Court of Appeal (Tx.) Not Convinced that Repossession was Completed so as to Avoid Liability for Breach of the Peace

In Price Auto Sales, Inc. v. Sanders, 2012 WL 3734388 (Tex.App.-Dallas 2012), the Texas Court of Appeal held that it need not decide whether the completion of a repossession was an affirmative defense to a claim that the secured party repossessed a vehicle in breach of the peace because the Court of Appeal was not convinced that the repossession was completed.

Section 9.609 of the Texas Business and Commerce Code provides that a secured party may take possession of collateral after a default without judicial process “if it proceeds without breach of the peace.” TEX. BUS. & COM.CODE ANN. § 9.609(a)(1) & (b)(2) (West 2011). The rule imposing liability for breaches of the peace is based on longstanding policy concerns about the exercise of force or violence and recognizes that society’s interest in preserving the peace is more important than a secured party’s right to possession. See MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 152–53 (Tex .1992). When a secured party chooses to pursue a nonjudicial repossession, it assumes the risk that a breach of the peace might occur. Id. at 154. ¶ We have found no Texas cases that recognize any affirmative defense to a breach of the peace claim other than proving that no breach of the peace occurred. See id. at 155 (Cook, J., dissenting). Price Auto acknowledges that Texas has not yet recognized an affirmative defense based on the completion of the repossession.  It therefore relies on cases from Connecticut and Minnesota to support its contentions. See Clark v. Auto Recovery Bureau Conn. Inc., 889 F.Supp 543 (D.Conn.1994) ( repossession of vehicle using tow truck was complete where vehicle was removed from its parking space before plaintiff ar-rived at scene to voice any objection to repossession); Thompson v. First State Bank of Fertile, 709 N.W.2d 307 (Minn.Ct.App.2006) ( repossession complete and no breach of peace where vehicle attached to tow truck and its rear wheels lifted from ground before any contact with the plaintiff). We need not decide whether Texas law recognizes this affirmative defense to a breach of the peace claim because, even assuming such a defense exists in Texas, we are unpersuaded that the record before us conclusively established Kuykendall completed the repossession of Sanders’s vehicle before any breach of peace occurred. ¶  There was evidence that Sanders heard his car’s ignition and saw the vehicle being backed out of its parking space. Before Kuykendall left the vicinity of the parking spot or the parking lot, Sanders approached the front of the car and demanded the unidentified driver get out of the vehicle. According to Sanders and two other witnesses, during this confrontation, the vehicle rolled over Sanders’s foot causing him to fall and sustain further injuries. This evidence demonstrates that Sanders confronted Kuykendall as he was in the process of removing the vehicle from its parking place and attempting to drive it from Sanders’s apartment complex. Because the evidence does not conclusively establish repossession was completed, Price Auto has not demonstrated any reversible error in connection with the trial court’s determination that a breach of the peace occurred in the process of the repossession.