Golden v. Westlake Finance Services, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEVIN R. GOLDEN,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:24-cv-4093
WESTLAKE FINANCE
SERVICES, LLC, AND
WESTLAKE DIRECT, LLC,
Defendants.
MEMORANDUM, RECOMMENDATION, AND ORDER
Pending before the Court1 are multiple motions, including Defendants
Westlake Services, LLC dba Westlake Financial Services, incorrectly named
as Westlake Finance Services, LLC, and Westlake Direct, LLC’s (collectively,
“Defendants”) Motion to Dismiss (ECF No. 65), pro se Plaintiff Kevin R.
Golden’s (“Plaintiff”) Motion for Judicial Notice (ECF No. 75), and Defendants’
Opposed Motion to Continue (ECF No. 86).2 Based on a review of the motions,
arguments, and relevant law, the Court RECOMMENDS Defendants’ Motion
to Dismiss (ECF No. 65) be GRANTED IN PART AND DENIED IN PART.
1 On November 15, 2024, this case was referred to the Undersigned for all purposes
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF
No. 5). 2 Plaintiff also filed a “Motion to Object to Defendant’s FRCP 12(b) Claims Pursuant
to Plaintiff’s Amended Complaint” (ECF No. 71), which the Court construes as Plaintiff’s
Response to Defendants’ Motion to Dismiss (ECF No. 65). The Court will edit the docket to
reflect as such.
United States District Court
Southern District of Texas
ENTERED
April 24, 2026
Nathan Ochsner, Clerk
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Further, the Court DENIES Plaintiff’s Motion for Judicial Notice3 (ECF No.
75) and DENIES AS MOOT Defendants’ Opposed Motion to Continue (ECF
No. 86).
I. 	Background
On October 18, 2024, proceeding pro se, Plaintiff filed suit against
Defendants. 	(ECF No. 1). 	As of Plaintiff’s Second Amended Complaint
(“SAC”), Plaintiff alleges violations of the Truth in Lending Act (“TILA”), the
Fair Credit Billing Act (“FCBA”), the Americans with Disabilities Act (“ADA”),
the 	Texas 	Deceptive 	Trade 	Practices 	Act 	(“DTPA”), 	the 	Equal 	Credit
Opportunity Act (“ECOA”), and brings state law claims for breach of contract,
fraudulent misrepresentation, common fraud, fraud in the inducement, and
fraud by nondisclosure. (ECF No. 64 at 3, 56–74). It appears to the Court that
this case arises out of a car loan for a 2016 BMW X3. 	(See id. at 17–18). 	On
October 14, 2025, Defendants filed their Third Motion to Dismiss (ECF No. 65).
3 Plaintiff’s Motion for Judicial Notice (ECF No. 75) is denied because Plaintiff
requests the Court recognize (1) legal standards that it is already aware of (id. at 2–8) and
(2) disputed facts that are inappropriate for judicial notice (id. at 9–11). See Abor v. Planet
Home Lending LLC, No. 3:24-cv-2205, 2025 WL 565677, at *1 (N.D. Tex. Jan. 10, 2025) (“The
facts that Plaintiffs submit to be judicially noticed are [not appropriate for judicial notice]—
they are instead facts concerning loan documentation, the parties’ compliance with legal
requirements, or other matters that are the very subject of this dispute.”).
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II. 	Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) provides for dismissal
of an action for “failure to state a claim upon which relief can be granted.” F ED.
R. C IV . P. 12(b)(6). 	When considering a motion to dismiss, a court should
construe the allegations in the complaint favorably to the pleader and accept
as true all well-pleaded facts. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546
(5th Cir. 2010). 	In the Fifth Circuit, motions to dismiss under Rule 12(b)(6)
are viewed with disfavor and rarely granted. 	Lormand v. U.S. Unwired, Inc.,
565 F.3d 228, 232 (5th Cir. 2009). To survive dismissal, a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” 	Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
However, a court is not bound to accept legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of a plaintiff, a plaintiff must
plead “specific facts, not mere conclusory allegations.” 	Tuchman v. DSC
Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Firefighters’ Ret.
Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (“Although a
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complaint does not need detailed factual allegations, the allegations must be
enough to raise a right to relief above the speculative level . . . .”) (internal
quotations omitted)). “‘Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” 	Firefighters’ Ret.
Sys., 894 F.3d at 669 (quoting Iqbal, 556 U.S. at 678). 	“The court is not
required to conjure up unpled allegations or construe elaborately arcane
scripts to save a complaint.” Santerre v. Agip Petroleum Co., Inc., 45 F. Supp.
2d 558, 568 (S.D. Tex. 1999) (internal quotations omitted).
To determine whether to grant a Rule 12(b)(6) motion, a court may only
look to allegations in a complaint to determine their sufficiency. 	Id.; Atwater
Partners of Tex. LLC v. AT & T, Inc., No. 2:10-cv-175, 2011 WL 1004880, at *1
(E.D. Tex. Mar. 18, 2011). 	“A court may, however, also consider matters
outside the four corners of a complaint if they are incorporated by reference,
items 	subject 	to 	judicial 	notice, 	matters 	of 	public 	record, 	orders, 	items
appearing in the record of a case, and exhibits attached to a complaint whose
authenticity is unquestioned.” Joubert on Behalf of Joubert v. City of Houston,
No. 4:22-cv-3750, 2024 WL 1560015, at *2 (S.D. Tex. Apr. 10, 2024). 	“A
document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” 	Erickson v. Pardus, 551 U.S. 89, 94
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(2007) (internal citations and quotation marks omitted); see also FED. R. C IV .
