Preview
NO. 21-DCV-280580
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff §
268TH JUDICIAL DISTRICT
Vv.
FORT BEND COUNTY, TEXAS
ASSAN ARKAIFIE,
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Assan
Arkaifie, 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 433.
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.
4. 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. Jd.
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).
7. 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, Discover 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 Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Assan Arkaifie, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$17,916.04 minus any payments received after filing this litigation, and
Post-judgment interest on said sums from the date of Judgment until paid at 5%
which is the legal rate per annum under §304.004, TEX. FINANCE CODE.
Costs of this proceeding in the amount of $401.81.
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. Hane
[WJOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
Thereby certify that on the 2 day of August, 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
[v] First-Class Mail
[ ] E-Service
[ ] Certified Mail
ASSAN ARKAIFIE
3010 CLEAR WATER PARK DR
KATY, TX 77450
Hane
[V/JOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ
[ ] TABITHA HAYNES, ESQ
[ ] AJEET BADESHA, ESQ.
NO. 21-DCV-280580
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 268TH JUDICIAL DISTRICT
v. §
§ FORT BEND COUNTY, TEXAS
ASSAN ARKAIFIE, §
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
DISCOVER BANK V. ASSAN ARKAIFIE
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. ASSAN ARKAIFIE
ACCOUNT NUMBER:
BALANCE: $17,916.04
CARDMEMBER (S): ASSAN ARKAIFIE
STATE OF OHIO
COUNTY OF FRANKLIN
Abigail Hewett, personally appeared before me, on this day and after being duly sworn, according to law, and
upon my oath and states as follows:
Iam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB
SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware
State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account
records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard
to payments owed on those accounts.
This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account
against the Cardmember(s).
In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records
regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS
INC. maintains these records in the ordinary course of its business, and the records are updated with
information on events (such as charges and payments on the account) by individuals with personal knowledge
of those events or by automated processes that track such events at or near the time that the events occur. The
same systems that record this information also generate periodic statements that are sent to Discover
Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping
systems contain information about which version of Discover Bank’s terms and conditions has been
communicated to an account holder and accepted by an account holder through the use of his or her Discover
Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the
account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by
DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said
account and whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that
account statements were generated, such statements were either provided to the Cardmember(s)
electronically or mailed to the Cardmember(s) at the address maintained on file during that time period.
According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated
with the Cardmember(s) is/are:
3010 CLEAR WATER PARK DR
KATY, TX 77450-5758
The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover
Bank on the account.
The business records maintained by DISCOVER PRODUCTS INC. and described above show that the
Cardmember(s)’ account with Discover Bank is governed by terms and conditions referred to as “terms level
27K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS
INC.’s counsel in this case and is attached hereto as Exhibit A.
Exhibit B is a true and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to
ZW ARKAIFIE_1128829_1.5 V1.5
the Cardmember(s), retrieved from the record-keeping system described above.
Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s
record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account.
Exhibit C reflects the balance that includes any activity occurring on the account after the last statement
(Exhibit B).
DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department
of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in
active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to
query this system with respect to any account holder prior to initiating a collection action against that account
holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the
results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of
my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of
the United States.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
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ZWI_ARKAIFIE_1128829_ 1.5 V1.5
27 K CM.TL27K.LIN.O719
DISC@VER CARDMEMBER AGREEMENT
Agreement, including
Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part ofthis Agreement, Please read this
the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3.
ACCEPTANCE OF AGREEMENT
this Agreementif you or an Authorized User use the
You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept
‘Account. You may, however, reject the “Arbitration of Disputes” section as explained in that section,
CHANGES TO YOUR AGREEMENT
give you
The rates, fees and terms of this Agreement may change from tine to time, We may add or delete any term to this Agreement. If required by law, we will
advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law.
USING YOUR ACCOUNT
Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use. it for illegal transactions.
