Preview
NO. 21-DCV-281559
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff 400TH JUDICIAL DISTRICT
Vv. FORT BEND COUNTY, TEXAS
BARRY ESENE AND
ENVIRONMENTAL INDUSTRIAL
SERVICES GROUP, INC.
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
American Express National Bank, Plaintiff moves for Summary Judgment against
Defendant(s), Barry Esene And Environmental Industrial Services Group, Inc., respectfully
showing the Court as follows:
1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which
are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated herein
is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes as an
attachment a true and correct copy of the applicable supporting account documents for
account
Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil
Procedure, which states that the judgment sought shall be rendered forthwith if the
summary judgment evidence shows that there is no genuine issue if material fact and the
moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v.
Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ).
BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1] 2007, no pet.),
the court held that a valid contract was formed by evaluating the terms of the cardmember
agreement. The language in the agreement here and in Winchek is nearly identical in parts
relevant to the Court’s decision.
Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 $.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14""] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20,
2008) (citations omitted).
Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
... We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Id. at *14
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this
matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of
material fact and that the Plaintiffis entitled to judgment as a matter of law” and that Plaintiffbe
granted summary judgment against Defendant(s), Barry Esene And Environmental Industrial
Services Group, Inc., for the following
1 The principal damages amount claimed for in Plaintiff's Complaint of
$72,278.67 minus any payments received after filing this litigation, and
2. Allcosts of this proceeding
Respectfully submitted.
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE Litigation@ZwickerPC.com
(281) 494-0300
(281) 494-0213 fax
BY a
] JOHNETTA LANG, ESQ.
ar Number 24036943
[ TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
[ ] DEIDRE HARRIS, ESQ.
State Bar Number 24058586
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
fr
I hereby certify that on the \t day of Ss { 2022, this office served a true and correct
copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon
the below listed interested parties via
[ ] First-Class Mail
[v] E-Service
[ ] Certified Mail
KEITH S DONATI
410 W GRAND PKWY S
STE 104
KATY, TX 77494
KSDONATI@DBLAWFIRM.COM
2A ETTA LANG, ESQ.
i fovan WATSON, ESQ.
[| ] TABITHA HAYNES, ESQ.
[| ] DEIDRE HARRIS, ESQ
[ ] AJEET BADESHA, ESQ.
NO. 21-DCV-281559
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff 400TH JUDICIAL DISTRICT
Vv. FORT BEND COUNTY, TEXAS
BARRY ESENE AND
ENVIRONMENTAL INDUSTRIAL
SERVICES GROUP, INC.,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff
Includes True and Correct Copy of Applicable Supporting Account Documents
Exhibit “B” Non-Military Status Verification
Attachments Include:
Official Printout from the United States Department of Defense-Manpower Data Center that
Defendant is Not an Active Member of the Armed Forces Currently on Duty
AMERICAN EXPRESS NATIONAL BANK V. BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL
SERVICES GROUP, INC.
EXHIBIT “A”
Affidavit in Support of Judgment
AMERICAN EXPRESS NATIONAL BANK V. BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL
SERVICES GROUP, INC.
BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC.
Account ending in:
AFFIDAVIT OF PLAINTIFF
T, Raquel Hernandez, declare and state as follows:
1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK
("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter),
with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070.
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. I 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 are true and correct and, if
called as a witness, I 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 repair, 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.
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.
ZATE
TX_AENB_001
BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC.
Account ending in:
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 BARRY ESENE
and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. (“Defendant”). Those records reflect
that Defendant opened an American Express credit card account, the current account number ending in 006
(previously 001) (the “Account”) in 02/2011. 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 Defendant’s Account. After giving Defendant credit for all payments made, if any,
the amount justly due and owing as of 06/30/22 is $72,278.67, exclusive of court costs and attorneys’ fees. A
true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s)
03/17/20 to 04/17/20 is annexed hereto as Exhibit “B”.
10. Defendant’s Account has not been sold or assigned by American Express, the original creditor
of the account.
ZATE
TX_AENB_001
BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC.
Account ending in:
11. 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. a
Dated:_ | \slax-
, y
By:
Name: Raquel Hernandez
Title: Assistant Custodian of Records
STATE OF ARIZONA
COUNTY OF MARICOPA
Subscribed and sworn (or affirmed) before me this ote day of
(Seal)
E DANIELA ARRIAGA ESPINOZA
Lh Le,/
Notary
YY Notary Public - arizona
Se
Maricopa County
Commission = 614491
‘My Comm. Expires Oct 8, 2025
ZATE
TX_AENB_001
EXHIBIT A
BICR
ANIERICAN]
EXPRESS:
Cardmember Agreement: Part 1 of 2 As of: 06/15/2011
Business Centurion® Card Company Name: EISG
Issuer: American Express Bank, FSB Cardmember Name: Barry Esene
Accouni|
Fees Table
Annual Membership Fee $2500
Transaction Fees
Foreign Transaction None
Penalty Fees
Late Payment 3 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.
CMAEUAAO0000111 Page 1 of 8
How Rates and Fees Work
Parl COR (eae VONMm SMe) Tei} Eee aun Peace
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.
Initiation This fee is on the Rates and Fees Table on page 1 of Part 1. This fee is a finance charge.
Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. We will charge $1,500 for each
additional Business Centurion Card, $200 for each additional Business Platinum Card or Executive
Business Card, $75 for each additional Business Purchase Card and $35 for each additional
Business Gold Card.
Late Payment $35 (lowa $15) if you do not pay the Amount Due on a billing statement before the 20th 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).
Paying late may also result in a Penalty APR. See When the penalty APR will apply above.
Returned Payment $38 if your payment is returned unpaid the first time we present it to your bank. A returned payment
may 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
returned unpaid. We will also charge you the unpaid amount.
Foreign Transaction None
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
CMAEUAAO0000111 Page 20f9
EXPRESS
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 Addi nal 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 our mean 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 purchases a charge for goods or services.
the business for which the Account is established, You To pay by a certain date means to send your payment so
and your mean the Basic Cardmember and the that we receive it and credit it to your Account by that date
Company. You agree, jointly and severally, to be bound (see About your payments in Part 2).
by the terms of this Agreement.
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. If you want to cancel an Additional Cardmember s right to
You must share this agreement with all Additional
Cardmembers.
use your Account (and cancel their card) you must
tell us.
Replacement Basic You must tell us if the Basic Cardmember is no longer obligations and liabilities of the Basic Cardmember under
Cardmember an employee or officer of the Company or does not want this Agreement, as of the date that such 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.
replace the Basic Cardmember.
You agree that the Basic Cardmember remains the Basic
lf 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 u ‘our card
Using the card You may use the card to make purchases. You may also You, or any Additional Gardmembers, 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
are intended to be used for the Company s commercial card number or expiration date. You must notify the
or business purposes. merchants directly it you want them to stop charging the
Account.
We decide whether to approve a charge based on how
you spend and pay on this Account and 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 your card is lost of 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
know about. not use your Account for illegal activities.
Promise to pay You promise to pay all 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 Cardmembers agree to be personally liable for
charges that other people make, whether or not you or charges made using their card. We may seek payment
an Additional Cardmember intend to let them use the from them for charges made on their card if neither the
Account, subject to applicable law. and Company nor the Basic Cardmember pay us.
Declined We may decline to authorize a charge. Reasons we may We are not responsible for any losses you incur if we do
transactions do this include suspected fraud and our assessment of not authorize a 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 9
About 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 pay certain charges over time. These features include when you enroll, and itis subject to change. We will tell
Sign & Travel® and the Extended Payment Option. you if we change it. Certain charges are not eligible, such
Hf you enroll in Sign & Travel, we will automatically place as cash and similar transactions.
eligible travel-related charges into a Pay Over Time We will not place any charge into a Pay Over Time
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 will tell you if we
Us. change that amount. You must pay in full all charges that
if you enroll in the Extended Payment Option, we will are not placed into a Pay Over Time balance upon receipt
automatically place all eligible charges into a Pay Over of the billing statement. We may change which charges
Time balance. A charge is eligible if it equals or is more are eligible to be placed into a Pay Over Time balance.
About your ments
When you must pay Payment of the New Balance is due upon receipt 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 it is
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 there may be a delay in crediting the Account. This may
an electronic payment that can be cleared through the
USS. banking system. result in late fees and additional interest charges (see
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 choose a rate to convert your payment
mail 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
write the Account number on your check or negotiable particular rate.
instrument and include the payment coupon. If we process a late payment, a partial payment, or a
If your payment meets the above requirements, we will
payment marked with any restrictive language, that will
have no effect on our rights and will not change this
credit it to the Account as of the day we receive it, as
long as we receive it by the time disclosed in the billing
Agreement.
How we apply if a 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
If you 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 40f9
AMERICAN!
[EXPRESS
About your Minimum Payment Due
How we catculate The Minimum Payment Due is the Pay In Full amount plus any Pay Over Time Minimum Due.
your Minimum To calculate the Pay Over Time Minimum Due for each
Payment Due ‘statement, we start with the highest of the following eae
Th linin
three amounts:
(1) 1/36th of the Pay Over Time New Balance; or Time N
2) interest charged on the statement plus 1% of the Xe
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. ot
However, your Pay Over Time Minimum Bue will not nu
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 raw.
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) is 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 than
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
to 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
_ a —
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 9
How 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 Daily Balance method (including Dally Balance
new 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 balance by:
the sum of the interest charged on each balance. taking the beginning balance for the day.
Interest adding any new charges,
‘The interest charged for a balance in a billing period, subtracting any payments or credits; and
except for variations caused by rounding, equals: making any appropriate adjustments.
Average Daily Balance (ADB) x We add a new charge to a daily balance as of its
Daily Periodic Rate (DPA) x transaction date.
number of days the DPR was in effect. Beginning balance
ADB For the first day of a billing period, the beginning balance
To get the ADB for a balance, we add up its daily is the ending balance for the prior billing period, including
balances. Then we divide the result by the number of unpaid interest. For the rest of the billing period, the
days the DPR for that balance was in effect. If the daily beginning balance is the previous day s daily balance plus
balance is negative, we treat it as zero. an amount of interest equal to the previous day s daily
DPR balance multiplied by the DPR for that balance. This
A DPR is 1/365th of an APR, rounded to one ten- method of calculating the beginning balance results in
thousandth of a percentage point, Your DPRs are shown daily compounding of interest.
in How Rates and Fees Work on page 2 of Part 1. ‘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
EV a si and apply the new DPR to it. To get the beginning balance
50 on the first day for this new balance, we multiply the
a previous day s daily balance by the old DPR and add the
os 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.
Determining the We use the Prime Rate from the Money Rates section use the Prime Rate from any other newspaper of general
Prime Rate (or successor section) of The Wall Street Journal. The circulation in New York, New York. Or we may choose to
Prime Rate for each billing period is the Prime Rate use a similar published rate.
published in The Wall Street Journal 2 days before the If the Prime Rate increases, variable APRs (and
Closing Date of the billing period. corresponding DPRs) will increase. In that case, you may
The Wail Street Journal may not publish the Prime Rate pay more interest and may have a higher Minimum
on that day. If it does not, we will use the Prime Rate Payment Due. When the Prime Rate changes, the
from the previous day it was published. If The Wall resulting changes to variable APRs take effect as of the
Street Journal is no longer published, we may 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 Agreement. We may apply any changed or new terms agreement governing the Account. The written Agreement
to any existing and future balances on the Account, may not be contradicted by any alleged oral agreement.
subject to applicable law.
Converting charges If you make a charge in a foreign currency, we will ‘government agency or the highest interbank rate we
made in a foreign convert it into U.S. dollars on the date we or our identify from customary banking sources on the
currency agents process it. Unless 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 differ from rates that are in effect on the date of your
acceptable to us for that date. The rate we use is no charge. We will 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 nolily us
billing address mailing address to which we send billing statements separately for each account.
email address to which we send notice that the
billing statement is available online.
We may update your billing address if we receive
information that it has changed or is incorrect.
telephone and fax numbers.
legal entity of the Company.
tax identification number,
CMAEUACM0000107 Page 6 of 9
AMERI
EXPRESS
Closing your You may instruct us to close the Account by calling us 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 the Account. you pay on time and the Account is not in default.
your Account suspend the ability to make charges. If the Account is cancelled, you must destroy all cards.
cancel or suspend any feature on the Account.
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.
tf we do any of these, you must still pay us for all charge you any applicable fees, including annual fees.
charges 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 a
Preview
NO. 21-DCV-281559 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff 400TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: American Express National Bank, Plaintiff moves for Summary Judgment against Defendant(s), Barry Esene And Environmental Industrial Services Group, Inc., respectfully showing the Court as follows: 1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated herein is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes as an attachment a true and correct copy of the applicable supporting account documents for account Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil Procedure, which states that the judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue if material fact and the moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v. Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ). BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 $.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14""] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20, 2008) (citations omitted). Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed ... We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Id. at *14 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiffis entitled to judgment as a matter of law” and that Plaintiffbe granted summary judgment against Defendant(s), Barry Esene And Environmental Industrial Services Group, Inc., for the following 1 The principal damages amount claimed for in Plaintiff's Complaint of $72,278.67 minus any payments received after filing this litigation, and 2. Allcosts of this proceeding Respectfully submitted. ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE Litigation@ZwickerPC.com (281) 494-0300 (281) 494-0213 fax BY a ] JOHNETTA LANG, ESQ. ar Number 24036943 [ TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 [ ] DEIDRE HARRIS, ESQ. State Bar Number 24058586 [ ] AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE fr I hereby certify that on the \t day of Ss { 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via [ ] First-Class Mail [v] E-Service [ ] Certified Mail KEITH S DONATI 410 W GRAND PKWY S STE 104 KATY, TX 77494 KSDONATI@DBLAWFIRM.COM 2A ETTA LANG, ESQ. i fovan WATSON, ESQ. [| ] TABITHA HAYNES, ESQ. [| ] DEIDRE HARRIS, ESQ [ ] AJEET BADESHA, ESQ. NO. 21-DCV-281559 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff 400TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC., Defendant(s) EXHIBIT LIST FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff Includes True and Correct Copy of Applicable Supporting Account Documents Exhibit “B” Non-Military Status Verification Attachments Include: Official Printout from the United States Department of Defense-Manpower Data Center that Defendant is Not an Active Member of the Armed Forces Currently on Duty AMERICAN EXPRESS NATIONAL BANK V. BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. EXHIBIT “A” Affidavit in Support of Judgment AMERICAN EXPRESS NATIONAL BANK V. BARRY ESENE AND ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. Account ending in: AFFIDAVIT OF PLAINTIFF T, Raquel Hernandez, declare and state as follows: 1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK ("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter), with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070. 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. I 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 are true and correct and, if called as a witness, I 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 repair, 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. 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. ZATE TX_AENB_001 BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. Account ending in: 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 BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. (“Defendant”). Those records reflect that Defendant opened an American Express credit card account, the current account number ending in 006 (previously 001) (the “Account”) in 02/2011. 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 Defendant’s Account. After giving Defendant credit for all payments made, if any, the amount justly due and owing as of 06/30/22 is $72,278.67, exclusive of court costs and attorneys’ fees. A true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s) 03/17/20 to 04/17/20 is annexed hereto as Exhibit “B”. 10. Defendant’s Account has not been sold or assigned by American Express, the original creditor of the account. ZATE TX_AENB_001 BARRY ESENE and ENVIRONMENTAL INDUSTRIAL SERVICES GROUP, INC. Account ending in: 11. 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. a Dated:_ | \slax- , y By: Name: Raquel Hernandez Title: Assistant Custodian of Records STATE OF ARIZONA COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this ote day of (Seal) E DANIELA ARRIAGA ESPINOZA Lh Le,/ Notary YY Notary Public - arizona Se Maricopa County Commission = 614491 ‘My Comm. Expires Oct 8, 2025 ZATE TX_AENB_001 EXHIBIT A BICR ANIERICAN] EXPRESS: Cardmember Agreement: Part 1 of 2 As of: 06/15/2011 Business Centurion® Card Company Name: EISG Issuer: American Express Bank, FSB Cardmember Name: Barry Esene Accouni| Fees Table Annual Membership Fee $2500 Transaction Fees Foreign Transaction None Penalty Fees Late Payment 3 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. CMAEUAAO0000111 Page 1 of 8 How Rates and Fees Work Parl COR (eae VONMm SMe) Tei} Eee aun Peace 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. Initiation This fee is on the Rates and Fees Table on page 1 of Part 1. This fee is a finance charge. Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. We will charge $1,500 for each additional Business Centurion Card, $200 for each additional Business Platinum Card or Executive Business Card, $75 for each additional Business Purchase Card and $35 for each additional Business Gold Card. Late Payment $35 (lowa $15) if you do not pay the Amount Due on a billing statement before the 20th 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). Paying late may also result in a Penalty APR. See When the penalty APR will apply above. Returned Payment $38 if your payment is returned unpaid the first time we present it to your bank. A returned payment may 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 returned unpaid. We will also charge you the unpaid amount. Foreign Transaction None Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. CMAEUAAO0000111 Page 20f9 EXPRESS 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 Addi nal 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 our mean 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 purchases a charge for goods or services. the business for which the Account is established, You To pay by a certain date means to send your payment so and your mean the Basic Cardmember and the that we receive it and credit it to your Account by that date Company. You agree, jointly and severally, to be bound (see About your payments in Part 2). by the terms of this Agreement. 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. If you want to cancel an Additional Cardmember s right to You must share this agreement with all Additional Cardmembers. use your Account (and cancel their card) you must tell us. Replacement Basic You must tell us if the Basic Cardmember is no longer obligations and liabilities of the Basic Cardmember under Cardmember an employee or officer of the Company or does not want this Agreement, as of the date that such 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. replace the Basic Cardmember. You agree that the Basic Cardmember remains the Basic lf 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 u ‘our card Using the card You may use the card to make purchases. You may also You, or any Additional Gardmembers, 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 are intended to be used for the Company s commercial card number or expiration date. You must notify the or business purposes. merchants directly it you want them to stop charging the Account. We decide whether to approve a charge based on how you spend and pay on this Account and 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 your card is lost of 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 know about. not use your Account for illegal activities. Promise to pay You promise to pay all 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 Cardmembers agree to be personally liable for charges that other people make, whether or not you or charges made using their card. We may seek payment an Additional Cardmember intend to let them use the from them for charges made on their card if neither the Account, subject to applicable law. and Company nor the Basic Cardmember pay us. Declined We may decline to authorize a charge. Reasons we may We are not responsible for any losses you incur if we do transactions do this include suspected fraud and our assessment of not authorize a 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 9 About 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 pay certain charges over time. These features include when you enroll, and itis subject to change. We will tell Sign & Travel® and the Extended Payment Option. you if we change it. Certain charges are not eligible, such Hf you enroll in Sign & Travel, we will automatically place as cash and similar transactions. eligible travel-related charges into a Pay Over Time We will not place any charge into a Pay Over Time 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 will tell you if we Us. change that amount. You must pay in full all charges that if you enroll in the Extended Payment Option, we will are not placed into a Pay Over Time balance upon receipt automatically place all eligible charges into a Pay Over of the billing statement. We may change which charges Time balance. A charge is eligible if it equals or is more are eligible to be placed into a Pay Over Time balance. About your ments When you must pay Payment of the New Balance is due upon receipt 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 it is 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 there may be a delay in crediting the Account. This may an electronic payment that can be cleared through the USS. banking system. result in late fees and additional interest charges (see 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 choose a rate to convert your payment mail 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 write the Account number on your check or negotiable particular rate. instrument and include the payment coupon. If we process a late payment, a partial payment, or a If your payment meets the above requirements, we will payment marked with any restrictive language, that will have no effect on our rights and will not change this credit it to the Account as of the day we receive it, as long as we receive it by the time disclosed in the billing Agreement. How we apply if a 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 If you 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 40f9 AMERICAN! [EXPRESS About your Minimum Payment Due How we catculate The Minimum Payment Due is the Pay In Full amount plus any Pay Over Time Minimum Due. your Minimum To calculate the Pay Over Time Minimum Due for each Payment Due ‘statement, we start with the highest of the following eae Th linin three amounts: (1) 1/36th of the Pay Over Time New Balance; or Time N 2) interest charged on the statement plus 1% of the Xe 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. ot However, your Pay Over Time Minimum Bue will not nu 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 raw. 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) is 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 than 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 to 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 _ a — 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 9 How 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 Daily Balance method (including Dally Balance new 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 balance by: the sum of the interest charged on each balance. taking the beginning balance for the day. Interest adding any new charges, ‘The interest charged for a balance in a billing period, subtracting any payments or credits; and except for variations caused by rounding, equals: making any appropriate adjustments. Average Daily Balance (ADB) x We add a new charge to a daily balance as of its Daily Periodic Rate (DPA) x transaction date. number of days the DPR was in effect. Beginning balance ADB For the first day of a billing period, the beginning balance To get the ADB for a balance, we add up its daily is the ending balance for the prior billing period, including balances. Then we divide the result by the number of unpaid interest. For the rest of the billing period, the days the DPR for that balance was in effect. If the daily beginning balance is the previous day s daily balance plus balance is negative, we treat it as zero. an amount of interest equal to the previous day s daily DPR balance multiplied by the DPR for that balance. This A DPR is 1/365th of an APR, rounded to one ten- method of calculating the beginning balance results in thousandth of a percentage point, Your DPRs are shown daily compounding of interest. in How Rates and Fees Work on page 2 of Part 1. ‘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 EV a si and apply the new DPR to it. To get the beginning balance 50 on the first day for this new balance, we multiply the a previous day s daily balance by the old DPR and add the os 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. Determining the We use the Prime Rate from the Money Rates section use the Prime Rate from any other newspaper of general Prime Rate (or successor section) of The Wall Street Journal. The circulation in New York, New York. Or we may choose to Prime Rate for each billing period is the Prime Rate use a similar published rate. published in The Wall Street Journal 2 days before the If the Prime Rate increases, variable APRs (and Closing Date of the billing period. corresponding DPRs) will increase. In that case, you may The Wail Street Journal may not publish the Prime Rate pay more interest and may have a higher Minimum on that day. If it does not, we will use the Prime Rate Payment Due. When the Prime Rate changes, the from the previous day it was published. If The Wall resulting changes to variable APRs take effect as of the Street Journal is no longer published, we may 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 Agreement. We may apply any changed or new terms agreement governing the Account. The written Agreement to any existing and future balances on the Account, may not be contradicted by any alleged oral agreement. subject to applicable law. Converting charges If you make a charge in a foreign currency, we will ‘government agency or the highest interbank rate we made in a foreign convert it into U.S. dollars on the date we or our identify from customary banking sources on the currency agents process it. Unless 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 differ from rates that are in effect on the date of your acceptable to us for that date. The rate we use is no charge. We will 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 nolily us billing address mailing address to which we send billing statements separately for each account. email address to which we send notice that the billing statement is available online. We may update your billing address if we receive information that it has changed or is incorrect. telephone and fax numbers. legal entity of the Company. tax identification number, CMAEUACM0000107 Page 6 of 9 AMERI EXPRESS Closing your You may instruct us to close the Account by calling us 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 the Account. you pay on time and the Account is not in default. your Account suspend the ability to make charges. If the Account is cancelled, you must destroy all cards. cancel or suspend any feature on the Account. 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. tf we do any of these, you must still pay us for all charge you any applicable fees, including annual fees. charges 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 a