P. 8(e) (“Pleadings must be construed so as to do justice”).
III. 	Discussion
Defendants move to dismiss Plaintiff’s SAC. 	(ECF No. 65 at 1–3). 	The
Court 	will 	address 	Defendants’ 	arguments 	as 	to 	each 	cause 	of 	action
individually.
a. TILA
Defendants argue Plaintiff’s TILA claim should be dismissed because
Plaintiff admits that he signed the Retail Installment Sales Contract, which
contained all TILA-required disclosures. (ECF No. 65 at 7 (citing ECF No. 64
at 17–18)). 	Plaintiff filed a forty-two-page response that is difficult to follow;
however, it is evident that Plaintiff disagrees with Defendants’ arguments.
(See ECF No. 71 at 14–18).
The 	TILA 	is 	a 	strict-liability 	statute 	that 	requires 	a 	lender 	in 	a
commercial credit transaction to disclose certain terms and conditions of the
transaction to a borrower prior to consummating the loan. 	See 15 U.S.C. §
1601. 	To comply with its TILA duties, a creditor must disclose: its name, the
amount financed, the itemization of the amount financed, the finance charge,
the annual percentage rate, the payment schedule, the total of payments, and
the total sales price. See 15 U.S.C. § 1638 (listing required disclosures).
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Here, Defendants argue the Retail Installment Sales Contract signed by
Plaintiff on March 8, 2023, “clearly disclosed all TILA-required information:
the 	amount 	financed: 	$13,971.26; 	the 	APR: 	17.90%; 	the 	finance 	charge:
$7,280.14; the total of payments: $21,251.40; and the payment schedule: 60
monthly payments of $354.19.” 	(ECF No. 65 at 7 (citing ECF No. 64 at 17–
18)). Thus, Defendants contend Plaintiff “cannot plausibly allege that required
disclosures were missing when his own complaint acknowledges they were
present in the contract he signed.” (Id.).
In listing his claims for relief, Plaintiff begins by stating the following:
The Company initially violated the [TILA] by failing to disclose,
PRIOR 	TO 	GOLDEN 	SIGNING 	THE 	NEGOTIABLE
INSTRUMENT, 	who 	the 	creditor/lender 	is 	pursuant 	to
financing/obtain[ing] the goods. 	WLD did not disclose any of
Golden’s periodic statements via mail or delivery after the signing
of the contract and per the first payments rendered that did not go
into WLD’s account as associated within the contract, quite the
contrary, WLF set up an account and took over the payments in
having 	to 	withdraw 	payments 	monthly 	during 	the 	entire
consideration of the contract of WLF continued debited transaction
payments. 	By Golden having no contract with WLF – i.e. Golden
is 	not 	subject 	to 	terms, 	conditions, 	waivers, 	obligations 	or
otherwise established via WLF . . . .
(ECF No. 64 at 57). 	In another paragraph, Plaintiff states “Westlake Direct,
LLC did not disclose, in consideration of the contract, that Westlake Financial
is the creditor of the underlying purchase money loan and promissory note.”
(Id. at 59). This is what Plaintiff alleges is the TILA violation. (See id.).
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It is evident from Plaintiff’s allegations that there is confusion between
“Westlake 	Direct,” 	which 	Plaintiff 	refers 	to 	as 	“WLD,” 	and 	“Westlake
Financial,” which Plaintiff refers to as “WLF.” (See ECF No. 64 at 3). The two
are related. 	“Westlake Financial is a . . . finance company that specializes in
the 	acquisition 	and 	servicing 	of 	prime 	to 	subprime 	automotive 	retail
installment contracts.”4 	“[Westlake Financial’s] dealer leads and direct-to-
consumer auto loans are offered through Westlake Direct.”5 Id.
Defendants 	argue 	Plaintiff 	acknowledges 	that 	many 	of 	the 	TILA
requirements were met. (See ECF No. 64 at 17). The Court agrees. However,
Defendants do not appear to address Plaintiff’s argument that “[t]he negotiable
instrument states that the actual ‘lender’ (WLD) has the rights in which to
repossess the consumer good if the plaintiff is in default of WLD account. The
contract does not disclose WLF as a party, other owner or otherwise subject to
the transaction between the plaintiff and WLD.” (Id. at 18–19).
4 	About 	Us, 	Westlake 	Fin., 	https://www.westlakefinancial.com/about-
us/#:~:text=Westlake%20Financial%20is%20a%20technology,dealerships%20throughout%2
0the%20United%20States (last visited Apr. 23, 2026).
5 Westlake Direct Ignites Car Buying with Digital Financing Innovation, Collision
Repair 	Mag., 	Sep. 	30, 	2023,
https://www.collisionrepairmag.com/home/article/15764141/westlake-direct-ignites-car-
buying-with-digital-financing-
innovation#:~:text=Westlake%20Direct%20started%20originating%20direct,%2C%20www.l
oancenter.com.&text=Post%20a%20Comment%20You%20must,%2Dclick%20sign%2Din%2
0link.
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Based on the allegations in Plaintiff’s SAC, and accepting them as true
as the Court is required to do, the Court finds Plaintiff has sufficiently stated
a TILA claim against Defendants by alleging Defendants failed to comply with
TILA duties to disclose the name of the creditor.6
b. FCBA
Defendants argue Plaintiff’s FCBA claim should be dismissed because
the FCBA does not apply to closed-end automotive financing. 	(ECF No. 65 at
8). 	Plaintiff does not appear to address Defendants’ argument and instead
states that his SAC “asserts that the defendant WLD was provided a Adequate
Billing Error Notice on July 27, 2024 and received the Notice on August 5, 2024
and had until September 5, 2024 to send a written or delivered acknowledge of
the Billing Error Notice . . . .” (See ECF No. 71 at 14).
“The FCBA applies only to open-end credit transactions, such as a
revolving line of credit, and the onetime sale and purchase of a vehicle is
outside the purview of the statute’s protections.” McLean v. Big Dog Grp., LLC,
6 The Court notes that Plaintiff alleges he signed the relevant contract on February
16, 2024 (ECF No. 64 at 11, 20) whereas Defendants state the contract was signed on March
8, 2023 (ECF No. 65 at 7). 	A damages action for a TILA nondisclosure violation “must be
brought ‘within one year from the date of the occurrence of the violation.’” 	Hunter v. Ally
Bank Corp., No. 25-cv-1043, 2025 WL 3009346, at *6 (E.D. La. Oct. 9, 2025), report and
recommendation adopted sub nom. Hunter v. Ally, No. 25-cv-1043, 2025 WL 3003338 (E.D.
La. Oct. 27, 2025) (quoting 15 U.S.C. § 1640(e)). Here, Plaintiff filed suit against Defendants
on October 18, 2024. 	(ECF No. 1). 	Accepting Plaintiff’s allegations as true, Plaintiff’s TILA
claim is not time-barred as he filed suit within one year of February 16, 2024. Hunter, 2025 WL
3009346, at *6 (“The violation occurs at the time the loan is consummated . . . .”).
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No. 15-cv-40, 2016 WL 3211514, at *9 (M.D. La. Mar. 11, 2016). 	Thus,
Plaintiff’s cause of action cannot be maintained because the scope of the FCBA
does not extend to a closed-end transaction for the purchase of a vehicle. 	See
id. at *10 (“Here, the Retail Installment Sale Contract represents a closed-end
consumer credit transaction because the sale of the vehicle to McLean did not
contemplate repeated transactions and the finance charge was not dependent
on the outstanding unpaid balance on his account.”).
Defendants alternatively argue that, even if the FCBA could apply to
this transaction, “[t]he FCBA requires a consumer to send written notice of a
billing error within 60 days after the creditor transmitted the first periodic
statement showing the alleged error. 	(ECF No. 65 at 9 (citing 15 U.S.C. §
1666(a))). Thus, because Plaintiff alleges he sent a billing error notice on July
27, 2024, Defendants argue the notice came more than seventeen months after
the contract was executed on March 8, 2023, which far exceeds the 60-day
statutory window. (Id.).
As such, the Court finds that Plaintiff has failed to state an FCBA claim
against Defendants.
c. 	ADA
Defendants argue Plaintiff’s ADA claim should be dismissed because,
while 	Plaintiff’s 	SAC 	describes 	Defendants’ 	“financing 	activities 	and
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telephone/mail communications,” it does not identify any physical facility,
store, 	office, 	or 	other 	“place 	of 	public 	accommodation” 	owned, 	leased, 	or
operated by Defendants. 	(ECF No. 65 at 11). 	Plaintiff’s response, although
indecipherable, disagrees with Defendants’ arguments. (See ECF No. 71 at 5–
12).
Title III of the ADA states:
No 	individual 	shall 	be 	discriminated 	against 	on 	the 	basis 	of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). 	Thus, to be liable under the statute, a defendant must
be a “person who owns, leases (or leases to), or operates a place of public
accommodation.” 	Id. 	The 	statute 	does 	not 	define 	“place 	of 	public
accommodation,” but it does define “public accommodation.” See id. § 12181(7).
Under the statute, “private entities are considered public accommodations . . .
if the operations of such entities affect commerce” and fall into one of twelve
enumerated 	categories. 	Id. 	§ 	12181(7)(A)–(L). 	Every 	type 	of 	public
accommodation listed in § 12181(7) “is a physical place open to public access .
. . where goods or services are open to the public, and places where the public
gets those goods or services.” Magee v. Coca-Cola Refreshments USA, Inc., 833
F.3d 530, 534 (5th Cir. 2016) (internal quotations omitted).
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Here, Plaintiff does not identify any physical facility, store, office, or
other 	“place 	of 	public 	accommodation” 	owned, 	leased, 	or 	operated 	by
Defendants. 	Instead, the SAC describes only Defendants’ financing activities
and telephone/mail communications. 	(See ECF No. 64 at 5, 59–61). 	Because
Plaintiff’s SAC does not describe a physical place that fails to comply with the
ADA, he fails to sufficiently allege an ADA claim against Defendants. See Zaid
v. Smart Fin. Credit Union, No. 18-cv-1130, 2019 WL 314732, at *6 (S.D. Tex.
Jan. 24, 2019) 	(“While websites 	may 	be affiliated with 	brick-and-mortar
businesses that are places of public accommodation, that does not render the
businesses’ websites themselves places of public accommodation. 	Because a
website is not a place of public accommodation under the ADA, [defendant]
cannot be liable for its website’s alleged failure to comply with the ADA.”).
d. ECOA
Defendants argue Plaintiff’s ECOA claim should be dismissed because
Plaintiff does not plausibly allege a qualifying adverse action on a completed
application for credit from Defendants or that Defendants’ duty to provide
specific written reasons under 15 U.S.C. § 1691(d) was triggered or that any
required notice was absent. 	(See ECF No. 65 at 13–14). 	Plaintiff disagrees
with Defendants’ arguments. (See ECF No. 71 at 28–33).
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The ECOA makes it unlawful for a creditor to discriminate against any
applicant on the basis of race, color, religion, national origin, sex or marital
status, or age, see § 1691(a)(1), and requires creditors to notify credit applicants
of any adverse actions taken on their applications and the reasons for the
adverse 	actions, 	see 	§ 	1691(d). 	“[T]he 	plain 	language 	of 	the 	ECOA
unmistakably provides that a person is an applicant only if she requests
credit.” Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 707 (5th Cir. 2017)
(internal quotation omitted).
In Plaintiff’s SAC, he alleges that he:
submitted a valid consumer credit application for the purpose of
obtaining 	financing 	to 	possess 	a 	motor 	vehicle. 	Defendant
approved 	the 	application 	and 	extended 	Plaintiff 	an 	open-end
consumer 	credit 	account, 	thereby 	creating 	both 	a 	contractual
obligation 	and 	a 	statutory 	duty 	under 	ECOA 	to 	make 	credit
available in accordance with the terms of the account. . . . However,
despite 	approving 	the 	account, 	Defendant 	wrongfully 	denied
Plaintiff access to the approved credit line when Plaintiff sought to
use the account to obtain the motor vehicle on credit. 	This denial
constitutes an adverse action within the meaning of ECOA because
Plaintiff was effectively deprived of the use of credit for which
approval had already been granted.
(ECF No. 64 at 69). 	Plaintiff also argues in response to Defendants’ motion
that Defendants’ “conduct was discriminatory by treating the plaintiff as a
minor as to not having the capacity to contract and by denying the plaintiff
the existence of his extended line of credit by existence of an already active
open end consumer credit account.” (ECF No. 71 at 33 (emphasis in original)).
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However, 	Plaintiff 	fails 	to 	address 	Defendants’ 	argument 	that
“[Plaintiff’s] theory that he was entitled to open-end credit (which Westlake
does not offer in this transaction) does not transform routine product/terms
decisions into ECOA ‘adverse action,’ and the SAC pleads no facts showing
Westlake’s 	duty 	to 	issue 	an 	ECOA 	notice 	was 	triggered 	under 	these
circumstances.” 	(ECF No. 65 at 13). 	The Court also agrees with Defendants’
argument that Plaintiff’s SAC “supplies no non-conclusory facts showing
discrimination on any protected basis.” (Id.).
Simply put, the Court finds Plaintiff has failed to state a claim for a
violation of his rights under the ECOA because his SAC is devoid of detail or
explanation regarding how those rights were allegedly violated or how he was
discriminated against due to a protected basis. 	See Caesar v. Wells Fargo
Bank, N.A., No. 1:19-cv-485, 2020 WL 4950883, at *3 (E.D. Tex. July 14, 2020),
report and recommendation adopted, No. 1:19-cv-485, 2020 WL 4933665 (E.D.
Tex. Aug. 21, 2020) (granting a motion to dismiss on a pro se plaintiff’s ECOA
claim where the plaintiff failed to do more than vaguely allege an ECOA claim).
e. 	FDCPA/Wrongful Repossession
Defendants 	argue 	Plaintiff’s 	FDCPA/wrongful-repossession 	claims
should be dismissed because (1) Defendants, as a creditor collecting its own
collateral, is 	not 	a 	“debt 	collector” 	and (2) 	the 	SAC 	omits 	basic 	facts 	a
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repossession claim would require. (ECF No. 65 at 15). Plaintiff responds that
“WLF repossessed but was not the secured party of record – i.e., not name as
the creditor . . . [and] lacked a ‘present right to possession’ according to the
contract.” (ECF No. 71 at 34).
The purpose of the FDCPA is to “eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain
from 	using 	abusive 	debt 	collection 	practices 	are 	not 	competitively
disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 	15 U.S.C. § 1692(e). 	The FDCPA governs
actions by “debt collectors” against “consumers” and is intended “to protect
consumers from a host of unfair, harassing, and deceptive debt collection
practices without imposing unnecessary restrictions on ethical debt collectors.”
Peter v. GC 	Servs. 	L.P., 310 	F.3d 344, 351–52 (5th 	Cir. 2002) (internal
quotations omitted). “To state a claim under the FDCPA, Plaintiff [is] required
to allege facts showing: (1) Plaintiff was the object of collection activity arising
from a consumer debt; (2) [Defendants are] a debt collector defined by the
FDCPA; and (3) [Defendants] engaged in an act or omission prohibited by the
FDCPA.” 	Hardaway v. Toyota Fin. Servs., No. 4:21-cv-194, 2022 WL 317758,
at *4 (E.D. Tex. Feb. 2, 2022).
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Here, 	the 	Court 	agrees 	with 	Defendants 	that 	they 	are 	not 	“debt
collectors” within the meaning of the FDCPA because they acted “as a creditor
collecting on its own collateral.” 	(ECF No. 65 at 15); see James v. Ally Bank,
No. 4:21-cv-925, 2023 WL 1093891, at *3 (E.D. Tex. Jan. 3, 2023), report and
recommendation adopted, No. 4:21-cv-925, 2023 WL 1081270 (E.D. Tex. Jan.
27, 2023) (“Courts have repeatedly found that banks and financial institutions
attempting 	to 	collect 	their 	own 	debts 	are 	not 	debt 	collectors 	under 	the
FDCPA.”) (collecting cases). 	Plaintiff’s FDCPA claim fails for this reason
alone. 	See id. (“The short of the matter is that any claim James attempts to
raise under the FDCPA against the Ally Defendants fails because the Ally
Defendants are not debt collectors as defined by that statute.”); Collins v.
Westlake Fin. Servs., No. 25-cv-021, 2025 WL 756205, at *3 (W.D. Tex. Mar.
10, 2025), reconsideration denied, No. 25-cv-021, 2025 WL 890787 (W.D. Tex.
Mar. 12, 2025), and aff’d, No. 25-50340, 2026 WL 85057 (5th Cir. Jan. 12, 2026)
(dismissing a FDCPA claim because, “by repossessing the Vehicle, [Defendant]
was collecting a debt owed to it, not ‘due another”).
As to Plaintiff’s wrongful-repossession claim, when a debtor defaults on
a 	loan 	obligation, 	a 	secured 	party 	may 	take 	possession 	of 	the 	assigned
collateral, dispose of it, and apply the proceeds to help satisfy the obligation.
TEX . B US. & C OM. C ODE §§ 9.609, 9.610, 9.615.
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Here, 	Plaintiff 	appears 	to 	acknowledge 	that 	he 	stopped 	making
payments and sent Defendants a “Notice of Default” on July 27, 2024. 	(See
ECF No. 64 at 40). 	Plaintiff also appears to acknowledge that Defendants
notified Plaintiff that they “do not accept non-legal tender” and that Plaintiff’s
“account will continue as it is and [Plaintiff] will remain liable for this loan
until it is fully paid.” 	(Id. at 49). 	Plaintiff also adds that Defendants stated
that it would “not release [their] security interest in the vehicle until such time
as the contract is satisfied.” (Id.).
In sum, because Plaintiff defaulted on the loan obligation held by
Defendants, Defendants, as the secured party, may take possession of the
Vehicle, dispose of it, and apply the proceeds to help satisfy the loan. See TEX .
B US. & C OM. C ODE §§ 9.609, 9.610, 9.615. 	As such, the Court finds Plaintiff
fails to sufficiently plead a cause of action for wrongful repossession. 	See
Collins, 2025 WL 756205, at *4.
f. 	State Common-Law Fraud
Defendants 	argue 	Plaintiff’s 	common-law 	fraud 	claim 	should 	be
dismissed because Plaintiff identifies no concrete misrepresentation, cannot
plausibly allege justifiable reliance in the face of the written loan terms and
any disclaimer language, and pleads no duty to disclose. 	(ECF No. 65 at 16–
17). Plaintiff disagrees. (ECF No. 71 at 35–36).
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In Texas, the elements of common law fraud are: (1) the defendant made
a representation to the plaintiff; (2) the representation was material; (3) the
representation was false; (4) when the defendant made the representation, the
defendant knew it was false or made the representation recklessly and without
knowledge of its truth; (5) the defendant made the representation with the
intent that the plaintiff act on it; (6) the plaintiff relied on the representation;
and (7) the representation caused the plaintiff injury. 	Shandong Yinguang
Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032–33 (5th Cir.
2010) (citing Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573,
577 (Tex. 2001)).
Rule 	9(b) 	contains 	a 	heightened 	pleading 	standard 	and 	requires 	a
plaintiff to plead the circumstances constituting fraud with particularity. See
FED. R. C IV . P. 9(b); City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148,
153 (5th Cir. 2010). 	“[A]rticulating the elements of fraud with particularity
requires a plaintiff to specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements were made, and
explain why the statements were fraudulent.” 	Williams v. WMX Techs., 112
F.3d 175, 177 (5th Cir. 1997). “Put simply, Rule 9(b) requires ‘the who, what,
when, where, and how’ to be laid out” with respect to a fraud claim. Benchmark
Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003). “A dismissal
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for failure to plead fraud with particularity pursuant to Rule 9(b) is treated the
same as a Rule 12(b)(6) dismissal for failure to state a claim.” 	McCall v.
Genentech, Inc., No. 3:10-cv-1747, 2011 WL 2312280, at *3 (N.D. Tex. June 9,
2011) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.
1996)).
Here, Plaintiff’s common law fraud claim is difficult to decipher, and the
Court is unable to locate the “who, what, when, where, and how” of Plaintiff’s
claim as required under Rule 9(b). (See ECF No. 64 at 71–72). In response to
Defendants’ 	motion, 	Plaintiff 	argues 	Defendants 	“made 	material
misrepresentations to the Plaintiff by identifying itself within the written
consumer 	credit 	contract 	as 	the 	creditor 	extending 	credit 	to 	finance 	the
purchase of consumer goods.” 	(ECF No. 71 at 35). 	Plaintiff also argues
Defendants “operated under a table-funded business arrangement.” (Id.).
“[A] blanket assertion of fraud will not survive a motion to dismiss.”
Pranav Pothineni, et al. v. Pavan Varenya Chagarlamudi, et al., No. 4:25-cv-
800, 2026 WL 554750, at *4 (E.D. Tex. Feb. 23, 2026). By failing to allege his
fraud claim with the specificity required, Plaintiff has not put Defendants on
fair notice of the allegations made against it. See Lakewood Chiropractic Clinic
v. Travelers Lloyds Ins. Co., No. 4:09-cv-1728, 2009 WL 3602043, at *3 (S.D.
Tex. Oct. 27, 2009) (“Plaintiffs must put defendants on fair notice of the
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allegations against them; not require defendants to ‘glean’ the factual basis of
such allegations from a list of ambiguous legal conclusions.”).
As such, the Court recommends Plaintiff’s claim for common law fraud
be dismissed for failing to satisfy the heightened pleading requirements of Rule
9(b). 	See Hernandez v. Pennymac Loan Servs., LLC, No. 23-cv-312, 2023 WL
2874456, at *3 (W.D. Tex. Apr. 10, 2023).
g. Fraudulent Inducement
Defendants argue Plaintiff’s fraudulent inducement claim should be
dismissed 	because 	“Plaintiff 	does 	not 	identify 	any 	specific, 	pre-contract
statement, 	who 	said 	what, 	when, 	and 	how, 	that 	falsely 	represented 	the
transaction as ‘open-end’ credit.” 	(ECF No. 65 at 18). 	Plaintiff disagrees and
argues 	Defendants 	misrepresented 	themselves 	as 	the 	creditor 	in 	the
transaction. (ECF No. 71 at 36–38).
Like the fraud claim elements discussed above, a fraudulent-inducement
claim requires all of those elements along with an allegation that the parties
entered into an otherwise enforceable agreement. 	See Williams v. Bryan of
Ladera, No. 4:22-cv-057, 2024 WL 5098506, at *5 (E.D. Tex. Nov. 20, 2024),
report and recommendation adopted, No. 4:22-cv-057, 2024 WL 5098049 (E.D.
Tex. Dec. 12, 2024) (citing Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001)).
Again, Plaintiff must satisfy the heightened pleading standard of Rule 9(b) by
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identifying (1) the time, place, and contents of the false representations; (2) the
person making the representations; and (3) what that person got in exchange
for them. See Williams, 112 F.3d at 177.
Similar to his common-law fraud claim, other than making conclusory
allegations, 	Plaintiff’s 	SAC 	does 	not 	identify 	any 	specific 	material
misrepresentation, allege the requisite knowledge of any defendant, or allege
that any defendant made a false representation with the intent that Plaintiff
should act on it. (See ECF No. 64 at 72). In his response to Defendants’ motion,
Plaintiff argues Defendants “fraudulently induced plaintiff into executing a
consumer credit contract by knowingly misrepresenting itself as the creditor
in the transaction.” 	(ECF No. 71 at 37 (emphasis in original)). 	Plaintiff also
restates 	some 	of the required allegations (id. 	at 38); however, 	generally
pleading the necessary elements does not satisfy the heightened requirements
of Rule 9. See Williams, 2024 WL 5098506, at *5.
As such, the Court finds Plaintiff fails to sufficiently allege a claim for
fraudulent inducement. 	See id. (“The complaint does not satisfy even the
general 	pleading 	requirements 	of 	Rule 	8, 	much 	less 	the 	heightened
requirements of Rule 9. The claim should be dismissed on that basis.”).
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h. Fraud by Nondisclosure
Defendants move to dismiss Plaintiff’s fraud by nondisclosure claim
because Plaintiff alleges no fiduciary duty requiring disclosure of who the
creditor was when the contract he signed identified the parties and their roles,
the contract expressly disclosed the nature of the credit, and Plaintiff alleges
no out-of-pocket or benefit-of-the-bargain loss causally linked to any specific
nondisclosure. (ECF No. 65 at 21–22). Plaintiff disagrees arguing Defendants
had a duty to disclose that “WLD” was not the actual creditor. (ECF No. 71 at
36–38).
“Fraud by nondisclosure is a subcategory of a fraud action in Texas which
is created by a duty to disclose between the parties.” 	Natour v. Bank of Am.,
N.A., No. 4:21-cv-331, 2021 WL 5239592, at *8 (E.D. Tex. Nov. 10, 2021).
“When there is a duty to disclose information and a party does not disclose it,
the nondisclosure may be as misleading as a positive misrepresentation of
fact.” 	Id. 	Fraud by nondisclosure requires proof of the same elements as a
fraud claim, except that the “first requirement of this test can be met if the
defendant concealed or failed to disclose a material fact when a duty to disclose
existed.” 	United Tchr. Assocs. Ins. Co. v. Union Lab. Life Ins. Co., 414 F.3d
558, 566 (5th Cir. 2005). As with Plaintiff’s other fraud-based claims, Rule 9(b)
applies to fraud by nondisclosure claims. 	N. Texas Opportunity Fund L.P. v.
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Hammerman & Gainer Int’l, Inc., 107 F. Supp. 3d 620, 632 (N.D. Tex. 2015)
(applying Rule 9(b) to a fraud by nondisclosure claim).
Here, Plaintiff’s SAC states Defendants “did not disclose” the creditor to
him. (ECF No. 64 at 72). In his response, Plaintiff explains this “nondisclosure
was material because it directly affected the Plaintiff’s understanding of the
terms of credit, the identity of the creditor, and the existence of a finance
charge associated with the purchase money loan.” (ECF No. 71 at 38).
As 	with 	Plaintiff’s 	other 	fraud-based 	claims, 	the 	Court 	finds 	that
Plaintiff’s general allegations do not state the “who, what, when, and where”
about Defendants’ alleged duty to disclose and failure to disclose with the
required specificity under Rule 9(b). See Natour, 2021 WL 5239592, at *8. As
such, the Court finds Plaintiff fails to sufficiently allege a claim for fraud by
nondisclosure.
i. 	Economic-Loss Rule
Defendants 	argue, 	to 	the 	extent 	Plaintiff 	pleads 	any 	tort 	beyond
fraudulent inducement, those tort claims are barred by the economic-loss rule.
(ECF No. 65 at 22). Plaintiff disagrees and argues this rule does not apply as
he alleges fraud and statutory consumer violations, which involve duties
independent of the contract. (ECF No. 71 at 38–40).
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“As a general rule, the failure to perform the terms of a contract is a
breach of contract, not a tort.” Curtis v. Cerner Corp., 621 B.R. 141, 171 (S.D.
Tex. 2020) (internal quotations omitted). Thus, “the economic loss rule under
Texas law generally precludes recovery in tort for economic losses resulting
from a party’s failure to perform under a contract when the harm consists only
of the economic loss of a contractual expectancy.” 	Id. 	(internal quotations
omitted). Here, Plaintiff’s fraud theories concern duties governed by the retail
installment contract. 	Such claims are purely economic and cannot be used to
circumvent contract remedies. See Jim Walter Homes, Inc. v. Reed, 711 S.W.2d
617, 618 (Tex. 1986) (“When the injury is only the economic loss to the subject
of a contract itself, the action sounds in contract alone.”); LAN/STV v. Martin
K. Eby Const. Co., Inc., 435 S.W.3d 234, 240 (Tex. 2014) (discussing how
economic-loss rule preserves the boundary between tort and contract law).
Plaintiff does not appear to identify any other independent tort claims in
his response to Defendants’ motion. 	(ECF No. 71 at 38–39). 	Further, while
courts should liberally construct the pleadings of a pro se plaintiff, courts are
not required to search for or try to create causes of actions for pro se plaintiffs.
See Washington v. Jackson State Univ., 532 F. Supp. 2d 804, 809 (S.D. Miss.
2006). As such, the Court declines to determine whether the economic loss rule
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applies to other potential tort claims that may be fabricated out of Plaintiff’s
SAC.
j. 	Breach of Contract
Defendants argue Plaintiff fails to (i) identify a specific contractual
provision Defendants breached, (ii) allege his own performance or satisfaction
of conditions precedent, (iii) allege facts showing any material breach by
Defendants, and (iv) plead damages with the required causation and certainty.
(ECF No. 65 at 25). Plaintiff disagrees. (ECF No. 71 at 26–28).
To assert a cause of action for breach of contract claim under Texas law,
a plaintiff must sufficiently allege facts to support: (1) a valid contract existed
between himself and the defendant; (2) he performed, tendered performance,
or was excused from doing so; (3) the defendant breached the terms of the
contract; and (4) he sustained damages as a result of the defendant’s breach.
USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 502 n.21 (Tex. 2018); see
ExxonMobil Glob. Services Co. v. Gensym Corp. & Versata Enters., Inc., 54 F.
Supp. 3d 707, 710–11 (W.D. Tex. 2014) (collecting cases).
Plaintiff’s SAC alleges Defendants breached the contract “via fraudulent
misrepresentation,” restating that Defendants were not the “creditor/lender”
of the contract. 	(ECF No. 64 at 61–63). 	However, Plaintiff’s response to
Defendants’ motion argues Defendants “materially breached the consumer
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credit contract by failing to perform its obligations as the creditor to extend a
case advance to Plaintiff’s open-end consumer credit account as consideration
for the execution of the instrument.” (ECF No. 71 at 27).
“It 	is 	well-settled 	that 	a 	plaintiff 	must 	allege 	which 	provision 	the
defendant breached in order to state a claim for breach of contract.” 	Baron v.
Baron, No. 3:16-cv-3465, 2018 WL 1156002, at *6 (N.D. Tex. Feb. 13, 2018),
report and recommendation adopted, No. 3:16-cv-3465, 2018 WL 1157947 (N.D.
Tex. Mar. 2, 2018) (collecting cases). 	Plaintiff must also provide more than a
conclusory allegation that he performed or tendered performance under the
agreement. 	See Mbakwe v. PNC Bank, N.A., No. 3:17-cv-856, 2017 WL
5956821, at *2 (N.D. Tex. Nov. 3, 2017), report and recommendation adopted
as modified, No. 3:17-cv-856, 2017 WL 5901000 (N.D. Tex. Nov. 30, 2017)
(finding a conclusory allegation that the plaintiffs fulfilled their obligations
was insufficient to support a claim for breach of contract).
Even under the most liberal construction, Plaintiff’s SAC fails to state a
breach of contract claim. 	See Penson v. Consumers Credit Union, No. 3:25-cv-
093, 	2025 	WL 	1737803, 	at 	*4 	(N.D. 	Tex. 	June 	6, 	2025), 	report 	and
recommendation adopted, No. 3:25-cv-093, 2025 WL 1737315 (N.D. Tex. June
23, 	2025) 	(“Plaintiff 	merely 	asserts 	that 	Defendant 	breached 	a 	contract
between the parties and caused financial damages of $15,500,00 by failing to
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‘remedy the breach or settle [the] invoice amount.’ . . . Otherwise, Plaintiff’s
petition lacks any facts regarding the alleged contract and breach and thus
fails to state a claim.”).
k. DTPA
Defendants argue Plaintiff’s DTPA claim should be dismissed because
Plaintiff pleads no specific misrepresentation, no reliance, and no producing
cause damages. 	(ECF No. 65 at 25–27). 	Plaintiff disagrees. 	(ECF No. 71 at
18–22).
To assert a cause of action for violation of the DTPA, a plaintiff must
sufficiently allege facts to support: (1) he is a consumer; (2) he engaged in at
least one of the laundry list items provided by Texas Business & Commerce
Code section 17.46(b); (3) he detrimentally relied on the false, misleading, or
deceptive act or practice; and (4) the false, misleading, or deceptive act or
practice was a producing cause of his injury. 	TEX . B US. & C OM. C ODE §
17.50(a)(1); see Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996);
B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st
Dist.] 2009). 	A consumer must establish the defendant violated a specific
provision of the DTPA, and the violation was a producing cause of the plaintiff’s
injury. TEX . B US. & C OM. C ODE § 17.50(a); Doe v. Boys Clubs of Greater Dallas,
Inc., 907 S.W.2d 472, 478 (Tex. 1995).
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Defendants 	first 	argue 	that 	Plaintiff’s 	DTPA 	claim 	fails 	as 	his
allegations “concern the extension and servicing of credit” and that “he pleads
no facts tying Defendants to the sale of goods or provisions of services.” (ECF
No. 65 at 26). 	Here, Plaintiff’s SAC alleges Defendants “engaged in ‘false,
misleading, or deceptive acts or practices’ by representing that credit had been
approved and would be available for Plaintiff’s use, when in fact Defendant
later denied access.” 	(ECF No. 64 at 68). 	The Court agrees with Defendants
that the Court cannot reasonably infer from these allegations that Plaintiff is
a consumer under the DTPA. See Hurd v. BAC Home Loans Servicing, LP, 880
F. Supp. 2d 747, 765 (N.D. Tex. 2012) (“Since the lending of money is not a good
or service, a borrower whose sole objective is to get a loan does not become a
consumer under the DTPA.”).
Further, Plaintiff’s allegations regarding Defendants’ “false, misleading,
or deceptive acts” fails to support a DTPA claim. 	In his SAC, Plaintiff refers
to § 17.46(b)(24). 	(ECF No. 64 at 5, 67). 	Section 17.46(b)(24) provides that
“failing to disclose information concerning goods or services which was known
at the time of the transaction if such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer
would not have entered had the information been disclosed” is a violation of
the DTPA. 	This section specifically requires a failure to disclose. 	See In re
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Lindeman Gordon, No. 19-40831-ELM, 2025 WL 2977072, at *9 (Bankr. N.D.
Tex. Oct. 21, 2025). “A mere non-disclosure is not enough to establish a claim,
the nondisclosure must be intended to induce the purchase.” Id. However, as
noted by Defendants, Plaintiff does not “describe[] what act was false, what
statement was misleading, or what conduct was deceptive.” 	(ECF No. 65 at
26). 	Plaintiff also “does not identify any specific representation, when it was
made, by whom, and how he relied on it to his detriment.” (Id.).
Plaintiff also refers to § 17.46(b)(2) in his SAC. 	(ECF No. 64 at 66).
Section 	17.46(b)(2) 	prohibits 	parties 	from 	causing 	confusion 	or
misunderstanding as to the source, sponsorship, approval, or certification of
goods or services. 	“[A] specific, identified misrepresentation is required to
assert” a § 17.46(b)(2) claim. 	Webb v. UnumProvident Corp., 507 F. Supp. 2d
668, 680 (W.D. Tex. 2005). 	Other than citing to § 17.46(b)(2) (ECF No. 64 at
66; ECF No. 71 at 20), Plaintiff fails to allege specific examples as to how
Defendants 	caused 	“confusion 	or 	misunderstanding 	as 	to 	the 	source,
sponsorship, approval, or certification of goods or services.” See Tex. v. Colony
Ridge, Inc., No. CV H-24-0941, 2024 WL 4553111, at *9 (S.D. Tex. Oct. 11,
2024) (finding plaintiff alleged sufficient facts to make out a claim under §
17.46(b)(2) 	where 	plaintiff 	provided 	specific 	examples 	wherein 	defendant
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misrepresented the source of real estate by listing fake lots for sale by fake
individuals).
Plaintiff also refers to § 17.46(b)(4) in his SAC. 	(ECF No. 64 at 66).
Section 17.46(b)(4) prohibits parties from using deceptive representations or
designations of geographic origin in connection with goods or services. Plaintiff
provides no other information as to this allegation other than a simple citation.
(ECF No. 64 at 66). 	Further, Plaintiff does not present arguments as to this
allegation in response to Defendants’ motion. (See ECF No. 71 at 19–22).
Plaintiff also refers to § 17.46(b)(12) in his SAC. 	(ECF No. 64 at 66).
Section 17.46(b)(12) prohibits parties from representing that an agreement
confers or involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law. 	Plaintiff’s SAC provides no other
information as to this allegation other than a simple citation. (ECF No. 64 at
66). 	Plaintiff generally cites § 17.46(b)(12) again in his Response. 	(ECF No.
71 at 21). Plaintiff also states, “the $1,200 down payment was illegal pursuant
to consumer credit transactions.” (Id. at 21). Even assuming Plaintiff intended
that statement to relate to his allegation of a § 17.46(b)(12) violation, it is
conclusory at best. See Cherry v. Liberty Ins. Corp., No. 6:17-cv-274, 2018 WL
1833252, at *6 (W.D. Tex. Feb. 1, 2018), report and recommendation adopted,
No. 6:17-cv-274, 2018 WL 4688786 (W.D. Tex. May 31, 2018).
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Plaintiff also refers to § 17.46(b)(14) in his SAC. 	(ECF No. 64 at 5).
Section 17.46(b)(14) prohibits parties from misrepresenting the authority of a
salesman, representative or agent to negotiate the final terms of a consumer
transaction. Plaintiff provides no other information as to this allegation other
than a simple citation. 	(See ECF No. 64 at 5). 	Further, Plaintiff does not
present arguments as to this allegation in response to Defendants’ motion.
(See ECF No. 71 at 19–22).
In 	response 	to 	Defendants’ 	motion, 	Plaintiff 	again 	argues 	that
Defendants failed to disclose the actual creditor. 	(See ECF No. 71 at 20–21).
However, for the first time, Plaintiff asserts Defendants have violated §
17.46(b)(5) and (7). (Id. at 22). However, it is “improper to consider allegations
made for the first time in a response to a motion to dismiss, as ‘[a] claim for
relief’ must be made through a pleading, F ED. R. C IV . P. 8(a), and a response to
a motion is not among the ‘pleadings [that] are allowed’ under the Federal
Rules of Civil Procedure, FED. R. C IV . P. 7(a).” 	Lamont v. Assaf, No. 3:21-cv-
1176, 	2023 	WL 	3511561, 	at 	*4 	(N.D. 	Tex. 	Apr. 	25, 	2023), 	report 	and
recommendation adopted, No. 3:21-cv-1176, 2023 WL 3514441 (N.D. Tex. May
17, 2023).
As such, the Court finds that Plaintiff fails to sufficiently plead a cause
of action for violation of the DTPA.
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IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Defendants’ Motion
to Dismiss (ECF No. 65) be GRANTED IN PART AND DENIED IN PART.
Specifically, the Court RECOMMENDS Defendants’ Motion to Dismiss (id.)
be GRANTED as to Plaintiff’s claims under the FCBA, ADA, DTPA, and
ECOA and Plaintiff’s state law claims for wrongful-repossession, breach of
contract, 	fraudulent 	misrepresentation, 	common 	fraud, 	fraud 	in 	the
inducement, 	and 	fraud 	by 	nondisclosure. 	The 	Court 	RECOMMENDS
Defendants’ Motion to Dismiss (id.) be DENIED as to Plaintiff’s TILA claim,
which is the only claim remaining.
Finally, the Court DENIES Plaintiff’s Motion for Judicial Notice (ECF
No. 75) and DENIES AS MOOT Defendants’ Opposed Motion to Continue
(ECF No. 86).
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
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SIGNED in Houston, Texas on April 24, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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