Authorized
Authorized Users You may request additional Cards for Authorized Users to make transactions on your Account. You must notify us if you wishto cancel the authority of an
Userto use your Account. You are responsible for all charges made by your Authorized Users,
Joint Accounts Hyour Account is a joint Account
+ each of you agrees to be liable individually and jointly for the entire amount owed on the Account; and
‘any notice we mail to an address provided by either of you for the Account ‘will serve as notice to both of you,
Checks if we provide you with Checks, we will tell you whetherwe will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay
any amount you owe us.
your Card,
Credit Authorizations ‘We may not authorize a transaction for security or other reasons, We will not be Tiable to you if we decline to authorize a transaction or if anyone refuses
Check or Account number.
Credit Lines ‘We will tell you what your Account credit fine is. You must keep your Account for Cash Advances, We may increase or decrease your Account credit line or your
balance below your Account credit lin, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available
paymentof the amount by which you exceed it, We may establish a lower credit line ‘ NA
This response reflects the individuals’ active dy salineasod on PBluty Status Date
ae By
vee
a
Left Active Duty Within 367 Days of Active Duty Status Date 2 =
‘Active Duty End Date ‘Service Component
se
NA aA a
A No =
This response reflects wherethe individual left active duty status within 367 days preceding the Adlive Duty Status Date
a
‘ & Jr =
“The Meriber of HisMer Unit Wes Nolifedof Fu I-Up to Active Duty on. 7a otDuty Status Date
5
-: ‘Order Notification Start Date “Order Notification End Date Status vice vice Component
C
aR
NA NA NO. NA
‘This response reflects whether the ind hor apr has.sind ‘arly nolifeation to report for active duty
< ee
Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of
the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and
Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
Wh hlN Serle
MichaelV. Sorrento, Director
Department of Defense - Manpower Data Center
400 Gigling Ra.
Seaside, CA 93955
The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility
Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems.
The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 3901 et seq, as amended) (SCRA) (formerly known as
the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of “does not possess any information indicating that the
individual is currently on active duty" responses, and has experienced only a small error rate. In the event the individual referenced above, or any family
member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the
protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service. Service contact
information can be found on the SCRA website's FAQ page (Q35) via this URL: https://scra.dmdc.osd.mil/scra/#/faqs. If you have evidence the person
was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked
against you. See 50 USC App. § 3921(c).
This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active
Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active
duty on the Active Duty Status Date.
More information on "Active Duty Status”
Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less
than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service
authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the
President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the
unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve
Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S.
Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps).
Coverage Under the SCRA is Broader in Some Cases
Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be
reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods.
Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1).
Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website
certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service.
Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not
actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA.
extend beyond the last dates of active duty.
Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA
are protected
WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing
erroneous information will cause an erroneous certificate to be provided.
Preview
NO. 21-DCV-280580 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 268TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS ASSAN ARKAIFIE, Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Assan Arkaifie, 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 433. 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. 4. 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. Jd. 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). 7. 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, Discover 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 Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Assan Arkaifie, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $17,916.04 minus any payments received after filing this litigation, and Post-judgment interest on said sums from the date of Judgment until paid at 5% which is the legal rate per annum under §304.004, TEX. FINANCE CODE. Costs of this proceeding in the amount of $401.81. 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. Hane [WJOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 [ ] AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE Thereby certify that on the 2 day of August, 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 [v] First-Class Mail [ ] E-Service [ ] Certified Mail ASSAN ARKAIFIE 3010 CLEAR WATER PARK DR KATY, TX 77450 Hane [V/JOHNETTA LANG, ESQ. [ ] TREVON WATSON, ESQ [ ] TABITHA HAYNES, ESQ [ ] AJEET BADESHA, ESQ. NO. 21-DCV-280580 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 268TH JUDICIAL DISTRICT v. § § FORT BEND COUNTY, TEXAS ASSAN ARKAIFIE, § 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 DISCOVER BANK V. ASSAN ARKAIFIE EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. ASSAN ARKAIFIE ACCOUNT NUMBER: BALANCE: $17,916.04 CARDMEMBER (S): ASSAN ARKAIFIE STATE OF OHIO COUNTY OF FRANKLIN Abigail Hewett, personally appeared before me, on this day and after being duly sworn, according to law, and upon my oath