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Filing # 12923037 Electronically Filed 04/25/2014 09:54:55 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
AMERICAN EXPRESS BANK, FSB, A CASE NO.: 11-2013-CA-003407-0001-XX
Federal Savings Bank,
Plaintiff,
vs.
ADRIAN PETRILA , AKA TRAIAN A.
PETRILA AKA TRAIAN ADRIAN
PETRILA and PROSULTS REALTY
TAMPA LLC, a Limited Liability Company,
Defendants.
/
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, the Plaintiff, AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank
(hereinafter "Plaintiff"), by and through its undersigned attorneys and hereby files their Motion for
Summary Judgment pursuant to Florida Rule of Civil Procedure 1.510 and in support states the following:
A. Undisputed Factual Background
lL There has been an expiration of twenty (20) days from the commencement of the action.
2. Defendants entered into an Agreement with Plaintiff, AMERICAN EXPRESS BANK,
FSB, A Federal Savings Bank, at the Defendants’ specific request
3. Defendants filed a general response to the Complaint. The Answer is attached hereto as
Exhibit "A".
4. Defendants breached the terms and conditions of the Agreement by failing to repay the
sums due thereunder. The total sum that Defendants owe Plaintiff is $24,517.32, as evidenced by the
Affidavit of Indebtedness attached hereto as Exhibit "B".
13173273
Filed with Collier County Clerk of CourtsB. Legal Argument
I. Existence of a Contract and Contractual Obligations
5. Plaintiff contends that the full amount of the contract must be paid to Plaintiff pursuant to
the agreement, attached hereto within Exhibit "B" and that as a matter of law, Plaintiff is entitled to Entry
of Summary Final Judgment on the Complaint, as there are no genuine issues of any material fact.
6. In the case at bar, the Defendants' offer was accepted by Plaintiff when
Plaintiff provided Defendants with the credit card. Accordingly, as a matter of law, there is a binding
contract between Plaintiff and Defendants.
7. Plaintiff is entitled to the full amount due and owing on the contract pursuant to the
Terms and Conditions of the contract and the contractual obligations that flow therefrom.
TI. Determination of Liability is Appropriate by Summary Judgment
8. Clearly, there is a valid and enforceable contract between the Plaintiff and Defendants. A
party's liability under the contract is determinable by Summary Judgment. Florida case law holds that
"where determination of liability depends upon a written instrument of the parties thereto and the legal
effect to be drawn therefrom, the questions at issue is one of law only and ordinarily is determinable by
summary judgment." Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310 (Fla. 3d DCA 1970).
In Shafer the Court upheld the trial court's ruling that there was no genuine issue of material fact under
the contract in question. Likewise, in the case at bar, there are no genuine issues of a material fact as to
liability under the contract. Plaintiff provided Defendants with the Card and Defendants incurred charges
on the Card, the remaining principal of which is now due and owing, however, Defendants have failed
and refused to pay Plaintiff. Accordingly, the issue of liability is only one of law and the entry of
Summary Judgment is appropriate under the facts of this case.
9. Florida case law has further held that "where the determination of a party's liability
depends on written instruments of parties and their legal effect, the question becomes one of law only and
is determinable by summary judgment". Castle Construction Company v. Huttig Sash & Door Company,
425 So.2d 573,575 (Fla. 2d DCA 1982). In Castle, the Court agreed and affirmed the Trial Court's
summary judgment ruling on the issue of liability pursuant to a contract.
1317327310. In the case at bar, the parties' liability (Plaintiff and Defendants) depends on the written
contract and their legal effect. Therefore, the question of Defendants’ liability becomes one of law only
and is determinable by summary judgment. Accordingly, Plaintiff is entitled to and respectfully requests
that this Court enter Summary Judgment in favor of Plaintiff and against Defendant for the amount of the
unpaid portion of the contract. Florida case law supports and upholds the notion that this Court may enter
the requested relief.
C. Summary Judgment Standard
11. Florida Rule of Civil Procedure 1.510 (c), states "the judgment sought shall be rendered
JSorthwith if the pleadings, depositions, answer to interrogatories, and admissions on file together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510 (c).
12. Florida case law holds that summary judgment is only appropriate when the movant has
shown conclusively that no genuine issues of material facts remain; every inference is drawn in favor of
the party against whom summary judgment is sought. Herig v. Akerman, Senterfitt & Edison, 741 So.2d
591 (Fla, 1* DCA 1999),
13. The movant has shown conclusively that no genuine issues of material fact remain. After
drawing every inference in favor of the Defendants, summary judgment is still proper as there are no
genuine issues of material fact.
14, The pleadings, answer to Complaint, on file together with the affidavit show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law. Accordingly, it is proper and the Plaintiff requests that this Court enter Summary Judgment in favor
of Plaintiff and against Defendants.
D. Conclusion
15, It is undisputed that Defendants entered into an Agreement with Plaintiff AMERICAN
EXPRESS BANK, FSB, A Federal Savings Bank.
16. It is undisputed that Plaintiff provided Defendants with the credit card at issue.
1317327317. It is undisputed that Defendants have failed to pay Plaintiff the remaining balance due of
$24,517.32 or any portion thereof.
18, It is undisputed that pursuant to Florida law, that where the determination of a party's
liability depends on a written instrument of the parties and their legal effect, the questions become one of
law only and are determinable by summary judgment.
19. Plaintiff therefore respectfully requests that this Court enter Summary Final Judgment in
favor of Plaintiff and against Defendants, as there are no genuine issues of material facts that would
preclude such an entry.
WHEREFORE, Plaintiff, AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank,
respectfully requests that this Court enter Summary Judgment in favor of Plaintiff and against Defendants
for the amount of $24,517.32, reserving jurisdiction to award costs and such other and further relief as
this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email to
Defendants' Attorney, Alan Borden at aborden@lawborden.com, this 2 _ day of AY oI | , 2014.
S/K, PAULETTE PERRYMAN, ESQ
Cordoba & Associates, P.A
Attomeys for Plaintiff
1551 Sawgrass Corporate Parkway
Suite 110
Sunrise FL, 33323
Telephone: 754-300-1058
Facsimile: 954-846-2224
Florida Bar No. 777811
Primary E-mail: cordoba@cordobalaw.com
13173273EXIHIBIT “A”Filing # 11647541 Electronically Filed 03/24/2014 08:58:06 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
AMERICAN EXPRESS BANK FSB
Plaintiff(s),
CASE NO: 11-2013-CA-003407-0001-XX
vs.
Arian Petrila and
PROSULTS REALTY TAMPA LLC,
A Limited Liability Company,
Defendant(s).
/
ANSWER
COMES NOW, Defendant, Adrian Petrila, by and through the undersigned
counsel and presents this Answer to Plaintiff, American Express Bank Fsb and states:
Jurisdiction and Parties
1) Defendant admits.
2) Defendant admits.
3) No answer required.
4) Defendant denies and requires strict proof thereon.
5) Defendant denies. Defendant does not and has not resided in Collier
County since August 2013.
General Allegations
6) Defendant denies and requires strict proof thereon.
7) Defendant denies and requires strict proof thereon.
8) Defendant denies and requires strict proof thereon.
9) Defendant denies and requires strict proof thereon.
10) Defendant denies and requires strict proof thereon.
Breach of Contract
Filed with Collier County Clerk of Courts11) Defendant denies and requires strict proof thereon.
12) Defendant denies and requires strict proof thereon.
13) Defendant denies and requires strict proof thereon.
14) Defendant denies and requires strict proof thereon.
15) Defendant denies and requires strict proof thereon.
16) Defendant denies and requires strict proof thereon.
Count II - Quantum Meruit
17) Defendant denies and requires strict proof thereon.
18) Defendant denies and requires strict proof thereon.
19) Defendant denies and requires strict proof thereon.
20) Defendant denies and requires strict proof thereon.
WHEREFORE, Defendant requests a hearing on all matters before the court
on this the 24th day of March, 2014.
Alan Borden, Esq.
Borden Law, P.A,
3001 N. Rocky Point Dr. East
Ste. 200
Tampa, Florida 33607
CERTIFICATE OF SERVICE
I HEREBY CERTIIFY that a true and correct copy of the foregoing has been furnished by
USS. mail on this 24" day of March, 2014, to the following:
Erik Zogg, Esq.
Cordoba & Associates, P.A.
1551 Sawgrass Corporate Parkway, Ste. 110
Sunrise, Fl 33323
cordoba@cordobalaw.com tie ws. f
Alan Borden, Esq.
Borden Law, P.A.
3001 N. Rocky Point Dr. East
Ste. 200
Tampa, Florida 33607
aborden@lawborden.comEXIHIBIT “B”ae AFFIDAVIT OF PLAINTIFF
eh
prorat
I, declare and state as follows:
wet
1 1am an Assistant Custodian of Records for American Express Bank, FSB ("Plaintiff"), a federal
savings bank organized under the laws of the United States., ("American Express" hereinafter), with its headquarters
located at 4315 S. 2700 West, Salt Lake City, Utah 84184.
2. In my capacity as Assistant Custodian of Records for American Express, I am familiar with the
ongoing credit card business operations and practices of American Express, particularly with respect to its
recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by American
Express. I have access to the business records relating to credit card accounts issued by American Express, including,
in particular, the records of cardmember accounts and the applicable card agreements. I have personal knowledge of
American Express' regular practices and procedures with respect to: (a) the transmittal of credit card account
agreements, notices, billing statements, and other documents; and (b) quality assurance controls utilized to ensure that
such transmittals are properly made. 1 also have access to and am generally familiar with the cardmember account
records created and maintained by American Express. Except where based on my review of records and documents
regularly maintained in the ordinary course of business, all of the matters set forth herein are within my personal
knowledge and, if called as a witness, 1 could competently testify thereto.
3. The billing statements and other documents referred to herein were created at or near either the time
of the transactions or the time the original statements were made and have been kept by American Express in the
ordinary course of business. In my experience, the systems used by American Express to create and maintain data for
and to produce billing statements and other documents are reliable and kept in a good state of tepair, and American
Express' procedures for inserting transaction and other data into the systems have built-in safeguards to ensure accuracy
and identify errors. Duplicate statements can be obtained only by authorized American Express personnel or
authorized agents pursuant to proper procedures, which must be followed in order to obtain the statements. The other
records referred to herein were created and kept in the ordinary course of business by American Express and were
created at or near the time of the occurrence of the matters set forth by those records and/or were created based upon
information transmitted by a person with knowledge of the matters set forth in those records. It is the regular business
practice of American Express to make and keep said records. The statements contained in this affidavit are made based
on my personal knowledge of the business records practices of American Express.
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4, All American Express credit card accounts are governed by a written agreement (the "Cardmember
Agreement") setting forth the terms and conditions of the account. When an American Express account is opened, the
Cardmember Agreement is provided to the cardmember. The Cardmember Agreement provides that use of the card
constitutes acceptance of the agreement.
5. All American Express Cardmember Agreements expressly provide that American Express may
change the terms of the Cardmember Agreement from time to time. American Express advises current cardholders of
changes through change-in-terms notices, which are either mailed to American Express cardmembers in separate
mailings or included with or printed on the cardmembers' monthly billing statements.
6. American Express maintains computerized records of the amounts due and owing to American
Express for any transactions that occur when an individual uses an American Express credit card. The computerized
records reflect all debits and credits in connection with the use of an American Express credit card. American Express
sends or otherwise makes available monthly billing statements to cardmembers who carry a balance or are otherwise
required to receive a monthly statement.
7 Ihave personally reviewed American Express' records concerning defendant ADRIAN PETRILA
and REALTY DIRECT ("Defendant"), Those records reflect that Defendant opened an American Express credit card
account, the current account number ending in 01006 (the "Account") in June 2011. Consistent with American
Express’ standard business practices, American Express' records reflect that it mailed Defendant's credit card, together
with a copy of Defendant's Cardmember Agreement, to Defendant when American Express opened Defendant's
Account. Copies of each of these Cardmember Agreements were transmitted to Defendant as they were periodically
revised or updated. A true and correct copy of the Cardmember Agreement in effect at the time of cancellation of the
Account is annexed hereto as Exhibit A.
8. American Express' records further reflect that Defendant used the Account to pay for various goods
and services and/or obtain cash advances. Consistent with American Express’ standard business practices, American
Express' records reflect that it transmitted monthly billing statements to Defendant. There is no record of Defendant
ever asserting a valid unresolved objection to the balance shown as due and owing on the monthly statements provided
to Defendant. '
9 Pursuant to American Express' records, under the terms of the Cardmember Agreement, Defendant
defaulted in making the payments due on the Account. American Express' records reflect that American Express closed
FO_FSB_001Defendant's Account. After giving Defendant credit for all Payments made, if any, the amount justly due and owing as
of 4/2/2014 is $24,517.32. True and correct copies of the monthly Account Statements for the defendant's Account for
the period 7/26/2013 is/are annexed hereto as Exhibit B.
10. Defendant's Account has not been sold or assigned by American Express, the original creditor of the
account,
11. The information set forth herein is true and correct to the best of the undersigned's knowledge,
information and belief and, if called as a witness, I could competently testify thereto.
12. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the
military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an infant,
incompetent, under mental defect or infirm,
I declare under the penalty of perjury under the laws of the forum state that the foregoing is true and correct to
the best of my knowledge, information and belief.
Dated: APR O g 2014 By: a=
stodian
Title: Assistant Cust i
ren E Donica
Dated; APRO9 201 By: Ka
KAREN E. DONICA
af Commission # 1951946
gh Si) Notary Public - California 2
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“< Ventura County
1 My Comm. Expires Oct 9, 2015 f
FO_FSB_001Department of Defense Manpower Data Center Results as of: Apr-25-2014 06:43:18 AM
ScRAa0
Status Report
Pursuant to Servicemembers Civil Relief Act
Last Name: PETRILA
First Name: ADRIAN
Middle Name:
Active Duty Status As Of: Apr-25-2014
Z ‘On Active Duty On Active Duty Status Dato
Active Duty Stait Date ‘Aetive Outy End Date = : te
& :Sorvice Component 2
NA NA NA
: wi ‘Loft Active Duty Within 367 Oy Soy
‘Activa Duly Siar Date! iis iy Active Duty End Date’ Service Component:
NA ey NA NA
“This response reflects whi the individual loft active city status within 367 days preceding hg Active Duty Slatus Date
tt i
ou The Member or His/Mer Unit Wes Notified of a Future Call
Order Notification Start Date Order Notification End Date
NA MA - SS
This response reflects whether the individual or hisMner uit has received early Rotiication lo report for active duty
Re
6S
Upon searching the data banks of the Department of Defense Manpower Data Centar, based on the information that you provided, the above isthe status of
the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and
Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
Moy Yo. any Dn
Mary M, Snavely-Dixon, Director
Department of Defense - Manpower Data Center
4800 Mark Center Drive, Suite 04625
Arlington, VA 22350The Defense Manpower Data Center (OMODC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility
Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems.
The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 501 et seq, as amended) (SCRA) (formerly known as
the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the
individual is currently on active duty" responses, and has experienced only a small error rate, in the event the individual referenced above, or any family
member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the
protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the
“defenselink mil" URL: http:/www.defenselink.milfaq/pis/PCO9SLOR. html. If you have evidence the person was on active duty for the active duty status
date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. § 521(c).
This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active
Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active
duty on the Active Duty Status Date.
More information on “Active Duty Status"
Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less
than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service
authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the
President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the
unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve
Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S.
Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps).
Coverage Under the SCRA is Broader in Some Cases
Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be
reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods.
Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1).
Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website
certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service.
Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not
actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA
extend beyond the last dates of active duty.
‘Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA
are protected
WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing
erroneous information will cause an erroneous certificate to be provided.
Certificate ID: W9E2E1F2Q0FFS10EXIHIBIT “A”AMERICAN]
ESS
Cardmember Agreement: Part 1 of 2 As of: 06/26/2011
Business Gold Rewards Card Company Name: REALTY DIRECT
Issuer: American Express Bank, FSB Cardmember Name: Adrian Petrila
Account Ending In: 01006
Fees Table
Annual Membership Fee $0 for the first year, then $125
Transaction Fees
+ Foreign Transaction 2.7% of each transaction after conversion to US dollars.
Penalty Fees
+ Late Payment $35 or 2.99% of the past due amount, whichever is greater.
* Returned Payment
How we calculate interest: We use the Average Daily Balance method (including new transactions). See the
How we calculate interest section in Part 2.
(CMAEUAAO00001 11 Page 1 of 9How Rates and Fees Work
RAMEN eae
eee AU eee ee ee Treen
When the penalty The Penalty APR applies to Pay Over Time balances if,
APR will apply * you do not pay at least the Minimum Payment Due by the Closing Date of the billing period in
which its due 3 times in 12 billing periods,
* you do not pay at least the Minimum Payment Due by the Closing Date of the billing period in
which it is due and you still do not Pay it by the Closing Date of the next billing period, or
[+ your payment is returned by your bank.
How long the penalty | The penalty APR will apply until after you have made timely Payments, with no returned payments,
APR will apply for 12 billing periods in a row.
Annual Membership | This fee is on the Rates and Fees Table on Page 1 of Part 1. We will charge $45 for each additional
card,
Late Payment $35 (lowa $15) if you do not pay the Amount Due on a billing statement before the 10th day after
the next Closing Date.
Also, if you do not pay that Amount Due by the following Closing Date, we may charge you an
additional fee in that same billing period of the greater of $35 or 2.99% of any amount past due
(lowa $15).
For each following Closing Date that an amount Past due remains unpaid, we may charge a fee of
the greater of $35 or 2.99% of any amount past due (lowa $15).
Payi
ing late may also result in a Penalty APR. See When the penalty APR will apply above.
Returned Payment
$38
may
if your payment is returned unpaid the first time we Present it to your bank. A returned paymerit
also result in a Penalty APR. See When the penalty APR will apply above.
Returned Check
$38 if you use your card to cash a check at one of our approved locations and the check is retumed
| unpaid. We will also charge you the unpaid amount.
Foreign Transaction
2.7% of the converted U.S. dollar amount. This fee Is a finance charge. See Part 2 for Converting
charges made in a foreign currency.
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
‘CMAEUAAQ0000111
Page 2 of 9AMERICAN)
FESS
Cardmember Agreement: Part 2 of 2 cD 27743
How your American Express Account Works
Introduction
About your This document together with Part 1 make up the When you or an Additional Cardmember, as defined
Cardmember Cardmember Agreement (Agreement) for the Account below, use the Account (or sign or keep a card), you and
Agreement identified on page 1 of Part 1. Any supplements or the Additional Cardmember agree to the terms of the
amendments are also part of the Agreement. Agreement.
Words we use in
We, us, and ourmean the issuer shown on page 1 of Card means any card or other device that we issue to
the Agreement Part 1. Except as provided below, Basic Cardmember _access the Account. A charge is any amount added to the
means the person who applied for this Account or to Account, such as purchases, fees and interest charges. A
whom we address billing statements. Company means purchase is a charge for goods or services.
the business for which the Account is established, You os
. To pay by a certain date means to send your Payment so
Corvany You aye fiat eeceecane te bound that we receive it and credit it to your Account by that date
“ * * \be ts ).
by the terms ofits Agree eat (see About your payments in Part 2)
Additional At your request, we may issue cards to Additional You must tell Additional Cardmembers that:
Cardmembers Cardmembers. They do not have accounts with us but * we may obtain, provide and use information about
they can use your Account subject to the terms of this them.
Agreement. + their use of the Account is subject to this Agreement.
You are responsible for all use of the Account by You authorize us to give Additional Cardmembers
‘Additional Cardmembers and anyone they allow to use information about the Account and to discuss it with them,
the Account. You must pay for all charges they make. iy you want to cancel an Additional Cardmember's right to
You must share this agreement with all Additional d it
Cardmembers, ener Account (and cancel their card) you must
Replacement Basic
Cardmember
‘You must tell us f the Basic Cardmember is no longer obligations and liabilities of the Basic Cardmember under
an employee or officer of the Company or does not want this Agreement, as of the date that stich person replaces
to be the Basic Cardmember. In that case, you must the Basic Cardmember. That person is ‘Subject to our
either close the Account, or propose another person to —_ approval.
Feplace the Basic Cardmember. You agree that the Basic Cardmember remains the Basic
'f you propose another person to replace the Basic Cardmember until we approve a replacement or the
Cardmember, that person must agree to assume the Account is closed.
About using your card
Using the card You may use the card to make purchases. You may also Yo or any Additional Cardmembers, may arrange for
use the card at an ATM to get cash from a checking certain merchants to charge the Account at regular
account you designate. intervals. We may (but are not required to) tell these
Each Cardmember acknowledges and agrees that cards Merchants about the Account status or changes to your
intend tt , card number or expiration date. You must notify the
or businoas poreecen” for the Company's commercial merchants directly if you want them to stop charging the
Account.
We decide whether to approve a charge based on how a
you spend and pay on the Account ans other accounts Keep your card safe and don't let anyone else use it. If
you have with us and our affiliates. We also consider ‘YOU card is lost or stolen or your Account is being used
your credit history and your personal resources that we _Without your permission, contact us right away. You may
inow about, ot use your Account for illegal activities.
Promise to pay
You promise to pay ail charges, including: * charges that Additional Cardmembers make or permit
* charges you make, even if you do not present your others to make,
Card or sign for the transaction, Additional Card members agree to be personally liable for
* charges that other people make, whether or not you or ha i
ges made using their card. We may seek payment
an Additional Cardmember intend to let them use the from aren gon charges made on thelr oard if neither the
Account, subject to applicable law, and Company nor the Basic Cardmember pay us.
Declined
transactions
We may decline to authorize a charge. Reasons wo may We are not responsible for any losses you incur if we do
do this include suspected fraud and our assessment of __ not authorize charge. And we are not responsible if any
your creditworthiness. This may occur even if your merchant refuses to accept the card,
Account is not in default.
CMAEUACM0000107
Page 3 of 9About Pay Over We may add features to the Account that allow you to than a certain dollar amount, We will tell you this amount
Time features ay certain charges over time. These features include when you enroll, and it is subject to change. We will tell
Sign & Travel® and the Extended Payment Option. you if we change it. Certain charges are not eligible, such
{fyou enroll in Sign & Travel, we will automatically place 28 Cash and similar transactions,
eligible travel-related charges into a Pay Over Time We will not place any charge into a Pay Over Tima
balance. Some examples are airline and cruise ship balance if it causes the total of your Pay Over Time
tickets, hotels, car rentals and charges made outside the balances to go over $20,000. We wil tell you if we
US. change that amount. You must pay in full all charges that
, i laced into a Pay Over Time balance upon receipt
If you enroll in the Extended Payment Option, we will are not pl e
automatically place all eligible charges into a Pay Over Of ihe biting Statement. We may change which charges
Time balance. A charge Is eligible if it equals or is more __ 4 eligible to be placed into a Pay Over Time balance.
About your payments
When you must pay Payment of the New Balance is due upon recei ipt of your Each statement also shows a Closing Date. The Closing
statement. If a statement includes a Pay Over Time Date is the last day of the billing period covered by the
balance, it will show a Minimum Payment Due. In this statement. Each Closing Date is about 30 days after the
case, you must pay at least the Minimum Payment Due _ previous statement's Closing Date.
by the Payment Due Date. Each statement also states
the time and manner by which you must make your
Payment for it to be credited as of the same day itis
received.
How to make Make payments to us in U.S. dollars with: statement. If we receive it after that time, we will credit the
payments * a single check drawn on a U.S. bank, or payment on the day after we receive it.
* a single negotiable instrument clearable through the If your payment does not meet the above requirements,
U.S. banking system, for example a money order, or [YOU n
" may be a delay in crediting the Account, This may
* an tlecironie payment that can be cleared through the reeuit in ite fees and addionar interes charges (see
U.S. banking system. How Rates and Fees Work on page 2 of Part 1).
When making a payment by mail: If we decide to accept a payment made in a foreign
+ make a separate payment for each Account, currency, we will choses tate to convert your ayeont
* mall your payment to the address shown on the into U.S. dollars, unless the law requires us to use a
Payment coupon on the billing statement, and particular rate.
* write the Account number on your check or negotiable .
instrument and include the payment coupon. lf we process a tate payment, a partial payment, or a
Payment marked with any restrictive language, that will
'¥your payment meets the above requirements, we will fave no efect on our rights and will not change this
credit it to the Account as of the day we receive it, as
long as wa receive it by the time disclosed in the biling “a"eement.
How we apply {fa statement includes a Pay Over Time balance, it will After the Minimum Payment Due has been paid, we apply
payments show a Minimum Payment Due. The Minimum Payment — payments to the remaining Pay Over Time balances.
and credits Due is the Pay In Full New Balance plus the Pay Over When we do this, we apply payments first to the balance
Time Minimum Due. with the lowest interest rate and then to balances with
Ifyou have a Pay Over Time balance, we generally higher interest rates.
apply payments up to the Minimum Payment In most cases, we apply a credit to the same balance as
Due first to the Pay Over Time Minimum Due and then the related charge. We may apply payments and credits
to the Pay In Full New Balance. within balances, and among balances with the same in:
terest rate, in any order we choose.
(CMAEUACM0000107 Page 4 of 9AMERICAN
Express
About your Minimum Payment Due
Howwe calculate — The Minimum Payment Due is the Pay In Full amount plus any Pay Over Time Mi
your Minimum To calculate the Pay Over Time Minimum Due for each
Payment Due statement, we start with the highest of the following
three amounts:
(1) 1/36th of the Pay Over Time New Balance; or
(2) interest charged on the statement plus 1% of the
Pay Over Time New Balance (excluding interest on
the statement), not to exceed 4% of the Pay Over
Time New Balance; or
(3) $20.
Then we round to the nearest dollar. After that, we add
any Pay Over Time amount past due,
However, your Pay Over Time Minimum Due will not
exceed your Pay Over Time New Balance.
Adjusting your Pay If you regularly pay more than the Minimum Payment Due described above, we may adjust the Pay Over Time
Over Time Minimum Minimum Due in future billing periods. This may let you make a smaller minimum Payment from time to time. But if
Due you then do not regularly pay more than the Minimum Payment Due described above, we will ‘stop making the
adjustment and return to the formula above. If we start ‘or stop making the adjustment, we will do so for at least six
billing periods in a row.
To adjust the Pay Over Time Minimum Due, we will not add 1% of the Pay Over Time New Balance in (2). Then, if
(2) s the highest (but less than 4% of the Pay Over Time New Balance), we will add $15.
‘We will do this if over six billing periods the sum of. payments credited to your Pay Over Time balance is more tharr
the sum of the Pay Over Time Minimum Dues (not adjusted, except any Pay Over Time amount past due is
counted only in the first of those six periods). We will also make the adjustment if over six billing periods the sum of
the Pay Over Time Minimum Dues (not adjusted) is not more than $120 and equals the sum of payments credited
{0 your Pay Over Time balance. However, we will not make the adjustment if the sum of the Pay Over Time
Minimum Dues is zero and we did not. adjust the Pay Over Time Minimum Due the last time it was not zero.
About interest charges
When we charge We charge interest on charges that are added to a Pay Over Time balance beginning on the transaction date.
interest However, you can avoid paying interest as follows.
If you pay the Account Total New Balance on a Also, we will not charge interest shown on a statement if
statement by the Closing Date shown on the next the Account Total Previous Balance on that statement is
statement, then on that next statement we will not zero or a credit balance.
charge interest.
CMAEUACM0000107 Page 5 of 9How we calculate We calculate interest for a billing period by first calculating Interest on each balance within each feature, Balances
interest
within each feature such as Sign & Travel and Extended Payment Option may have different interest rates.
We use the Average Dally Balance method (including Dally Balance
rew transactions) to calculate interest charges for each For each day a DPR is in effect, we calculate the daily
balance. The total interest charged for a billing period is
the sum of the interest charged on each balance.
Interest
The interest charged for a balance in a billing period,
‘except for variations caused by rounding, equals:
+ Average Daily Balance (ADB) x
* Daily Periodic Rate (DPR) x
* number of days the DPR was in effect.
ADB
To get the ADB for a balance, we add up its daily
balances. Then we divide the result by the number of
days the DPR for that balance was in effect. if the daily
balance is negative, we treat it as zero.
DPR
balance by:
* taking the beginning balance for the day,
+ adding any new charges,
* subtracting any payments or credits: and
+ making any appropriate adjustments.
We add a new charge to a daily balance as of its
transaction date.
Beginning balance
For the first day of a billing period, the beginning balance
is the ending balance for the pricr billing period, including
Unpaid interest. For the rest of the billing period, the
beginning balance is the previous day's daily balance plus
an amount of interest equal to the previous day sdaily
balance muttiplied by the DPR for that balance. This
method of calculating the beginning balance results in
daily compounding of interest.
When an interest rate changes, the new DPR may come
into effect during not just at the beginning of the billing
Period. When this happens, we will create a new balance
and apply the new DPR to it. To get the beginning balance
on the first day for this new balance, we multiply the
Previous day's daily balance by the old DPR and add the
result to that day's daily balance.
Other methods
To calculate the ADB and interest charges, we may use
other formulas or methods that produce equivalent results.
Also, we may choose not to charge interest on certain
types of charges.
We use the Prime Rate from the Money Rates section
(or successor section) of The Wall Street Journal. The
Prime Rate for each billing period is the Prime Rate
published in The Wall Street Journal 2 days before the
Closing Date of the billing period.
Determining the
Prime Rate
The Wall Street Journal may not publish the Prime Rate
on that day. If it does not, we will use the Prime Rate
from the previous day it was published. If The Wall
Street Journal is no longer published, we may
use the Prime Rate from any other newspaper of general
circulation in New York, New York. Or we may choose to
use a similar published rate.
If the Prime Rate increases, variable APRs (and
corresponding DPRs) will increase. in that case, you may
pay more interest and may have a higher Minimum
Payment Due. When the Prime Rate changes, the
resulting changes to variable APRs take effect as of the
first day of the billing period.
Other important information
Changing the We may change the terms of, or add new terms to, this This written Agreement is a final expression of the
Agreement. We may apply any changed or new terms
to any existing and future balances on the Account,
subject to applicable law.
Agreement
agreement governing the Account. The written Agreement
may not be contradicted by any alleged oral agreement.
Converting charges If you make a charge in a foreign currency, we will
government agency or the highest interbank rate we
made inaforelgn convert it into U.S. dollars on the date we or our identify from customary banking sources on the
currency agents process it. Untess a particular rate is required conversion date or the prior business day. This rate may
by law, we will choose a conversion rate that is Giffer from rates that are in effect on the date of your
acceptable to us for that data, The rate we use isno charge. We wil bill charges converted by establishments
more than the highest official rate published by a (such as airlines) at the rates they use.
Changing your You must notify us immediately if you change the: Ifyou have more than one account, you need to Notify us
* mailing address to which we send billing statements
* email address to which we send notice that the
billing statement is available online.
+ telephone and fax numbers.
+ legal entity of the Company.
+ tax identification number.
billing address
separately for each account.
We may update your billing address if we receive
information that it has changed or is incorrect.
CMAEUACM0000107 Page 6 of 9AMERICA
expacss
Closing your
You may instruct us to close the Account by callingus The Basic Cardmember and the Company remain jointly
Account or writing to us. The Basic Cardmember agrees to and severally liable for all Charges made on the Account.
inform the Company prior to instructing us to do so.
Cancelling or ‘We may: We may do any of these things at our discretion, even if
suspending * cancel whe A Account. o-ch you pay on time and the Account is not in default.
* suspend the ability to make charges. i
your Account + cancel or suspend any feature on the Account, If the Account is cancelled, you must destroy all cards.
* notify merchants that the Account has been We may agree to reinstate the Account after a
cancelled or suspended. cancellation. If we do this, we may:
* reinstate any cards, including additional cards.
we do ary or hese you rina still pay ds for all * charge you any applicable fees, including annual fees.
arges under the terms of this Agreement, + charge you a fee for reinstating the Account.
About default We may consider your Account to be in default if If we consider the Account in default, we may:
+ you violate a provision of this Agreement, * suspend the ability to make charges.
* you give us false information, + cancel or suspend any feature on the Account.
* you file for bankruptcy, * cancel the Account and require you to Pay the Account
* you default under another agreement you have with balance immediately.
us or an affiliate, * require you to pay more than your Minimum. Payment
* you become incapacitated or die, or Due immediately.
* We believe you are unable or unwilling to Pay your
debts when due,
Collection costs
You agree to pay all reasonable costs, including attorneys' fees, that we incur to collect amounts you owe or to
Protect ourselves from loss, harm or risk relating to default.
Credit reports You agree that we may obtain credit reports about you credit reporting agency if you fail to comply with any term
(and, subject to applicable law, any Additional of this Agreement. This may have a negative impact on
Cardmembers), investigate your and any Additional your or any Additional Cardmember's credit report.
Cardmembers' ability to pay, and obtain information t . .
F you believe information we have given to a credit
about you and any Aational Cardmembers from other reporting agency is incorrect, write to us at: American
nomen And you agree that we benieg plicable law, _£%?f288 Credit Bureau Unit, P.O. Box 981837, El Paso,
rmation for any purposes, subject to applicable law. sy’ 7a098 15ay. When you write to us, tell us the specific
‘You agree that we may give information about the information you believe is incorrect.
Account to credit reporting agencies. We may tell a
Sending you We mail you notices through the U.S. mail, postage prepaid, and address them to you at the latest billing address
notices ‘shown on our records. Any notice that we send you this way is deemed to be given when deposited in the U.S.
mail. Additionally, we may mail notices and information to Additional Cardmembers at their request.
We may contact From time to time, we may contact you and any this to ensure the quality of customer service or when it is
you Additional Cardmembers about topics ranging from required by law.
servicing to marketing offers to collecting amounts you
‘owe. We may monitar and record phone calls between
you (or any Additional Cardmembers) and us. We do
You can choose to not receive marketing offers from us.
To do this, call us at 1-800-297-8378 or log on to
www.americanexpress.com/communications
About insurance
‘We or our affiliates may tell you about insurance and Company or another affiliate is the insurer or reinsurer.
products non-insurance products, services or features that may Compensation may influence what Products and providers
have a fee. One of our affiliates may acton behalf ofa —_we or our affiliates tell you about.
provider of these products. The affiliate may be We may i i “ “,
i y share information about you with our affiliates so
compensated for this. The insurance Products are not they can identify products that may interest you. We may
offered or sold by us or on our behalf. Our affiliates be compensated for this information.
may get additional compensation when Amex .
Assurance
How we handle When you pay us by check, you authorize us to If we do this, your payment may be deducted from your
electronic debits electronically deduct the amount from your bank or bank or other asset account on the same day we receive
from your checking “ther asset account. your check. Also, you will not receive that cancelled check
account We may process the check electronically by with your bank or asset account billing statement.
transmitting to your financial institution: If we cannot collect the funds electronically, we may issue
* the amount, a draft against your bank or other asset account for the
* the routing number, amount of the check,
' + the account number, and
* the check serial number.
ExpressPay Cards issued on the Account may be equipped with ExpressPay. ExpressPay enables you to make charges without
having the card swiped or imprinted. You can call us to deactivate ExpressPay at any time. Also, we may
deactivate ExpressPay at any time.
CMAEUACM0000107 Page 7 of 9Privacy Act of 1974 Some federal agencies may accept the card under autho!
rity of statute, When you or Additional Cardmembers make
notice charges at these agencies, we collect certain charge information. That information may be put to routine uses such
as processing, billing and collections. It may also be ‘aggregated for reporting, analysis and marketing use. Other
routine uses by agencies may be published in the Federal Register.
Change the benefits We have the right to add, modify or delete any benefit, service, or feature of the Account at our discretion.
Assigning the We may sell, transfer or assign this Agreement and the Account. We May do so at any time without notifying you.
Agreement You may not sell, assign or transfer the Account or any of your obligations under this Agreement.
Assigning claims _If you dispute a charge with a merchant, we may credit the Account for all or part of the disputed charge. If we do
S0, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You and any
Additional Cardmembers agree not to pursue any claim against the merchant for the credited amount. And you and
any Additional Cardmembers must cooperate with us if we decide to do so.
We do not waive We may choose to delay enforcing or to not exercise rights under this Agreement. If we do this, we do not waive
our rights ur rights to exercise or enforce them on any other occasion.
Governing law
Utah law and federal law govern this Agreement and the Account. They govern without regard to internal principles
of conflicts of law. We are located in Utah. We hold the Account in Utah. We entered into this Agreement with you
in Utah.
Arbitration
‘This Arbitration provision sets forth the
circumstances and procedures under which
claims may be arbitrated instead of litigated in
court.
Definitions
As used in this Arbitration provision, the term
claim means any claim, dispute or
controversy between you and us arising from
or relating to your Account, this Agreement,
the Electronic Funds Transfer Services
Agreement, and any other related or prior
agreement that you may have had with us, or
the relationships resulting from any of the
above agreements, except for the validity,
enforceability or scope of this Arbitration
provision. For purposes of this Arbitration
provision, you and us also includes any
corporate parent, or wholly or majority owned
subsidiaries, affiliates, any licensees,
predecessors, successors, assigns, any
purchaser of any accounts, all agents,
employees, directors and representatives of
any of the foregoing, and other persons
referred to below in the definition of claims.
Claim includes claims of every kind and
nature, including but not limited to, initial
claims, counterclaims, cross-claims and third-
party claims and claims based upon contract,
tort, fraud and other intentional torts, statutes,
regulations, common law and equity. Claim
also includes claims by or against any third
party using or providing any product, service
or benefit in connection with any account
(including, but not limited to, credit bureaus,
third parties who accept the card, third parties
who use, provide or participate in fee-based
or free benefit programs, enrollment services
and rewards programs, credit insurance
companies, debt collectors and all of their
agents, employees, directors and
representatives) if
Preview
Filing # 12923037 Electronically Filed 04/25/2014 09:54:55 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA AMERICAN EXPRESS BANK, FSB, A CASE NO.: 11-2013-CA-003407-0001-XX Federal Savings Bank, Plaintiff, vs. ADRIAN PETRILA , AKA TRAIAN A. PETRILA AKA TRAIAN ADRIAN PETRILA and PROSULTS REALTY TAMPA LLC, a Limited Liability Company, Defendants. / PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT COMES NOW, the Plaintiff, AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank (hereinafter "Plaintiff"), by and through its undersigned attorneys and hereby files their Motion for Summary Judgment pursuant to Florida Rule of Civil Procedure 1.510 and in support states the following: A. Undisputed Factual Background lL There has been an expiration of twenty (20) days from the commencement of the action. 2. Defendants entered into an Agreement with Plaintiff, AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank, at the Defendants’ specific request 3. Defendants filed a general response to the Complaint. The Answer is attached hereto as Exhibit "A". 4. Defendants breached the terms and conditions of the Agreement by failing to repay the sums due thereunder. The total sum that Defendants owe Plaintiff is $24,517.32, as evidenced by the Affidavit of Indebtedness attached hereto as Exhibit "B". 13173273 Filed with Collier County Clerk of CourtsB. Legal Argument I. Existence of a Contract and Contractual Obligations 5. Plaintiff contends that the full amount of the contract must be paid to Plaintiff pursuant to the agreement, attached hereto within Exhibit "B" and that as a matter of law, Plaintiff is entitled to Entry of Summary Final Judgment on the Complaint, as there are no genuine issues of any material fact. 6. In the case at bar, the Defendants' offer was accepted by Plaintiff when Plaintiff provided Defendants with the credit card. Accordingly, as a matter of law, there is a binding contract between Plaintiff and Defendants. 7. Plaintiff is entitled to the full amount due and owing on the contract pursuant to the Terms and Conditions of the contract and the contractual obligations that flow therefrom. TI. Determination of Liability is Appropriate by Summary Judgment 8. Clearly, there is a valid and enforceable contract between the Plaintiff and Defendants. A party's liability under the contract is determinable by Summary Judgment. Florida case law holds that "where determination of liability depends upon a written instrument of the parties thereto and the legal effect to be drawn therefrom, the questions at issue is one of law only and ordinarily is determinable by summary judgment." Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310 (Fla. 3d DCA 1970). In Shafer the Court upheld the trial court's ruling that there was no genuine issue of material fact under the contract in question. Likewise, in the case at bar, there are no genuine issues of a material fact as to liability under the contract. Plaintiff provided Defendants with the Card and Defendants incurred charges on the Card, the remaining principal of which is now due and owing, however, Defendants have failed and refused to pay Plaintiff. Accordingly, the issue of liability is only one of law and the entry of Summary Judgment is appropriate under the facts of this case. 9. Florida case law has further held that "where the determination of a party's liability depends on written instruments of parties and their legal effect, the question becomes one of law only and is determinable by summary judgment". Castle Construction Company v. Huttig Sash & Door Company, 425 So.2d 573,575 (Fla. 2d DCA 1982). In Castle, the Court agreed and affirmed the Trial Court's summary judgment ruling on the issue of liability pursuant to a contract. 1317327310. In the case at bar, the parties' liability (Plaintiff and Defendants) depends on the written contract and their legal effect. Therefore, the question of Defendants’ liability becomes one of law only and is determinable by summary judgment. Accordingly, Plaintiff is entitled to and respectfully requests that this Court enter Summary Judgment in favor of Plaintiff and against Defendant for the amount of the unpaid portion of the contract. Florida case law supports and upholds the notion that this Court may enter the requested relief. C. Summary Judgment Standard 11. Florida Rule of Civil Procedure 1.510 (c), states "the judgment sought shall be rendered JSorthwith if the pleadings, depositions, answer to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510 (c). 12. Florida case law holds that summary judgment is only appropriate when the movant has shown conclusively that no genuine issues of material facts remain; every inference is drawn in favor of the party against whom summary judgment is sought. Herig v. Akerman, Senterfitt & Edison, 741 So.2d 591 (Fla, 1* DCA 1999), 13. The movant has shown conclusively that no genuine issues of material fact remain. After drawing every inference in favor of the Defendants, summary judgment is still proper as there are no genuine issues of material fact. 14, The pleadings, answer to Complaint, on file together with the affidavit show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Accordingly, it is proper and the Plaintiff requests that this Court enter Summary Judgment in favor of Plaintiff and against Defendants. D. Conclusion 15, It is undisputed that Defendants entered into an Agreement with Plaintiff AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank. 16. It is undisputed that Plaintiff provided Defendants with the credit card at issue. 1317327317. It is undisputed that Defendants have failed to pay Plaintiff the remaining balance due of $24,517.32 or any portion thereof. 18, It is undisputed that pursuant to Florida law, that where the determination of a party's liability depends on a written instrument of the parties and their legal effect, the questions become one of law only and are determinable by summary judgment. 19. Plaintiff therefore respectfully requests that this Court enter Summary Final Judgment in favor of Plaintiff and against Defendants, as there are no genuine issues of material facts that would preclude such an entry. WHEREFORE, Plaintiff, AMERICAN EXPRESS BANK, FSB, A Federal Savings Bank, respectfully requests that this Court enter Summary Judgment in favor of Plaintiff and against Defendants for the amount of $24,517.32, reserving jurisdiction to award costs and such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email to Defendants' Attorney, Alan Borden at aborden@lawborden.com, this 2 _ day of AY oI | , 2014. S/K, PAULETTE PERRYMAN, ESQ Cordoba & Associates, P.A Attomeys for Plaintiff 1551 Sawgrass Corporate Parkway Suite 110 Sunrise FL, 33323 Telephone: 754-300-1058 Facsimile: 954-846-2224 Florida Bar No. 777811 Primary E-mail: cordoba@cordobalaw.com 13173273EXIHIBIT “A”Filing # 11647541 Electronically Filed 03/24/2014 08:58:06 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA AMERICAN EXPRESS BANK FSB Plaintiff(s), CASE NO: 11-2013-CA-003407-0001-XX vs. Arian Petrila and PROSULTS REALTY TAMPA LLC, A Limited Liability Company, Defendant(s). / ANSWER COMES NOW, Defendant, Adrian Petrila, by and through the undersigned counsel and presents this Answer to Plaintiff, American Express Bank Fsb and states: Jurisdiction and Parties 1) Defendant admits. 2) Defendant admits. 3) No answer required. 4) Defendant denies and requires strict proof thereon. 5) Defendant denies. Defendant does not and has not resided in Collier County since August 2013. General Allegations 6) Defendant denies and requires strict proof thereon. 7) Defendant denies and requires strict proof thereon. 8) Defendant denies and requires strict proof thereon. 9) Defendant denies and requires strict proof thereon. 10) Defendant denies and requires strict proof thereon. Breach of Contract Filed with Collier County Clerk of Courts11) Defendant denies and requires strict proof thereon. 12) Defendant denies and requires strict proof thereon. 13) Defendant denies and requires strict proof thereon. 14) Defendant denies and requires strict proof thereon. 15) Defendant denies and requires strict proof thereon. 16) Defendant denies and requires strict proof thereon. Count II - Quantum Meruit 17) Defendant denies and requires strict proof thereon. 18) Defendant denies and requires strict proof thereon. 19) Defendant denies and requires strict proof thereon. 20) Defendant denies and requires strict proof thereon. WHEREFORE, Defendant requests a hearing on all matters before the court on this the 24th day of March, 2014. Alan Borden, Esq. Borden Law, P.A, 3001 N. Rocky Point Dr. East Ste. 200 Tampa, Florida 33607 CERTIFICATE OF SERVICE I HEREBY CERTIIFY that a true and correct copy of the foregoing has been furnished by USS. mail on this 24" day of March, 2014, to the following: Erik Zogg, Esq. Cordoba & Associates, P.A. 1551 Sawgrass Corporate Parkway, Ste. 110 Sunrise, Fl 33323 cordoba@cordobalaw.com tie ws. f Alan Borden, Esq. Borden Law, P.A. 3001 N. Rocky Point Dr. East Ste. 200 Tampa, Florida 33607 aborden@lawborden.comEXIHIBIT “B”ae AFFIDAVIT OF PLAINTIFF eh prorat I, declare and state as follows: wet 1 1am an Assistant Custodian of Records for American Express Bank, FSB ("Plaintiff"), a federal savings bank organized under the laws of the United States., ("American Express" hereinafter), with its headquarters located at 4315 S. 2700 West, Salt Lake City, Utah 84184. 2. In my capacity as Assistant Custodian of Records for American Express, I am familiar with the ongoing credit card business operations and practices of American Express, particularly with respect to its recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by American Express. I have access to the business records relating to credit card accounts issued by American Express, including, in particular, the records of cardmember accounts and the applicable card agreements. I have personal knowledge of American Express' regular practices and procedures with respect to: (a) the transmittal of credit card account agreements, notices, billing statements, and other documents; and (b) quality assurance controls utilized to ensure that such transmittals are properly made. 1 also have access to and am generally familiar with the cardmember account records created and maintained by American Express. Except where based on my review of records and documents regularly maintained in the ordinary course of business, all of the matters set forth herein are within my personal knowledge and, if called as a witness, 1 could competently testify thereto. 3. The billing statements and other documents referred to herein were created at or near either the time of the transactions or the time the original statements were made and have been kept by American Express in the ordinary course of business. In my experience, the systems used by American Express to create and maintain data for and to produce billing statements and other documents are reliable and kept in a good state of tepair, and American Express' procedures for inserting transaction and other data into the systems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtained only by authorized American Express personnel or authorized agents pursuant to proper procedures, which must be followed in order to obtain the statements. The other records referred to herein were created and kept in the ordinary course of business by American Express and were created at or near the time of the occurrence of the matters set forth by those records and/or were created based upon information transmitted by a person with knowledge of the matters set forth in those records. It is the regular business practice of American Express to make and keep said records. The statements contained in this affidavit are made based on my personal knowledge of the business records practices of American Express. FO_FSB_001~ Co Om NA hw Bh wD Ny N NN N Ne Be Be Be ie ee ew ek BRRRRBRNRBRSRSBR RE SHE 4, All American Express credit card accounts are governed by a written agreement (the "Cardmember Agreement") setting forth the terms and conditions of the account. When an American Express account is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreement provides that use of the card constitutes acceptance of the agreement. 5. All American Express Cardmember Agreements expressly provide that American Express may change the terms of the Cardmember Agreement from time to time. American Express advises current cardholders of changes through change-in-terms notices, which are either mailed to American Express cardmembers in separate mailings or included with or printed on the cardmembers' monthly billing statements. 6. American Express maintains computerized records of the amounts due and owing to American Express for any transactions that occur when an individual uses an American Express credit card. The computerized records reflect all debits and credits in connection with the use of an American Express credit card. American Express sends or otherwise makes available monthly billing statements to cardmembers who carry a balance or are otherwise required to receive a monthly statement. 7 Ihave personally reviewed American Express' records concerning defendant ADRIAN PETRILA and REALTY DIRECT ("Defendant"), Those records reflect that Defendant opened an American Express credit card account, the current account number ending in 01006 (the "Account") in June 2011. Consistent with American Express’ standard business practices, American Express' records reflect that it mailed Defendant's credit card, together with a copy of Defendant's Cardmember Agreement, to Defendant when American Express opened Defendant's Account. Copies of each of these Cardmember Agreements were transmitted to Defendant as they were periodically revised or updated. A true and correct copy of the Cardmember Agreement in effect at the time of cancellation of the Account is annexed hereto as Exhibit A. 8. American Express' records further reflect that Defendant used the Account to pay for various goods and services and/or obtain cash advances. Consistent with American Express’ standard business practices, American Express' records reflect that it transmitted monthly billing statements to Defendant. There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due and owing on the monthly statements provided to Defendant. ' 9 Pursuant to American Express' records, under the terms of the Cardmember Agreement, Defendant defaulted in making the payments due on the Account. American Express' records reflect that American Express closed FO_FSB_001Defendant's Account. After giving Defendant credit for all Payments made, if any, the amount justly due and owing as of 4/2/2014 is $24,517.32. True and correct copies of the monthly Account Statements for the defendant's Account for the period 7/26/2013 is/are annexed hereto as Exhibit B. 10. Defendant's Account has not been sold or assigned by American Express, the original creditor of the account, 11. The information set forth herein is true and correct to the best of the undersigned's knowledge, information and belief and, if called as a witness, I could competently testify thereto. 12. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an infant, incompetent, under mental defect or infirm, I declare under the penalty of perjury under the laws of the forum state that the foregoing is true and correct to the best of my knowledge, information and belief. Dated: APR O g 2014 By: a= stodian Title: Assistant Cust i ren E Donica Dated; APRO9 201 By: Ka KAREN E. DONICA af Commission # 1951946 gh Si) Notary Public - California 2 SLO “< Ventura County 1 My Comm. Expires Oct 9, 2015 f FO_FSB_001Department of Defense Manpower Data Center Results as of: Apr-25-2014 06:43:18 AM ScRAa0 Status Report Pursuant to Servicemembers Civil Relief Act Last Name: PETRILA First Name: ADRIAN Middle Name: Active Duty Status As Of: Apr-25-2014 Z ‘On Active Duty On Active Duty Status Dato Active Duty Stait Date ‘Aetive Outy End Date = : te & :Sorvice Component 2 NA NA NA : wi ‘Loft Active Duty Within 367 Oy Soy ‘Activa Duly Siar Date! iis iy Active Duty End Date’ Service Component: NA ey NA NA “This response reflects whi the individual loft active city status within 367 days preceding hg Active Duty Slatus Date tt i ou The Member or His/Mer Unit Wes Notified of a Future Call Order Notification Start Date Order Notification End Date NA MA - SS This response reflects whether the individual or hisMner uit has received early Rotiication lo report for active duty Re 6S Upon searching the data banks of the Department of Defense Manpower Data Centar, based on the information that you provided, the above isthe status of the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. Moy Yo. any Dn Mary M, Snavely-Dixon, Director Department of Defense - Manpower Data Center 4800 Mark Center Drive, Suite 04625 Arlington, VA 22350The Defense Manpower Data Center (OMODC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 501 et seq, as amended) (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty" responses, and has experienced only a small error rate, in the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the “defenselink mil" URL: http:/www.defenselink.milfaq/pis/PCO9SLOR. html. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. § 521(c). This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date. More information on “Active Duty Status" Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps). Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1). Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA extend beyond the last dates of active duty. ‘Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided. Certificate ID: W9E2E1F2Q0FFS10EXIHIBIT “A”AMERICAN] ESS Cardmember Agreement: Part 1 of 2 As of: 06/26/2011 Business Gold Rewards Card Company Name: REALTY DIRECT Issuer: American Express Bank, FSB Cardmember Name: Adrian Petrila Account Ending In: 01006 Fees Table Annual Membership Fee $0 for the first year, then $125 Transaction Fees + Foreign Transaction 2.7% of each transaction after conversion to US dollars. Penalty Fees + Late Payment $35 or 2.99% of the past due amount, whichever is greater. * Returned Payment How we calculate interest: We use the Average Daily Balance method (including new transactions). See the How we calculate interest section in Part 2. (CMAEUAAO00001 11 Page 1 of 9How Rates and Fees Work RAMEN eae eee AU eee ee ee Treen When the penalty The Penalty APR applies to Pay Over Time balances if, APR will apply * you do not pay at least the Minimum Payment Due by the Closing Date of the billing period in which its due 3 times in 12 billing periods, * you do not pay at least the Minimum Payment Due by the Closing Date of the billing period in which it is due and you still do not Pay it by the Closing Date of the next billing period, or [+ your payment is returned by your bank. How long the penalty | The penalty APR will apply until after you have made timely Payments, with no returned payments, APR will apply for 12 billing periods in a row. Annual Membership | This fee is on the Rates and Fees Table on Page 1 of Part 1. We will charge $45 for each additional card, Late Payment $35 (lowa $15) if you do not pay the Amount Due on a billing statement before the 10th day after the next Closing Date. Also, if you do not pay that Amount Due by the following Closing Date, we may charge you an additional fee in that same billing period of the greater of $35 or 2.99% of any amount past due (lowa $15). For each following Closing Date that an amount Past due remains unpaid, we may charge a fee of the greater of $35 or 2.99% of any amount past due (lowa $15). Payi ing late may also result in a Penalty APR. See When the penalty APR will apply above. Returned Payment $38 may if your payment is returned unpaid the first time we Present it to your bank. A returned paymerit also result in a Penalty APR. See When the penalty APR will apply above. Returned Check $38 if you use your card to cash a check at one of our approved locations and the check is retumed | unpaid. We will also charge you the unpaid amount. Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee Is a finance charge. See Part 2 for Converting charges made in a foreign currency. Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. ‘CMAEUAAQ0000111 Page 2 of 9AMERICAN) FESS Cardmember Agreement: Part 2 of 2 cD 27743 How your American Express Account Works Introduction About your This document together with Part 1 make up the When you or an Additional Cardmember, as defined Cardmember Cardmember Agreement (Agreement) for the Account below, use the Account (or sign or keep a card), you and Agreement identified on page 1 of Part 1. Any supplements or the Additional Cardmember agree to the terms of the amendments are also part of the Agreement. Agreement. Words we use in We, us, and ourmean the issuer shown on page 1 of Card means any card or other device that we issue to the Agreement Part 1. Except as provided below, Basic Cardmember _access the Account. A charge is any amount added to the means the person who applied for this Account or to Account, such as purchases, fees and interest charges. A whom we address billing statements. Company means purchase is a charge for goods or services. the business for which the Account is established, You os . To pay by a certain date means to send your Payment so Corvany You aye fiat eeceecane te bound that we receive it and credit it to your Account by that date “ * * \be ts ). by the terms ofits Agree eat (see About your payments in Part 2) Additional At your request, we may issue cards to Additional You must tell Additional Cardmembers that: Cardmembers Cardmembers. They do not have accounts with us but * we may obtain, provide and use information about they can use your Account subject to the terms of this them. Agreement. + their use of the Account is subject to this Agreement. You are responsible for all use of the Account by You authorize us to give Additional Cardmembers ‘Additional Cardmembers and anyone they allow to use information about the Account and to discuss it with them, the Account. You must pay for all charges they make. iy you want to cancel an Additional Cardmember's right to You must share this agreement with all Additional d it Cardmembers, ener Account (and cancel their card) you must Replacement Basic Cardmember ‘You must tell us f the Basic Cardmember is no longer obligations and liabilities of the Basic Cardmember under an employee or officer of the Company or does not want this Agreement, as of the date that stich person replaces to be the Basic Cardmember. In that case, you must the Basic Cardmember. That person is ‘Subject to our either close the Account, or propose another person to —_ approval. Feplace the Basic Cardmember. You agree that the Basic Cardmember remains the Basic 'f you propose another person to replace the Basic Cardmember until we approve a replacement or the Cardmember, that person must agree to assume the Account is closed. About using your card Using the card You may use the card to make purchases. You may also Yo or any Additional Cardmembers, may arrange for use the card at an ATM to get cash from a checking certain merchants to charge the Account at regular account you designate. intervals. We may (but are not required to) tell these Each Cardmember acknowledges and agrees that cards Merchants about the Account status or changes to your intend tt , card number or expiration date. You must notify the or businoas poreecen” for the Company's commercial merchants directly if you want them to stop charging the Account. We decide whether to approve a charge based on how a you spend and pay on the Account ans other accounts Keep your card safe and don't let anyone else use it. If you have with us and our affiliates. We also consider ‘YOU card is lost or stolen or your Account is being used your credit history and your personal resources that we _Without your permission, contact us right away. You may inow about, ot use your Account for illegal activities. Promise to pay You promise to pay ail charges, including: * charges that Additional Cardmembers make or permit * charges you make, even if you do not present your others to make, Card or sign for the transaction, Additional Card members agree to be personally liable for * charges that other people make, whether or not you or ha i ges made using their card. We may seek payment an Additional Cardmember intend to let them use the from aren gon charges made on thelr oard if neither the Account, subject to applicable law, and Company nor the Basic Cardmember pay us. Declined transactions We may decline to authorize a charge. Reasons wo may We are not responsible for any losses you incur if we do do this include suspected fraud and our assessment of __ not authorize charge. And we are not responsible if any your creditworthiness. This may occur even if your merchant refuses to accept the card, Account is not in default. CMAEUACM0000107 Page 3 of 9About Pay Over We may add features to the Account that allow you to than a certain dollar amount, We will tell you this amount Time features ay certain charges over time. These features include when you enroll, and it is subject to change. We will tell Sign & Travel® and the Extended Payment Option. you if we change it. Certain charges are not eligible, such {fyou enroll in Sign & Travel, we will automatically place 28 Cash and similar transactions, eligible travel-related charges into a Pay Over Time We will not place any charge into a Pay Over Tima balance. Some examples are airline and cruise ship balance if it causes the total of your Pay Over Time tickets, hotels, car rentals and charges made outside the balances to go over $20,000. We wil tell you if we US. change that amount. You must pay in full all charges that , i laced into a Pay Over Time balance upon receipt If you enroll in the Extended Payment Option, we will are not pl e automatically place all eligible charges into a Pay Over Of ihe biting Statement. We may change which charges Time balance. A charge Is eligible if it equals or is more __ 4 eligible to be placed into a Pay Over Time balance. About your payments When you must pay Payment of the New Balance is due upon recei ipt of your Each statement also shows a Closing Date. The Closing statement. If a statement includes a Pay Over Time Date is the last day of the billing period covered by the balance, it will show a Minimum Payment Due. In this statement. Each Closing Date is about 30 days after the case, you must pay at least the Minimum Payment Due _ previous statement's Closing Date. by the Payment Due Date. Each statement also states the time and manner by which you must make your Payment for it to be credited as of the same day itis received. How to make Make payments to us in U.S. dollars with: statement. If we receive it after that time, we will credit the payments * a single check drawn on a U.S. bank, or payment on the day after we receive it. * a single negotiable instrument clearable through the If your payment does not meet the above requirements, U.S. banking system, for example a money order, or [YOU n " may be a delay in crediting the Account, This may * an tlecironie payment that can be cleared through the reeuit in ite fees and addionar interes charges (see U.S. banking system. How Rates and Fees Work on page 2 of Part 1). When making a payment by mail: If we decide to accept a payment made in a foreign + make a separate payment for each Account, currency, we will choses tate to convert your ayeont * mall your payment to the address shown on the into U.S. dollars, unless the law requires us to use a Payment coupon on the billing statement, and particular rate. * write the Account number on your check or negotiable . instrument and include the payment coupon. lf we process a tate payment, a partial payment, or a Payment marked with any restrictive language, that will '¥your payment meets the above requirements, we will fave no efect on our rights and will not change this credit it to the Account as of the day we receive it, as long as wa receive it by the time disclosed in the biling “a"eement. How we apply {fa statement includes a Pay Over Time balance, it will After the Minimum Payment Due has been paid, we apply payments show a Minimum Payment Due. The Minimum Payment — payments to the remaining Pay Over Time balances. and credits Due is the Pay In Full New Balance plus the Pay Over When we do this, we apply payments first to the balance Time Minimum Due. with the lowest interest rate and then to balances with Ifyou have a Pay Over Time balance, we generally higher interest rates. apply payments up to the Minimum Payment In most cases, we apply a credit to the same balance as Due first to the Pay Over Time Minimum Due and then the related charge. We may apply payments and credits to the Pay In Full New Balance. within balances, and among balances with the same in: terest rate, in any order we choose. (CMAEUACM0000107 Page 4 of 9AMERICAN Express About your Minimum Payment Due Howwe calculate — The Minimum Payment Due is the Pay In Full amount plus any Pay Over Time Mi your Minimum To calculate the Pay Over Time Minimum Due for each Payment Due statement, we start with the highest of the following three amounts: (1) 1/36th of the Pay Over Time New Balance; or (2) interest charged on the statement plus 1% of the Pay Over Time New Balance (excluding interest on the statement), not to exceed 4% of the Pay Over Time New Balance; or (3) $20. Then we round to the nearest dollar. After that, we add any Pay Over Time amount past due, However, your Pay Over Time Minimum Due will not exceed your Pay Over Time New Balance. Adjusting your Pay If you regularly pay more than the Minimum Payment Due described above, we may adjust the Pay Over Time Over Time Minimum Minimum Due in future billing periods. This may let you make a smaller minimum Payment from time to time. But if Due you then do not regularly pay more than the Minimum Payment Due described above, we will ‘stop making the adjustment and return to the formula above. If we start ‘or stop making the adjustment, we will do so for at least six billing periods in a row. To adjust the Pay Over Time Minimum Due, we will not add 1% of the Pay Over Time New Balance in (2). Then, if (2) s the highest (but less than 4% of the Pay Over Time New Balance), we will add $15. ‘We will do this if over six billing periods the sum of. payments credited to your Pay Over Time balance is more tharr the sum of the Pay Over Time Minimum Dues (not adjusted, except any Pay Over Time amount past due is counted only in the first of those six periods). We will also make the adjustment if over six billing periods the sum of the Pay Over Time Minimum Dues (not adjusted) is not more than $120 and equals the sum of payments credited {0 your Pay Over Time balance. However, we will not make the adjustment if the sum of the Pay Over Time Minimum Dues is zero and we did not. adjust the Pay Over Time Minimum Due the last time it was not zero. About interest charges When we charge We charge interest on charges that are added to a Pay Over Time balance beginning on the transaction date. interest However, you can avoid paying interest as follows. If you pay the Account Total New Balance on a Also, we will not charge interest shown on a statement if statement by the Closing Date shown on the next the Account Total Previous Balance on that statement is statement, then on that next statement we will not zero or a credit balance. charge interest. CMAEUACM0000107 Page 5 of 9How we calculate We calculate interest for a billing period by first calculating Interest on each balance within each feature, Balances interest within each feature such as Sign & Travel and Extended Payment Option may have different interest rates. We use the Average Dally Balance method (including Dally Balance rew transactions) to calculate interest charges for each For each day a DPR is in effect, we calculate the daily balance. The total interest charged for a billing period is the sum of the interest charged on each balance. Interest The interest charged for a balance in a billing period, ‘except for variations caused by rounding, equals: + Average Daily Balance (ADB) x * Daily Periodic Rate (DPR) x * number of days the DPR was in effect. ADB To get the ADB for a balance, we add up its daily balances. Then we divide the result by the number of days the DPR for that balance was in effect. if the daily balance is negative, we treat it as zero. DPR balance by: * taking the beginning balance for the day, + adding any new charges, * subtracting any payments or credits: and + making any appropriate adjustments. We add a new charge to a daily balance as of its transaction date. Beginning balance For the first day of a billing period, the beginning balance is the ending balance for the pricr billing period, including Unpaid interest. For the rest of the billing period, the beginning balance is the previous day's daily balance plus an amount of interest equal to the previous day sdaily balance muttiplied by the DPR for that balance. This method of calculating the beginning balance results in daily compounding of interest. When an interest rate changes, the new DPR may come into effect during not just at the beginning of the billing Period. When this happens, we will create a new balance and apply the new DPR to it. To get the beginning balance on the first day for this new balance, we multiply the Previous day's daily balance by the old DPR and add the result to that day's daily balance. Other methods To calculate the ADB and interest charges, we may use other formulas or methods that produce equivalent results. Also, we may choose not to charge interest on certain types of charges. We use the Prime Rate from the Money Rates section (or successor section) of The Wall Street Journal. The Prime Rate for each billing period is the Prime Rate published in The Wall Street Journal 2 days before the Closing Date of the billing period. Determining the Prime Rate The Wall Street Journal may not publish the Prime Rate on that day. If it does not, we will use the Prime Rate from the previous day it was published. If The Wall Street Journal is no longer published, we may use the Prime Rate from any other newspaper of general circulation in New York, New York. Or we may choose to use a similar published rate. If the Prime Rate increases, variable APRs (and corresponding DPRs) will increase. in that case, you may pay more interest and may have a higher Minimum Payment Due. When the Prime Rate changes, the resulting changes to variable APRs take effect as of the first day of the billing period. Other important information Changing the We may change the terms of, or add new terms to, this This written Agreement is a final expression of the Agreement. We may apply any changed or new terms to any existing and future balances on the Account, subject to applicable law. Agreement agreement governing the Account. The written Agreement may not be contradicted by any alleged oral agreement. Converting charges If you make a charge in a foreign currency, we will government agency or the highest interbank rate we made inaforelgn convert it into U.S. dollars on the date we or our identify from customary banking sources on the currency agents process it. Untess a particular rate is required conversion date or the prior business day. This rate may by law, we will choose a conversion rate that is Giffer from rates that are in effect on the date of your acceptable to us for that data, The rate we use isno charge. We wil bill charges converted by establishments more than the highest official rate published by a (such as airlines) at the rates they use. Changing your You must notify us immediately if you change the: Ifyou have more than one account, you need to Notify us * mailing address to which we send billing statements * email address to which we send notice that the billing statement is available online. + telephone and fax numbers. + legal entity of the Company. + tax identification number. billing address separately for each account. We may update your billing address if we receive information that it has changed or is incorrect. CMAEUACM0000107 Page 6 of 9AMERICA expacss Closing your You may instruct us to close the Account by callingus The Basic Cardmember and the Company remain jointly Account or writing to us. The Basic Cardmember agrees to and severally liable for all Charges made on the Account. inform the Company prior to instructing us to do so. Cancelling or ‘We may: We may do any of these things at our discretion, even if suspending * cancel whe A Account. o-ch you pay on time and the Account is not in default. * suspend the ability to make charges. i your Account + cancel or suspend any feature on the Account, If the Account is cancelled, you must destroy all cards. * notify merchants that the Account has been We may agree to reinstate the Account after a cancelled or suspended. cancellation. If we do this, we may: * reinstate any cards, including additional cards. we do ary or hese you rina still pay ds for all * charge you any applicable fees, including annual fees. arges under the terms of this Agreement, + charge you a fee for reinstating the Account. About default We may consider your Account to be in default if If we consider the Account in default, we may: + you violate a provision of this Agreement, * suspend the ability to make charges. * you give us false information, + cancel or suspend any feature on the Account. * you file for bankruptcy, * cancel the Account and require you to Pay the Account * you default under another agreement you have with balance immediately. us or an affiliate, * require you to pay more than your Minimum. Payment * you become incapacitated or die, or Due immediately. * We believe you are unable or unwilling to Pay your debts when due, Collection costs You agree to pay all reasonable costs, including attorneys' fees, that we incur to collect amounts you owe or to Protect ourselves from loss, harm or risk relating to default. Credit reports You agree that we may obtain credit reports about you credit reporting agency if you fail to comply with any term (and, subject to applicable law, any Additional of this Agreement. This may have a negative impact on Cardmembers), investigate your and any Additional your or any Additional Cardmember's credit report. Cardmembers' ability to pay, and obtain information t . . F you believe information we have given to a credit about you and any Aational Cardmembers from other reporting agency is incorrect, write to us at: American nomen And you agree that we benieg plicable law, _£%?f288 Credit Bureau Unit, P.O. Box 981837, El Paso, rmation for any purposes, subject to applicable law. sy’ 7a098 15ay. When you write to us, tell us the specific ‘You agree that we may give information about the information you believe is incorrect. Account to credit reporting agencies. We may tell a Sending you We mail you notices through the U.S. mail, postage prepaid, and address them to you at the latest billing address notices ‘shown on our records. Any notice that we send you this way is deemed to be given when deposited in the U.S. mail. Additionally, we may mail notices and information to Additional Cardmembers at their request. We may contact From time to time, we may contact you and any this to ensure the quality of customer service or when it is you Additional Cardmembers about topics ranging from required by law. servicing to marketing offers to collecting amounts you ‘owe. We may monitar and record phone calls between you (or any Additional Cardmembers) and us. We do You can choose to not receive marketing offers from us. To do this, call us at 1-800-297-8378 or log on to www.americanexpress.com/communications About insurance ‘We or our affiliates may tell you about insurance and Company or another affiliate is the insurer or reinsurer. products non-insurance products, services or features that may Compensation may influence what Products and providers have a fee. One of our affiliates may acton behalf ofa —_we or our affiliates tell you about. provider of these products. The affiliate may be We may i i “ “, i y share information about you with our affiliates so compensated for this. The insurance Products are not they can identify products that may interest you. We may offered or sold by us or on our behalf. Our affiliates be compensated for this information. may get additional compensation when Amex . Assurance How we handle When you pay us by check, you authorize us to If we do this, your payment may be deducted from your electronic debits electronically deduct the amount from your bank or bank or other asset account on the same day we receive from your checking “ther asset account. your check. Also, you will not receive that cancelled check account We may process the check electronically by with your bank or asset account billing statement. transmitting to your financial institution: If we cannot collect the funds electronically, we may issue * the amount, a draft against your bank or other asset account for the * the routing number, amount of the check, ' + the account number, and * the check serial number. ExpressPay Cards issued on the Account may be equipped with ExpressPay. ExpressPay enables you to make charges without having the card swiped or imprinted. You can call us to deactivate ExpressPay at any time. Also, we may deactivate ExpressPay at any time. CMAEUACM0000107 Page 7 of 9Privacy Act of 1974 Some federal agencies may accept the card under autho! rity of statute, When you or Additional Cardmembers make notice charges at these agencies, we collect certain charge information. That information may be put to routine uses such as processing, billing and collections. It may also be ‘aggregated for reporting, analysis and marketing use. Other routine uses by agencies may be published in the Federal Register. Change the benefits We have the right to add, modify or delete any benefit, service, or feature of the Account at our discretion. Assigning the We may sell, transfer or assign this Agreement and the Account. We May do so at any time without notifying you. Agreement You may not sell, assign or transfer the Account or any of your obligations under this Agreement. Assigning claims _If you dispute a charge with a merchant, we may credit the Account for all or part of the disputed charge. If we do S0, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You and any Additional Cardmembers agree not to pursue any claim against the merchant for the credited amount. And you and any Additional Cardmembers must cooperate with us if we decide to do so. We do not waive We may choose to delay enforcing or to not exercise rights under this Agreement. If we do this, we do not waive our rights ur rights to exercise or enforce them on any other occasion. Governing law Utah law and federal law govern this Agreement and the Account. They govern without regard to internal principles of conflicts of law. We are located in Utah. We hold the Account in Utah. We entered into this Agreement with you in Utah. Arbitration ‘This Arbitration provision sets forth the circumstances and procedures under which claims may be arbitrated instead of litigated in court. Definitions As used in this Arbitration provision, the term claim means any claim, dispute or controversy between you and us arising from or relating to your Account, this Agreement, the Electronic Funds Transfer Services Agreement, and any other related or prior agreement that you may have had with us, or the relationships resulting from any of the above agreements, except for the validity, enforceability or scope of this Arbitration provision. For purposes of this Arbitration provision, you and us also includes any corporate parent, or wholly or majority owned subsidiaries, affiliates, any licensees, predecessors, successors, assigns, any purchaser of any accounts, all agents, employees, directors and representatives of any of the foregoing, and other persons referred to below in the definition of claims. Claim includes claims of every kind and nature, including but not limited to, initial claims, counterclaims, cross-claims and third- party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. Claim also includes claims by or against any third party using or providing any product, service or benefit in connection with any account (including, but not limited to, credit bureaus, third parties who accept the card, third parties who use, provide or participate in fee-based or free benefit programs, enrollment services and rewards programs, credit insurance companies, debt collectors and all of their agents, employees, directors and representatives) if