Preview
Filed
8/2/2022 9:06 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Dreamy Jose
NO. 21-DCV-281993
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff 400TH JUDICIAL DISTRICT
v. FORT BEND COUNTY, TEXAS
KIMBERLY MANNING AKA §
KIMBERLY S MANNING,
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), Kimberly Manning Aka Kimberly S Manning, 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 S.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. Jd. 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 Plaintiff be
granted summary judgment against Defendant(s), Kimberly Manning Aka Kimberly S Manning,
for the following
1 The principal damages amount claimed for in Plaintiff's Complaint of
$14,130.41 minus any payments received after filing this litigation, and
2. All costs 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: EAA
en
OHNETTA LANG, ESQ.
Sta) ar Number 24036943
i 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
I hereby certify that on the 2 fugue
day of
copy of the foregoing in accordance with the
Rule 21a
, 2022, this office served a true and correct
of the Texas Rules of Civil Procedure upon
the below listed interested parties via
[ ] First-Class Mail
[Vv] E-Service
[ ] Certified Mail
JONATHON C. JOHNSON
701 N. POST OAK ROAD, SUITE 140
HOUSTON, TX 77024
CHAD@JBLAWTEXAS.COM
A SZ
_—T | JOHNETTA LANG, ESQ.
TREVON WATSON, ESQ.
[ ] TABITHA HAYNES, ESQ
[ ] DEIDRE HARRIS, ESQ.
[ ] AJEET BADESHA, ESQ.
NO. 21-DCV-281993
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff 400TH JUDICIAL DISTRICT
Vv. FORT BEND COUNTY, TEXAS
KIMBERLY MANNING AKA §
KIMBERLY S MANNING,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFE’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. KIMBERLY MANNING AKA KIMBERLY S MANNING
EXHIBIT “A”
Affidavit in Support of Judgment
AMERICAN EXPRESS NATIONAL BANK V. KIMBERLY MANNING AKA KIMBERLY S MANNING
KIMBERLY MANNING AKA KIMBERLY S MANNING
Account ending in|
AFFIDAVIT OF PLAINTIFF
I, Raquel Hernandez, declare and state as follows:
1 Tam 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.
> 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
KIMBERLY MANNING AKA KIMBERLY S MANNING
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 KIMBERLY
MANNING AKA KIMBERLY S MANNING (“Defendant”). Those records reflect that Defendant opened
an American Express credit card account, the current account number ending in 009 (the “Account”) in
10/2004. 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 $14,130.41, 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)
07/16/20 to 08/16/20 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
KIMBERLY MANNING AKA KIMBERLY S MANNING
Account ending in;
le 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.
Dated: | | §|202~ By:
Z
Name: Raquel Hernandez
Title: Assistant Custodian of Records
STATE OF ARIZONA
COUNTY OF MARICOPA
Subscribed and sworn (or affirmed) before me this S day of , 2022
(Seal)
Notary
DANIELA ARRIAGA ESPINOZA
2 Notary Public - Arizona
y
f §
Y
iB
Maricopa County
Commission = 614491
SEs
WF My Comm. Expires Oct 8, 2025
ZATE
TX_AENB_001
EXHIBIT A
BICR
AMERICAN}
[EXPRESS
Cardmember Agreement: Part 1 of 2 As of: 12/07/2010
—
Platinum Delta SkyMiles®
Issuer: American Express Bank, FSB Cardmember Name: Kimberly S Manga
Credit Limit: $13,100 (Cash Advance Limit: $1,400) Accoun
Rates and Fees Table
CaaS
Annual Percentage Rate
(APR) for Purchases 13.24%
This APR will vary with the market based on the Prime Rate.
APR for Balance Transfers 13.24% for any balance transfer requests we may accept.
This APR will vary with the market based on the Prime Rate.
APR for Cash Advances 25.24%
This APR will vary with the market based on the Prime Rate.
Penalty APR and When it 27.24%
Applies
This APR will vary with the market based on the Prime Rate.
This APR will apply to your account if you:
1) make one or more late payments; or
make a payment that is returned.
How Long Will the Penalty APR Apply? If the Penalty APR is applied, it
A
will apply for at least 6 months. We will review ‘our Account every 6 months.
after the Penalty APR is applied. The Penalty PR will continue to apply until
you have made timely eee with no returned payments during the 6
months being reviewer
Paying Interest Your due date is at least 25 days after the close of each billing period. We will
not charge you interest on purchases if you pay your entire balance by the due
date each month. We will begin charging interest on cash advances and balance
transfers on the transaction late.
For Credit Card Tips from To learn more about factors to consider when applying for or using a credit card,
the Federal Reserve Board visit th 1e website of the Federal Reser ve a at
http wwii go 3
gd
Annual Membership Fee $150
Transaction Fees
Balance Transfer Either $5 or 3% of the amount of each transfer, whichever is greater.
Cash Advance Either $5 or 3% of the amount of each cash advance, whichever is greater.
Foreign Transaction 2.7% of each transaction after conversion to US dollars.
Penalty Fees
Late Payment Up to $35
Returned Payment Up to $35
Overlimit None
How we calculate interest: We use the Average Daily Balance method (including new transactions). See the
How we calculate interest section in Part 2.
Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions.
CMAEUAAO0000105 Page
1 of 11
How Rates and Fees Work
APRs and DPRs to the Prime Rate (see Determining the Prime Rate in Part 2). The Daily Periodic Rate (DPR) is
1/365th of the APR, rounded to one ten-thousandth of a percentage point.
Rate Description Prime + Margin APR DPR
Purchase Prime + 9.99% 13.24% 0.0363%
Balance Transfer Prime + 9.99% 13.24% 0.0363%
Cash Advance Prime + 21.99% 25.24% 0.0691%
Penalty Prime + 23.99% 27.24% 0,0746%
Penalty APR for The penalty APR applies to new transactions if: If the Penalty APR applies to a balance, it will
new transactions you do not pay at least the Minimum apply to charges added to that balance 15 or
Payment Due by the Closing Date of the more days after we send you notice.
billing period in which itis due,
you do not pay at least the Minimum We will review your Account every 6 months after
Payment Due by the Payment Due Date 2 the Penalty APR is applied. The Penalty APR will
times in 12 billing periods, or continue to apply until you have made timely
your payment is returned by your bank. payments with no returned payments during the 6
months being reviewed.
Penalty APR for If you do not pay at least the Minimum Payment Due within 60 days after its Payment Due Date, we
existing balances can apply the penalty APR to those balances it does not already apply to. After you pay on time for
6 billing periods in a row, the penalty APR will no longer apply to those balances (but it may still
apply to other balances as described above).
We add fees to a purchase balance, unless we tell you otherwise.
Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1.
Late Payment Up to $35. If we do not receive the Minimum Payment Due by its Payment Due Date, the fee is $25.
if this happens again within the next 6 billing periods, the fee is $35. However, the late fee will not
exceed the Minimum Payment Due. Paying late may also result in a Penalty APR. See Penalty
APR for new transactions and Penalty APR for existing balances above.
Returned Payment Up to $35. If your payment is returned unpaid the first time we present it to your bank, the fee is
$25. If this happens again within the next 6 billing periods, the fee is $35. However, the returned
payment fee will not exceed the Minimum Payment Due on the last Payment Due Date before the
payment is returned. A returned payment may also result in a Penalty APR. See Penalty APR for
new transactions 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.
Overlimit None. See Credit limit and cash advance limitin Part 2.
Statement Copy $5 for each statement you request, except for the 3 most recent billing periods.
Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so.
Balance Transfer 3% of the transaction, with a minimum of $5. A different fee may apply if stated in a promotional
offer or at the time of a transaction. This fee is a finance charge. We will add it to the same balance
as the balance transfer.
Cash Advance 3% of the withdrawal and other services you obtain (including any fee charged by the ATM
operator), with a minimum of $5. We will add this fee to the cash advance balance.
Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Converting charges
made in a foreign currency in Part 2. .
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
CMAEUAA00000105 Page 2 of 11
AMERI
EXPRESS:
Supplement to the Cardmember Agreement
How Your Reward Program Works
Delta SkyMiles®
Types of Card You can receive Delta SkyMiles® (miles) when you make purchases with your Delta SkyMiles® Credit
Accounts. Card from American Express (Card Account). We offer Classic, Gold and Platinum Delta SkyMiles
Credit Cards. The rewards are different for each type of Card Account.
How you receive You receive 1 mile for each $1 of eligible Eligible purchases do NOT include:
miles purchases on your Card Account. fees or interest charges,
Eligible purchases are purchases for goods and balance transfers,
services minus returns and other credits. cash advances,
purchases of traveler s checks,
purchases or reloading of reloadable prepaid
cards, or
purchases of any cash equivalents.
How you receive You receive 1 additional mile for each $1 of eligible Delta vacation packages.
additional miles purchases on your Card Account for the following other Delta services.
purchases submitted to us using a Delta merchant You will NOT receive additional miles for:
code: purchases of air travel on a Delta flight that are
air travel on a Delta flight. part of all-inclusive air or sea tour packages.
air travel on a Delta partner flight with a DL flight
code.
When we transfer We transfer the miles you receive to your Delta SkyMiles account after the end of the billing period in
miles which you received them.
When you will If the Minimum Payment Due is not paid by the Closing Date of the billing period in which it is due, you
forfeit miles will forfeit the miles you received for eligible purchases during that billing period. You may reinstate
those miles within the next 24 billing periods if your Card Account is not past due and you pay a $29
fee.
How you can You may receive a Miles Boost award based on your eligible purchases for each calendar year. For
receive a Miles each type of Card Account, the Miles Boost and the eligible purchases required to receive the award
Boost™ each year are shown below.
ype
of Card Annual Eligible Purchases
Classic $10,000 or more 2,500
Gold $15,000 $24,999 5,000
Gold $25,000 or more. 10,000
Platinum $25,000 $49,999 10,000 Medallion Qualifying Miles
Platinum $50,000 or more 20,000 Medallion Qualifying Miles
Some Miles Boost award restrictions A calendar year is from January 1 to December 31
You can receive only one Miles Boost award for regardless of when you open your Card Account.
each Gard Account. In addition, if you have more This means in your first year as a Cardmember
than one Platinum Card Account linked to the you may have fewer months to accumulate eligible
same SkyMiles account, you are eligible for only purchases toward a Miles Boost award.
one Medallion award each year.
Restriction on You may receive Welcome Bonus Miles for opening a Card Account. If you open another Card Account
Welcome Bonus with a higher Welcome Bonus Miles award, you will only get the difference between the first and
Miles second awards.
Other things you You will receive miles only for eligible purchases SkyMiles account.
should know about intended for personal, family or household use.
this program We may change the terms of this reward program Miles are subject to the Delta SkyMiles
at our discretion. If you violate or abuse this reward Membership Guide and Program Rules. You
program, you may forfeit some or all of your miles. should refer to that document for details on:
how to redeem your miles,
We are not responsible for miles after they are Delta s right to change its program terms, and
credited to your SkyMiles account. We are also not other conditions that may apply to Deltas
responsible for the actions of Delta on your program.
CMAEUAPS0000115. Page
3 of 11
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CMAEUAPS0000115 Page
4 of 11
AMERICAN]
EXPRESS
Cardmember Agreement: Part 2 of 2 CD 27738
Introduction
About your This document together with Part 1 make up the ‘Any supplements or amendments are also part of
Cardmember Agreement Cardmember Agreement (Agreement) for the the Agreement. When you use the Account (or you
Account identified on page 1 of Part 1. sign or keep the card), you agree to the terms of the
Agreement.
Changing the Agreement We may change this Agreement, subject to to some terms may require 45 days advance notice,
applicable law. We may do this in response to the and we will tell you in the notice if you have the right
business, legal or compatitive environment. to reject a change. We cannot change certain terms
We cannot increase the interest rate on existing during the first year of your Cardmembership.
balances except in limited circumstances, Changes
Words we use in We, us, and our mean the issuer shown on page 1 added to your Account, such as purchases, cash
the Agreement of Part 1. You and your mean the person who advances, balance transfers, fees and interest
applied for this Account and for whom we opened charges. A purchase is a charge for goods or
the Account, You and your also mean anyone who services. A cash advance is a charge to get cash
agrees to pay for this Account. You are the Basic or cash equivalents. A balance transfer is a charge
Cardmember. You may request a card for an to pay an amount you owe on another credit card
Additional Cardmember (see About Additional account,
Cardmembers in Part 2). To payby a certain date means to send your
Card means any card or other device that we issue payment so that we receive it and credit it to your
to access your Account. A charge is any amount Account by that date (see About your payments in
Part 2).
About usin our card
Using the card You may use the card to make purchases. At our ‘Account status or changes to your card number or
discretion, we may permit you to make cash expiration date. You must notify the merchants
advances or balance transfers. You cannot transfer directly if you want them to stop charging your
balances from any other account issued by us or our Account.
affiliates.
Keep your card safe and don t let anyone else use
You may arrange for certain merchants to charge it. If your card is lost or stolen or your Account is
your Account at regular intervals. We may (but are being used without your permission, contact us right
Not required to) tell these merchants about your away. You may not use your Account for illegal
activities.
Promise to pay You promise to pay all charges, including:
charges you make, even if you do not present your card or sign for the transaction,
charges that other people make if you let them use your Account, and
charges that Additional Cardmembers make or permit others to make.
Credit limit We assign a Credit Limitto your Account. We may You agree to manage your Account so that:
and cash advance limit make part of your Credit Limit available for cash your Account balance {including fees and interest)
advances (Cash Advance Lir i). There may also be is not more than your Credit Limit, and
a limit on the amount you can withdraw from ATMs in your cash advance balance (including fees and
‘a given period. The Credit Limit and Cash Advance interest) is not more than your Cash Advance
Limit are shown on page 1 of Part 1 and on each Limit,
billing statement. We may approve charges that cause your Account
We may increase or reduce your Credit Limit and balance to go over your Credit Limit. If we do this,
Cash Advance Limit. We may do so even if you pay ‘we will not charge an overlimit fee. If we ask you to
‘on time and your Account is not in default. promptly pay the amount of your Account balance
above your Credit Limit, you agree to do so.
Declined transactions We may decline to authorize a charge. Reasons we We are not responsible for any losses you incur if
may do this include suspected fraud and our we do not authorize a charge. And we are not
assessment of your creditworthiness. This may occur responsible if any merchant refuses to accept the
even if the charge would not cause you to go over card.
your Credit Limit and your Account is not in default.
CMAEUACM0000102 Page
5 of 11
About your payments
When you must pay You must pay at least the Minimum Payment Due by at least the Minimum Payment Due in such time and
the Payment Due Date. The Minimum Payment Due manner by the Payment Due Date shawn on your
and Payment Due Date are shown on each billing billing statement.
statement,
Each statement also shows a Closing Date. The
Each statement also states the time and manner by Closing Date is the last day of the billing period
which you must make your payment for it to be covered by the statement. Each Closing Date is
credited as of the same day it is received. For your about30 days after the previous statemient s Closing
paymentto be considered on time, we must receive Date.
How to make payments Make payments to us in U.S. dollars with: your billing statement. If we receive it after that time,
a single check drawn on a U.S, bank, or ‘we will credit the payment on the day after we
a single negotiable instrument clearable through receive it.
the U.S. banking system, for example a money
order, or your payment does not meet the above
an electronic payment that can be cleared through
requirements, there may be a delay in crediting your
Account. This may resull in late fees and additional
the U.S, banking system. interest charges (see How Rates and Fees Work on
When making a payment by mail: page
2 of Part 1).
make a separate payment for each account,
If we decide to accept a payment made in a foreign
mail your payment to the address shown on the
payment coupon on your billing statement, and currency, we will choose a rate to convert your
write your Account number on your check or payment into U.S. dollars, unless the law requires us
negotiable instrument and include the payment
touse a particular rate.
coupon. Itwe process a late payment, a partial payment, or a
payment marked with any restrictive language, that
If your payment meets the above requirements, we
will credit it to your Account as of the day we receive
will have no effect on our rights and will not change
it, as long as we receive it by the time disclosed in
this Agreement.
How we apply payments. Your Account may have balances with different After the Minimum Payment Due has been paid,
and credits interest rates. For example, purchases may have a we apply your payments to the balance with the
lower interest rate than cash advances. If your highest interest rate, and then to balances with
Account has balances with different interest rates, lower interest rates.
here is how we generally apply payments in a billing
period: In most cases, we apply a credit to the same
balance as the related charge. For example,
We apply your payments, up to the Minimum
Payment Due, first to the balance with the lowest
apply a credit for a purchase to the purchase
balance. We may apply payments and credits within
interest rate, and then to balances with higher balances, and among balances with the same
interest rates. interest rate, in any order we choose.
About your imum Payment Due
How we calculate your To calculate the imum Payment Due for each
Minimum Payment Due statement, we start with the highestof the following
three amounts: ie
(1) 2% of the New Balance (excluding late fees on ei
the statement); or on
(2) interest charged on the statement plus 1% of 90)
Q a
the New Balance (excluding late fees and
interest on the statement), not to exceed 4% of
the New Balance;
(3) $15.
Then we add late fees on the statement, round to
the nearest dollar, and add any amount past due.
However, your Minimum Payment Due will not
exceed your New Balance.
Adjusting your Ifyou regularly pay more than the Minimum Payment Due described above, we may adjust it in future
Minimum Payment Due billing periods. This may let you make a smaller minimum payment from time to time. But if you then do
not regularly pay more than the Minimum Payment Due described above, we will stop adjusting it and
return to the formula above. If we start or stop adjusting your Minimum Payment Due, we will do so for at
least six billing periods in a row. To adjust the Minimum Payment Due, we will not exclude late fees from
(1) and not add 1% of the New Balance in (2). Then, if (2) is the highest (but less than 4% of the New
Balance), we will add $15. If we do the adjustment, we will not include any new late fees in the Minimum
Payment Due. continued on next page...
CMAEUACM0000102 Page
6 of 11
AMERICAN]
[EXPRESS
..continued from previous page We will do this if over six billing periods the sum of your payments is more than the sum of the Minimum
Payments Due (not adjusted, except any amount past due ie counted only in the first of those six periods).
We will also make the adjustment if over six billing periods the sum of the Minimum Payments Due (not
adjusted) is not more than $80 and equals the sum of your payments. However, we will not make the
adjustment if the sum of Minimum Payments Due is zero and we did not adjust the Minimum Payment Due
the last time it was not zero.
About interest charges
When we charge interest We charge interest beginning on the date of each transaction. You can avoid paying interest on purchases
as described below. However, you cannot avoid paying interest on cash advances and balance transfers.
If you pay the New Balance on every statement by by the Payment Due Date, we will not charge
the Payment Due Date, we will not charge interest interest on purchases from the date of your
on purchases.
Preview
Filed 8/2/2022 9:06 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Dreamy Jose NO. 21-DCV-281993 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff 400TH JUDICIAL DISTRICT v. FORT BEND COUNTY, TEXAS KIMBERLY MANNING AKA § KIMBERLY S MANNING, 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), Kimberly Manning Aka Kimberly S Manning, 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 S.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. Jd. 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 Plaintiff be granted summary judgment against Defendant(s), Kimberly Manning Aka Kimberly S Manning, for the following 1 The principal damages amount claimed for in Plaintiff's Complaint of $14,130.41 minus any payments received after filing this litigation, and 2. All costs 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: EAA en OHNETTA LANG, ESQ. Sta) ar Number 24036943 i 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 I hereby certify that on the 2 fugue day of copy of the foregoing in accordance with the Rule 21a , 2022, this office served a true and correct of the Texas Rules of Civil Procedure upon the below listed interested parties via [ ] First-Class Mail [Vv] E-Service [ ] Certified Mail JONATHON C. JOHNSON 701 N. POST OAK ROAD, SUITE 140 HOUSTON, TX 77024 CHAD@JBLAWTEXAS.COM A SZ _—T | JOHNETTA LANG, ESQ. TREVON WATSON, ESQ. [ ] TABITHA HAYNES, ESQ [ ] DEIDRE HARRIS, ESQ. [ ] AJEET BADESHA, ESQ. NO. 21-DCV-281993 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff 400TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS KIMBERLY MANNING AKA § KIMBERLY S MANNING, Defendant(s) EXHIBIT LIST FOR PLAINTIFE’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. KIMBERLY MANNING AKA KIMBERLY S MANNING EXHIBIT “A” Affidavit in Support of Judgment AMERICAN EXPRESS NATIONAL BANK V. KIMBERLY MANNING AKA KIMBERLY S MANNING KIMBERLY MANNING AKA KIMBERLY S MANNING Account ending in| AFFIDAVIT OF PLAINTIFF I, Raquel Hernandez, declare and state as follows: 1 Tam 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. > 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 KIMBERLY MANNING AKA KIMBERLY S MANNING 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 KIMBERLY MANNING AKA KIMBERLY S MANNING (“Defendant”). Those records reflect that Defendant opened an American Express credit card account, the current account number ending in 009 (the “Account”) in 10/2004. 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 $14,130.41, 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) 07/16/20 to 08/16/20 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 KIMBERLY MANNING AKA KIMBERLY S MANNING Account ending in; le 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. Dated: | | §|202~ By: Z Name: Raquel Hernandez Title: Assistant Custodian of Records STATE OF ARIZONA COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this S day of , 2022 (Seal) Notary DANIELA ARRIAGA ESPINOZA 2 Notary Public - Arizona y f § Y iB Maricopa County Commission = 614491 SEs WF My Comm. Expires Oct 8, 2025 ZATE TX_AENB_001 EXHIBIT A BICR AMERICAN} [EXPRESS Cardmember Agreement: Part 1 of 2 As of: 12/07/2010 — Platinum Delta SkyMiles® Issuer: American Express Bank, FSB Cardmember Name: Kimberly S Manga Credit Limit: $13,100 (Cash Advance Limit: $1,400) Accoun Rates and Fees Table CaaS Annual Percentage Rate (APR) for Purchases 13.24% This APR will vary with the market based on the Prime Rate. APR for Balance Transfers 13.24% for any balance transfer requests we may accept. This APR will vary with the market based on the Prime Rate. APR for Cash Advances 25.24% This APR will vary with the market based on the Prime Rate. Penalty APR and When it 27.24% Applies This APR will vary with the market based on the Prime Rate. This APR will apply to your account if you: 1) make one or more late payments; or make a payment that is returned. How Long Will the Penalty APR Apply? If the Penalty APR is applied, it A will apply for at least 6 months. We will review ‘our Account every 6 months. after the Penalty APR is applied. The Penalty PR will continue to apply until you have made timely eee with no returned payments during the 6 months being reviewer Paying Interest Your due date is at least 25 days after the close of each billing period. We will not charge you interest on purchases if you pay your entire balance by the due date each month. We will begin charging interest on cash advances and balance transfers on the transaction late. For Credit Card Tips from To learn more about factors to consider when applying for or using a credit card, the Federal Reserve Board visit th 1e website of the Federal Reser ve a at http wwii go 3 gd Annual Membership Fee $150 Transaction Fees Balance Transfer Either $5 or 3% of the amount of each transfer, whichever is greater. Cash Advance Either $5 or 3% of the amount of each cash advance, whichever is greater. Foreign Transaction 2.7% of each transaction after conversion to US dollars. Penalty Fees Late Payment Up to $35 Returned Payment Up to $35 Overlimit None How we calculate interest: We use the Average Daily Balance method (including new transactions). See the How we calculate interest section in Part 2. Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions. CMAEUAAO0000105 Page 1 of 11 How Rates and Fees Work APRs and DPRs to the Prime Rate (see Determining the Prime Rate in Part 2). The Daily Periodic Rate (DPR) is 1/365th of the APR, rounded to one ten-thousandth of a percentage point. Rate Description Prime + Margin APR DPR Purchase Prime + 9.99% 13.24% 0.0363% Balance Transfer Prime + 9.99% 13.24% 0.0363% Cash Advance Prime + 21.99% 25.24% 0.0691% Penalty Prime + 23.99% 27.24% 0,0746% Penalty APR for The penalty APR applies to new transactions if: If the Penalty APR applies to a balance, it will new transactions you do not pay at least the Minimum apply to charges added to that balance 15 or Payment Due by the Closing Date of the more days after we send you notice. billing period in which itis due, you do not pay at least the Minimum We will review your Account every 6 months after Payment Due by the Payment Due Date 2 the Penalty APR is applied. The Penalty APR will times in 12 billing periods, or continue to apply until you have made timely your payment is returned by your bank. payments with no returned payments during the 6 months being reviewed. Penalty APR for If you do not pay at least the Minimum Payment Due within 60 days after its Payment Due Date, we existing balances can apply the penalty APR to those balances it does not already apply to. After you pay on time for 6 billing periods in a row, the penalty APR will no longer apply to those balances (but it may still apply to other balances as described above). We add fees to a purchase balance, unless we tell you otherwise. Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. Late Payment Up to $35. If we do not receive the Minimum Payment Due by its Payment Due Date, the fee is $25. if this happens again within the next 6 billing periods, the fee is $35. However, the late fee will not exceed the Minimum Payment Due. Paying late may also result in a Penalty APR. See Penalty APR for new transactions and Penalty APR for existing balances above. Returned Payment Up to $35. If your payment is returned unpaid the first time we present it to your bank, the fee is $25. If this happens again within the next 6 billing periods, the fee is $35. However, the returned payment fee will not exceed the Minimum Payment Due on the last Payment Due Date before the payment is returned. A returned payment may also result in a Penalty APR. See Penalty APR for new transactions 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. Overlimit None. See Credit limit and cash advance limitin Part 2. Statement Copy $5 for each statement you request, except for the 3 most recent billing periods. Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so. Balance Transfer 3% of the transaction, with a minimum of $5. A different fee may apply if stated in a promotional offer or at the time of a transaction. This fee is a finance charge. We will add it to the same balance as the balance transfer. Cash Advance 3% of the withdrawal and other services you obtain (including any fee charged by the ATM operator), with a minimum of $5. We will add this fee to the cash advance balance. Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Converting charges made in a foreign currency in Part 2. . Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. CMAEUAA00000105 Page 2 of 11 AMERI EXPRESS: Supplement to the Cardmember Agreement How Your Reward Program Works Delta SkyMiles® Types of Card You can receive Delta SkyMiles® (miles) when you make purchases with your Delta SkyMiles® Credit Accounts. Card from American Express (Card Account). We offer Classic, Gold and Platinum Delta SkyMiles Credit Cards. The rewards are different for each type of Card Account. How you receive You receive 1 mile for each $1 of eligible Eligible purchases do NOT include: miles purchases on your Card Account. fees or interest charges, Eligible purchases are purchases for goods and balance transfers, services minus returns and other credits. cash advances, purchases of traveler s checks, purchases or reloading of reloadable prepaid cards, or purchases of any cash equivalents. How you receive You receive 1 additional mile for each $1 of eligible Delta vacation packages. additional miles purchases on your Card Account for the following other Delta services. purchases submitted to us using a Delta merchant You will NOT receive additional miles for: code: purchases of air travel on a Delta flight that are air travel on a Delta flight. part of all-inclusive air or sea tour packages. air travel on a Delta partner flight with a DL flight code. When we transfer We transfer the miles you receive to your Delta SkyMiles account after the end of the billing period in miles which you received them. When you will If the Minimum Payment Due is not paid by the Closing Date of the billing period in which it is due, you forfeit miles will forfeit the miles you received for eligible purchases during that billing period. You may reinstate those miles within the next 24 billing periods if your Card Account is not past due and you pay a $29 fee. How you can You may receive a Miles Boost award based on your eligible purchases for each calendar year. For receive a Miles each type of Card Account, the Miles Boost and the eligible purchases required to receive the award Boost™ each year are shown below. ype of Card Annual Eligible Purchases Classic $10,000 or more 2,500 Gold $15,000 $24,999 5,000 Gold $25,000 or more. 10,000 Platinum $25,000 $49,999 10,000 Medallion Qualifying Miles Platinum $50,000 or more 20,000 Medallion Qualifying Miles Some Miles Boost award restrictions A calendar year is from January 1 to December 31 You can receive only one Miles Boost award for regardless of when you open your Card Account. each Gard Account. In addition, if you have more This means in your first year as a Cardmember than one Platinum Card Account linked to the you may have fewer months to accumulate eligible same SkyMiles account, you are eligible for only purchases toward a Miles Boost award. one Medallion award each year. Restriction on You may receive Welcome Bonus Miles for opening a Card Account. If you open another Card Account Welcome Bonus with a higher Welcome Bonus Miles award, you will only get the difference between the first and Miles second awards. Other things you You will receive miles only for eligible purchases SkyMiles account. should know about intended for personal, family or household use. this program We may change the terms of this reward program Miles are subject to the Delta SkyMiles at our discretion. If you violate or abuse this reward Membership Guide and Program Rules. You program, you may forfeit some or all of your miles. should refer to that document for details on: how to redeem your miles, We are not responsible for miles after they are Delta s right to change its program terms, and credited to your SkyMiles account. We are also not other conditions that may apply to Deltas responsible for the actions of Delta on your program. CMAEUAPS0000115. Page 3 of 11 This page intentionally left blank. CMAEUAPS0000115 Page 4 of 11 AMERICAN] EXPRESS Cardmember Agreement: Part 2 of 2 CD 27738 Introduction About your This document together with Part 1 make up the ‘Any supplements or amendments are also part of Cardmember Agreement Cardmember Agreement (Agreement) for the the Agreement. When you use the Account (or you Account identified on page 1 of Part 1. sign or keep the card), you agree to the terms of the Agreement. Changing the Agreement We may change this Agreement, subject to to some terms may require 45 days advance notice, applicable law. We may do this in response to the and we will tell you in the notice if you have the right business, legal or compatitive environment. to reject a change. We cannot change certain terms We cannot increase the interest rate on existing during the first year of your Cardmembership. balances except in limited circumstances, Changes Words we use in We, us, and our mean the issuer shown on page 1 added to your Account, such as purchases, cash the Agreement of Part 1. You and your mean the person who advances, balance transfers, fees and interest applied for this Account and for whom we opened charges. A purchase is a charge for goods or the Account, You and your also mean anyone who services. A cash advance is a charge to get cash agrees to pay for this Account. You are the Basic or cash equivalents. A balance transfer is a charge Cardmember. You may request a card for an to pay an amount you owe on another credit card Additional Cardmember (see About Additional account, Cardmembers in Part 2). To payby a certain date means to send your Card means any card or other device that we issue payment so that we receive it and credit it to your to access your Account. A charge is any amount Account by that date (see About your payments in Part 2). About usin our card Using the card You may use the card to make purchases. At our ‘Account status or changes to your card number or discretion, we may permit you to make cash expiration date. You must notify the merchants advances or balance transfers. You cannot transfer directly if you want them to stop charging your balances from any other account issued by us or our Account. affiliates. Keep your card safe and don t let anyone else use You may arrange for certain merchants to charge it. If your card is lost or stolen or your Account is your Account at regular intervals. We may (but are being used without your permission, contact us right Not required to) tell these merchants about your away. You may not use your Account for illegal activities. Promise to pay You promise to pay all charges, including: charges you make, even if you do not present your card or sign for the transaction, charges that other people make if you let them use your Account, and charges that Additional Cardmembers make or permit others to make. Credit limit We assign a Credit Limitto your Account. We may You agree to manage your Account so that: and cash advance limit make part of your Credit Limit available for cash your Account balance {including fees and interest) advances (Cash Advance Lir i). There may also be is not more than your Credit Limit, and a limit on the amount you can withdraw from ATMs in your cash advance balance (including fees and ‘a given period. The Credit Limit and Cash Advance interest) is not more than your Cash Advance Limit are shown on page 1 of Part 1 and on each Limit, billing statement. We may approve charges that cause your Account We may increase or reduce your Credit Limit and balance to go over your Credit Limit. If we do this, Cash Advance Limit. We may do so even if you pay ‘we will not charge an overlimit fee. If we ask you to ‘on time and your Account is not in default. promptly pay the amount of your Account balance above your Credit Limit, you agree to do so. Declined transactions We may decline to authorize a charge. Reasons we We are not responsible for any losses you incur if may do this include suspected fraud and our we do not authorize a charge. And we are not assessment of your creditworthiness. This may occur responsible if any merchant refuses to accept the even if the charge would not cause you to go over card. your Credit Limit and your Account is not in default. CMAEUACM0000102 Page 5 of 11 About your payments When you must pay You must pay at least the Minimum Payment Due by at least the Minimum Payment Due in such time and the Payment Due Date. The Minimum Payment Due manner by the Payment Due Date shawn on your and Payment Due Date are shown on each billing billing statement. statement, Each statement also shows a Closing Date. The Each statement also states the time and manner by Closing Date is the last day of the billing period which you must make your payment for it to be covered by the statement. Each Closing Date is credited as of the same day it is received. For your about30 days after the previous statemient s Closing paymentto be considered on time, we must receive Date. How to make payments Make payments to us in U.S. dollars with: your billing statement. If we receive it after that time, a single check drawn on a U.S, bank, or ‘we will credit the payment on the day after we a single negotiable instrument clearable through receive it. the U.S. banking system, for example a money order, or your payment does not meet the above an electronic payment that can be cleared through requirements, there may be a delay in crediting your Account. This may resull in late fees and additional the U.S, banking system. interest charges (see How Rates and Fees Work on When making a payment by mail: page 2 of Part 1). make a separate payment for each account, If we decide to accept a payment made in a foreign mail your payment to the address shown on the payment coupon on your billing statement, and currency, we will choose a rate to convert your write your Account number on your check or payment into U.S. dollars, unless the law requires us negotiable instrument and include the payment touse a particular rate. coupon. Itwe process a late payment, a partial payment, or a payment marked with any restrictive language, that If your payment meets the above requirements, we will credit it to your Account as of the day we receive will have no effect on our rights and will not change it, as long as we receive it by the time disclosed in this Agreement. How we apply payments. Your Account may have balances with different After the Minimum Payment Due has been paid, and credits interest rates. For example, purchases may have a we apply your payments to the balance with the lower interest rate than cash advances. If your highest interest rate, and then to balances with Account has balances with different interest rates, lower interest rates. here is how we generally apply payments in a billing period: In most cases, we apply a credit to the same balance as the related charge. For example, We apply your payments, up to the Minimum Payment Due, first to the balance with the lowest apply a credit for a purchase to the purchase balance. We may apply payments and credits within interest rate, and then to balances with higher balances, and among balances with the same interest rates. interest rate, in any order we choose. About your imum Payment Due How we calculate your To calculate the imum Payment Due for each Minimum Payment Due statement, we start with the highestof the following three amounts: ie (1) 2% of the New Balance (excluding late fees on ei the statement); or on (2) interest charged on the statement plus 1% of 90) Q a the New Balance (excluding late fees and interest on the statement), not to exceed 4% of the New Balance; (3) $15. Then we add late fees on the statement, round to the nearest dollar, and add any amount past due. However, your Minimum Payment Due will not exceed your New Balance. Adjusting your Ifyou regularly pay more than the Minimum Payment Due described above, we may adjust it in future Minimum Payment Due billing periods. This may let you make a smaller minimum payment from time to time. But if you then do not regularly pay more than the Minimum Payment Due described above, we will stop adjusting it and return to the formula above. If we start or stop adjusting your Minimum Payment Due, we will do so for at least six billing periods in a row. To adjust the Minimum Payment Due, we will not exclude late fees from (1) and not add 1% of the New Balance in (2). Then, if (2) is the highest (but less than 4% of the New Balance), we will add $15. If we do the adjustment, we will not include any new late fees in the Minimum Payment Due. continued on next page... CMAEUACM0000102 Page 6 of 11 AMERICAN] [EXPRESS ..continued from previous page We will do this if over six billing periods the sum of your payments is more than the sum of the Minimum Payments Due (not adjusted, except any amount past due ie counted only in the first of those six periods). We will also make the adjustment if over six billing periods the sum of the Minimum Payments Due (not adjusted) is not more than $80 and equals the sum of your payments. However, we will not make the adjustment if the sum of Minimum Payments Due is zero and we did not adjust the Minimum Payment Due the last time it was not zero. About interest charges When we charge interest We charge interest beginning on the date of each transaction. You can avoid paying interest on purchases as described below. However, you cannot avoid paying interest on cash advances and balance transfers. If you pay the New Balance on every statement by by the Payment Due Date, we will not charge the Payment Due Date, we will not charge interest interest on purchases from the date of your on purchases.