and states as follows: Iam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard to payments owed on those accounts. This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account against the Cardmember(s). In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS INC. maintains these records in the ordinary course of its business, and the records are updated with information on events (such as charges and payments on the account) by individuals with personal knowledge of those events or by automated processes that track such events at or near the time that the events occur. The same systems that record this information also generate periodic statements that are sent to Discover Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping systems contain information about which version of Discover Bank’s terms and conditions has been communicated to an account holder and accepted by an account holder through the use of his or her Discover Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmember(s) have made payments on that balance. According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that account statements were generated, such statements were either provided to the Cardmember(s) electronically or mailed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is/are: 3010 CLEAR WATER PARK DR KATY, TX 77450-5758 The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover Bank on the account. The business records maintained by DISCOVER PRODUCTS INC. and described above show that the Cardmember(s)’ account with Discover Bank is governed by terms and conditions referred to as “terms level 27K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached hereto as Exhibit A. Exhibit B is a true and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to ZW ARKAIFIE_1128829_1.5 V1.5 the Cardmember(s), retrieved from the record-keeping system described above. Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account. Exhibit C reflects the balance that includes any activity occurring on the account after the last statement (Exhibit B). DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to query this system with respect to any account holder prior to initiating a collection action against that account holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of the United States. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. (bead ms | tiech SUBSCRIBED TO AND SWORN TO before me wich -f) of Bb. 2021 Later 0. COO yniny a T 7 SEM, At Yvette A Benner Notary Public, State of Ohio 2 My Commission Expires xO May 24, 2022 EC ZWI_ARKAIFIE_1128829_ 1.5 V1.5 27 K CM.TL27K.LIN.O719 DISC@VER CARDMEMBER AGREEMENT Agreement, including Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part ofthis Agreement, Please read this the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3. ACCEPTANCE OF AGREEMENT this Agreementif you or an Authorized User use the You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept ‘Account. You may, however, reject the “Arbitration of Disputes” section as explained in that section, CHANGES TO YOUR AGREEMENT give you The rates, fees and terms of this Agreement may change from tine to time, We may add or delete any term to this Agreement. If required by law, we will advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law. USING YOUR ACCOUNT Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use. it for illegal transactions. Authorized Authorized Users You may request additional Cards for Authorized Users to make transactions on your Account. You must notify us if you wishto cancel the authority of an Userto use your Account. You are responsible for all charges made by your Authorized Users, Joint Accounts Hyour Account is a joint Account + each of you agrees to be liable individually and jointly for the entire amount owed on the Account; and ‘any notice we mail to an address provided by either of you for the Account ‘will serve as notice to both of you, Checks if we provide you with Checks, we will tell you whetherwe will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay any amount you owe us. your Card, Credit Authorizations ‘We may not authorize a transaction for security or other reasons, We will not be Tiable to you if we decline to authorize a transaction or if anyone refuses Check or Account number. Credit Lines ‘We will tell you what your Account credit fine is. You must keep your Account for Cash Advances, We may increase or decrease your Account credit line or your balance below your Account credit lin, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available paymentof the amount by which you exceed it, We may establish a lower credit line ‘ NA This response reflects the individuals’ active dy salineasod on PBluty Status Date ae By vee a Left Active Duty Within 367 Days of Active Duty Status Date 2 = ‘Active Duty End Date ‘Service Component se NA aA a A No = This response reflects wherethe individual left active duty status within 367 days preceding the Adlive Duty Status Date a ‘ & Jr = “The Meriber of HisMer Unit Wes Nolifedof Fu I-Up to Active Duty on. 7a otDuty Status Date 5 -: ‘Order Notification Start Date “Order Notification End Date Status vice vice Component C aR NA NA NO. NA ‘This response reflects whether the ind hor apr has.sind ‘arly nolifeation to report for active duty < ee Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. Wh hlN Serle MichaelV. Sorrento, Director Department of Defense - Manpower Data Center 400 Gigling Ra. Seaside, CA 93955 The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 3901 et seq, as amended) (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of “does not possess any information indicating that the individual is currently on active duty" responses, and has experienced only a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service. Service contact information can be found on the SCRA website's FAQ page (Q35) via this URL: https://scra.dmdc.osd.mil/scra/#/faqs. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. § 3921(c). This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date. More information on "Active Duty Status” Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps). Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1). Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA. extend beyond the last dates of active duty. Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided.