresponsive (Dkt. No. 31 at 3–4).⁸

The Court “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). The FDCPA begins with an opening clause: “A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. From there, the FDCPA provides a non-exhaustive list of acts that are prohibited. Relevant here, subsection (6)(A) defines an unfair or unconscionable act as follows: “Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest[.]”

Before turning to Nevarez's argument, the particulars of his complaint bear repeating. Nevarez financed the purchase of his blue truck with the blue truck designated as collateral. Dkt. No. 26 ¶¶ 31–35. The Bank hired Johnston to repossess the blue truck. Id. ¶¶ 37–38. By Nevarez's own admission, the agent “mist[ook]” Nevarez's black truck for the designated collateral and then attempted to drive away with it. Id. ¶ 40. When Nevarez confronted the agent, the agent stopped, “attempted to verify the license plate of the [black truck],” “realized [he] had taken the wrong vehicle[,] and decided to release” the black truck, damaging it in the process. Id. ¶¶ 45–51.

Nevarez's theory of liability runs as follows. The Bank's security interest only extended to the blue truck, not the black one. Dkt. Nos. 26 ¶ 63; 30 at 6. “Accordingly, [Johnston] had no right to possession of the [black truck] whatsoever. Nonetheless, [he] took possession (or attempted to take possession) ․ in an effort to enforce [the Bank's] security interest” in the blue truck. Dkt. No. 30 at 6. Therefore, Johnston violated the FDCPA by taking nonjudicial action by seizing claimed collateral to effect the dispossession of the subject property. See id. at 6–7.⁹

At first, Nevarez's argument might seem tempting: after all, Johnston seized non-collateral property and did so in an attempt to repossess Nevarez's collateral property. But this theory reads over the central clause of subsection (6)(A). Read again: to be liable, there must be “no present right to possession of the property claimed as collateral through an enforceable security interest.” § 1692f(6)(A) (emphasis added). If Section 1692f applied to any property of any kind, Congress could have simply protected against seizure of any property in which the secured party has “no right.” Instead, Congress only defined those cases where the party has “no present right.” That reading should raise alarm. True, anyone might secure a right to some piece of property in the future through purchase, inheritance, or luck of the dice. But the FDCPA governs debt collection, and so the phrase “present right” naturally refers to the ability to seize collateral after the debtor defaults. See Obduskey v. McCarthy & Holthus LLP, 586 U.S. 466, 478, 139 S.Ct. 1029, 203 L.Ed.2d 390 (2019); see id. at 483, 139 S.Ct. 1029 (Sotomayor, J., concurring) (describing the FDCPA as governing “nonjudicial foreclosures and regulat[ing] security-interest enforcers”). If that was not already clear, the FDCPA's definition section defines debt collectors—those subject to Section 1692f(6)(A)—as men and women who are “in any business” where the “principal purpose ․ is the enforcement of security interests.” 15 U.S.C. § 1692a(6).

Because the present-right clause points to a security interest, that places the latter clause of Section 1692f—applying to “property claimed as collateral through an enforceable security interest”—in its proper context. The most natural read of the statute is that it applies to the collateral itself and prohibits seizure absent “a present and valid right to repossess.” Sinegal, 2022 WL 799908, at *2; see Clark v. Auto Recovery Bureau Conn., Inc., 889 F. Supp. 543, 546–47 (D. Conn. 1994) (same).¹⁰ To read “claimed as collateral” as meaning anything someone says is collateral would nullify the “through an enforceable security interest” portion of the clause. Someone could claim a non-collateral item is collateral, but then the item would not be subject to any enforceable interest.

That leads to a negative inference. If “claimed as collateral” means the collateral itself, then non-collateral is not subject to terms of the statute. Because all sides agree Nevarez's black truck was never collateral subject to an enforceable security interest, he cannot seek relief under the FDCPA, at least unless he can establish a breach of the peace. This conclusion is supported by the FDCPA's definition section. In defining “debt collectors,” the statute expressly states that “any person collecting or attempting to collect any debt owed or due ․ which was not in default at the time it was obtained” is not a debt collector and thus cannot be subject to Section 1692f(6)(A). 15 U.S.C. § 1692a(6)(F). While this case addresses a different problem—the seizure of non-collateral by mistake to collect a defaulted debt—the FDCPA does not govern the seizure of collateral not owed, and it would be a strange conclusion indeed to permit the seizure of an item that was not even collateral.

That conclusion is also bolstered by the only court to have directly addressed this novel theory. In Larranaga, a repossession agent unintentionally seized the debtor's personal property that was stowed away in the collateral sedan. 807 F. Supp. at 112. That court, on review of the FDCPA's text, concluded that the statue “does not prohibit the incidental possession of property not claimed as collateral,” observed that the secured party “claimed only [the sedan] as collateral,” and thus it could not be held liable under the FDCPA for the seizure of the personal property. Id. at 113 (internal quotation marks omitted).

Courts that have discussed Larranaga, while not reaching this peculiar question, have suggested its reading was correct. In Gallagher v. Gurstel, Staloch, & Chargo, P.A., the District of Minnesota addressed a neighboring provision of the FDCPA. 645 F. Supp. 2d 795 (D. Minn. 2009). Section 1692f(6)(C) prohibits dispossession of property if it “is exempt by law from such dispossession or disablement.” Citing Larranaga, the court observed that the seizure of property “to which [the secured party] was never entitled” could not have alleged the seizure of exempted property, because an exemption “presupposes ․ a right to dispossess or disable the property.” 645 F. Supp. 2d at 801. A similar conclusion follows here: the claimed-collateral rule presupposes some assertion of a right to possess the collateral supported by an agreement; an accidental taking of non-collateral property is not covered.¹¹

Further, in Nadalin, Judge Posner observed that the FDCPA does not cover the seizure of property in which the secured party “had no security interest” and was not taken “as collateral ․ but instead as an unintended incident to the repossession of that collateral.” 169 F.3d at 1085. Nadalin dealt with personal possessions left in the collateral vehicle. But the only distinction in this case is a matter of scale: rather than unintentionally taking a wallet left in the cab of a pickup, Johnston's agent made off with the wrong truck. The end result is the same: the agent's conduct after the accidental seizure is “practical rather than legal”; or, rather, a duty under common law or state law rather than one arising under the FDCPA. Id.

Accordingly, Section 1692f(6)(A) does not extend to the errant seizure of non-collateral property where no breach of the peace occurred in the property's seizure. For the reasons discussed above, it is unclear that Nevarez could recover under subsection (6)(A) even if the seizure of non-collateral arose through a breach of the peace. But because courts have recognized that a breach of the peace writ large is sufficient to violate the FDCPA, it is enough to make this conclusion only: that if Nevarez can sue under subsection (6)(A) at all, it must be through a breach of the peace under the clause's general provision. Since he fails to allege a breach of the peace, his claim against Johnston must be dismissed.

ii. The Court declines to consider Nevarez's state-law claim for errant seizure.

Finally, Nevarez raises an equally novel claim that the Bank is liable under the Texas UCC because it accidentally seized the non-collateral truck. See Dkt. No. 26 ¶¶ 71–72. But at this point, the Court has eliminated all of Nevarez's federal claims. The “general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Enochs v. Lampasas County, 641 F.3d 155, 161 (5th Cir. 2011) (quotation omitted). The Court considers four factors: “(1) whether the state claims raise novel or complex issues of state law; (2) whether the state claims substantially predominate over the federal claims; (3) whether the federal claims have been dismissed; and (4) whether there are exceptional circumstances or other compelling reasons for declining jurisdiction.” Johnson v. Smith, No. 24-30791, 2025 WL 3092772, at *7 (5th Cir. Nov. 5, 2025) (quoting Enochs, 641 F.3d at 159); 28 U.S.C. § 1367(c).

All of the statutory factors support dismissal. Since Nevarez fails to state a claim as to his FDCPA- and Texas UCC-based breach-of-the-peace claims, only his novel errant-seizure claim under Texas law would remain. That claim would “necessarily” predominate. Id. at *7. The novel claim that errant seizure of non-collateral is prohibited by the Texas UCC is one for which Nevarez offers no case law that is directly on point. See Dkt. No. 29 at 5–7 & n.2 (offering a list of cases analyzing the distinct question of whether a repossession must be successful to result in liability).

In turn, the Bank (as the only party subject to Nevarez's UCC errant-seizure theory) relies mostly on the plain text of the Texas statute and a Western District of Texas decision that concluded seizure of property where no secured interest existed did not violate the Texas UCC. See Dkt. Nos. 21 at 4–6 (reply to the original motion to dismiss) (citing Lewis v. TitleMax of Tex., Inc., 543 F. Supp. 3d 452, 458–59 (W.D. Tex. 2021)); 32 at 7 (incorporating original reply into the new motion to dismiss).¹² The Bank may very well be right, but the issue is nonetheless challenging. The Western District's decision relies on the Texas UCC's narrowed definition of collateral, but, as Nevarez sees things, the breach-of-the-peace provision addresses attempts to secure the collateral. See Dkt. No. 29 at 6. Given the UCC's “liberal[ ]” construction and developing nature, it is not entirely clear which party has the strongest read of the statute. See Tex. Bus. & Com. Code § 1.103(a). Therefore, dismissing without prejudice and permitting Nevarez to pursue this claim in state court would better “promote justice between the parties[ ] by procuring for them a surer-footed reading of applicable law.” Smith, 2025 WL 3092772, at *7 (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).

Finally, the Court sees no exceptional circumstances that would warrant retaining jurisdiction and reaching the errant-seizure claim. The parties have completed discovery, but trial remains months away. See Dkt. No. 18 at 1. The Court's resolution of the majority of Nevarez's claims means that the parties need not traverse the whole path of litigation again and may find a resolution in a court better positioned to hear Nevarez's novel claim with minimal delay. Accordingly, the Court does not reach the merits of Nevarez's errant-seizure claim under the Texas UCC.

D. The Court dismisses Nevarez's claims against Johnston and his Texas UCC breach-of-the-peace claim against the Bank with prejudice, but dismisses his errant-seizure claim against the Bank without prejudice.

“[A] plaintiff's failure to meet the specific pleading requirements should not automatically or inflexib[ly] result in dismissal of the complaint with prejudice to re-filing.” Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). That is because the Federal Rules of Civil Procedure “evince[ ] a bias in favor of granting leave to amend.” Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (quotation omitted); see Fed. R. Civ. P. 15(a). And a court should typically grant leave to amend if the plaintiff has not pled his “best case.” See Wiggins v. La. State Univ.—Health Care Scis. Div., 710 F. App'x 625, 627 (5th Cir. 2017) (quoting Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009)). Indeed, the Federal Rules call on a court to “afford[ ] every opportunity for the plaintiff to state a claim upon which relief can be granted.” In re Kosmos Energy Ltd. Secs. Litig., 955 F. Supp. 2d 658, 677 (N.D. Tex. 2013) (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)).

However, it is within the Court's discretion to dismiss with prejudice where the plaintiff has, in fact, pled his best case. Wiggins, 710 F. App'x at 627. A plaintiff does so when he persists with his complaint despite being “apprised of [its] insufficiency.” Id. (quoting Dark v. Potter, 293 F. App'x 254, 257 (5th Cir. 2008)).

This case fits into the latter category. In its original Order dismissing Nevarez's claims without prejudice, the Court granted Nevarez leave “to file an amended complaint that states a claim for relief under the FDCPA and Texas UCC.” Dkt. No. 25 at 11. In doing so, the Court recognized Nevarez's complaint was “paltry” but also that the parties were on the verge of completing discovery. Id. In other words, if there were ever grounds for Nevarez's claims, they could have been made using the full force of the facts that had been revealed through diligent discovery. A more detailed complaint would have given Nevarez more room to allege, more room to sow fact-laden ambiguity, and far better odds of progressing through the motion-to-dismiss stage.

Instead, his amended complaint hardly alleges any more facts than the first. In fact, nearly all of the allegations in the new complaint are methodical and drawn-out deliberations of the statements made in the original. For instance, Nevarez originally said the agent “damaged” the black truck. Dkt. No. 1 ¶ 41. In the new complaint, Nevarez specifies that the truck had rear-wheel drive, that the agent pulled the truck by its front tires, and therefore that damaged occurred to the drivetrain, rear tires, and Nevarez's driveway. Dkt. No. 26 ¶¶ 41–44. In the original complaint, Nevarez said that the agent “paused [the] repossession” when confronted. Dkt. No. 1 ¶ 43. In the new complaint, Nevarez needlessly specifies that, when he paused to do so, the agent left the vehicle “elevated several feet in the air” (Dkt. No. 26 ¶ 48)—something that was already implied by the original allegation that the agent dropped the truck (Dkt. Nos. 1 ¶ 45; 26 ¶ 50).

The only information that is new and not already inferred from the facts of the original complaint was that the encounter lasted “around three minutes” and that the agent denied responsibility for the damage. Dkt. No. 26 ¶¶ 48, 53. Having taken his opportunity to plead more detailed facts that would have overcome the deficiencies in his complaint, the Court “can assume ․ that the specific allegations of the amended complaint constitute [his] best case.” Wiggins, 710 F. App'x at 627 (quoting Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985)). Indeed, there is no reason to expect that the few days between the filing of Nevarez's amended complaint and the close of discovery would have changed matters. Nevarez is not proceeding pro se, but through counsel who had the opportunity to investigate most, if not all, of the relevant issues and incorporate them into the amended complaint. If there were anything more that could have been said, it would have been said already.

Finally, granting further leave to amend would waste the resources of the Court and the parties. If Nevarez's amended complaint and briefing are any indication, a second amended complaint would merely give Nevarez a third chance to brief the legal issues before this Court, when his opportunity to have done so persuasively has passed him by twice.

The Court therefore dismisses Nevarez's FDCPA claims and his Texas UCC breach-of-the-peace claim with prejudice. But because of the novelty of Nevarez's Texas UCC errant-seizure claim and due to the dismissal of his federal claims, Nevarez's errant-seizure claim is dismissed without prejudice.

4. Conclusion

Garry Johnston's repossession agent made a mistake. He picked up Pedro Nevarez's black pickup truck and damaged it, when he ought to have seized the blue truck instead. The parties agree the errant seizure was a mistake, but Nevarez strenuously insists this conduct amounted to a breach of the peace; and if it had not so amounted, that the FDCPA and Texas UCC punish the defendants for the agent's mishap.

But the facts as alleged here, taken together with all reasonable inferences in Nevarez's favor, do not amount to a breach of the peace. Where a repossession agent is confronted, but actively strives to preserve peace by investigating and then ceasing the repossession attempt, he is not liable for a breach of the peace under Texas law. That is the case even where the agent was negligent in the process of ending his attempt. Moreover, the plain text of the FDCPA—if it permits claims against the errant seizure of non-collateral at all—does not punish the accidental seizure of non-collateral where no breach of the peace occurred.

After using his opportunity to amend his complaint to repeat the same facts and advance distinct theories of liability, the Court dismisses Nevarez's claims against Johnston and his Texas UCC breach-of-the-peace claim against the Bank with prejudice. Because the Court dismisses the federal claims with prejudice, it need not address Nevarez's errant-seizure claim under the Texas UCC, which is dismissed without prejudice.

So ordered on February 25, 2026.

FOOTNOTES

1.   When no state supreme court case governs a decision, a court “must make an educated ‘Erie guess’ as to how the [Texas] Supreme Court would resolve” the case. Audler v. CBC Innovis Inc., 519 F.3d 239, 248–49 (5th Cir. 2008) (quoting Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 431 (5th Cir. 2007)). “In doing so, [the Court] may consult a variety of sources, including the general rule on the issue, decisions from other jurisdictions, and general policy concerns.” Id. at 249 (citation omitted). “When making an Erie guess,” the Court may not “adopt innovative theories of state law” but must “aim simply to apply that law as it currently exists.” Weatherly v. Pershing, LLC, 945 F.3d 915, 920 (5th Cir. 2019) (internal quotation marks omitted). To do so, the Court may rely on intermediate appellate court decisions like Chapa, even though they “are not controlling.” Schirle, 484 F. App'x at 896–97 (quoting Packard, 624 F.3d at 729).

2.   For that to be true, one would have to ignore the existence of negligence by omission.

3.   But see Ivy, 612 So. 2d at 1111 (noting that Mississippi courts have held that agents do not breach the peace when faced with a debtor who has merely “strongly objected”).

4.   Nevarez tries to distinguish Chapa because the repossession attempt there lasted only thirty seconds. Dkt. No. 29 at 13. But even if the Court were to emphasize the time at issue in Chapa, it would not work in Nevarez's favor. Though the initial attempt lasted seconds, it went unnoticed. 267 S.W.3d at 389. The agent did not return to the victim's home until twenty minutes later. Id. at 400 n.23.

5.   The complaint suggests that the incident fully concluded after the agent's denial, as Nevarez's briefing indicates that he only surrendered the blue truck at a “later” date. Dkt. Nos. 29 at 2 n.1; 30 at 2 n.1.

6.   Nevarez's original and amended complaints made pro forma allegations that the agent “acted with malice and/or gross neglect.” Dkt. Nos. 1 ¶ 61; 26 ¶ 74. These allegations are element recitations made as part of Nevarez's request for exemplary damages. See, e.g., Ford Motor Credit Co. v. Washington, 573 S.W.2d 616, 618–19 (Tex. App.—Austin 1978, writ ref'd n.r.e.). But to state a claim, it is not enough to recite the elements of culpability: the complaint must “plausibly allege” the kind of culpable behavior required for the particular claim. Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280, 291, 145 S.Ct. 1556, 221 L.Ed.2d 910 (2025).

7.   Accordingly, the Court need not take up Nevarez's theory that the defendants would be liable for breaching the peace if, in the process of ceasing their repossession attempt, Nevarez lashed out with a show of physical force or violence. See Dkt. No. 29 at 8–9.

8.   Johnston understands Nevarez to claim that an errant seizure gives rise to a breach of the peace, but Nevarez's point is different: he urges that even if no breach occurred, Johnston would still be liable. Dkt. No. 30 at 6–7.

9.   Nevarez later claims Johnston “claimed [the black truck] as collateral.” Dkt. No. 26 ¶ 64. But he does so in merely reciting the elements of Section 1692f, which this Court need not accept as part of Nevarez's factual pleading. Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.

10.   One court has suggested that it would apply to non-collateral seized in an attempt to enforce payment on the collateral. Nadalin v. Automobile Recovery Bureau, Inc., 169 F.3d 1084, 1085 (7th Cir. 1999) (Posner, J.). The Court need not assess whether such conduct is covered under subsection (6)(A).

11.   Further, to the extent Nevarez seeks to allege liability under Section 1692f(6)(C), he fails for the reasons described in Gallagher. See Dkt. No. 26 ¶ 64 (citing Section 1692f(6)(A) but reciting the elements of Section 1692f(6)(C)).

12.   This line of argument was raised in the Bank's continued argument that Nevarez is not an eligible debtor under the Texas UCC. Because the Court dismissed Nevarez's original complaint on breach-of-the-peace grounds, it did not reach this contention in its prior Order. See Dkt. No. 25 at 10.

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE