Preview
Filed
6/30/2022 12:57 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Salena Jasso
NO. 21-DCV-288498
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 434TH JUDICIAL DISTRICT
oa
§ FORT BEND COUNTY, TEXAS
TONY M PHAM, §
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), Tony M
Pham, 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 fii
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 y. 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. Id. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, 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), Tony M Pham, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of $20,839.49
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 $385.81.
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. LOA GEE
[ ]JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
[ ] DEIDRE HARRIS, ESQ.
State Bar Number 24058586
[{AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
Thereby certify that on the BO ay of June, 2022, this office served a true and correct copy of
the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the
below listed interested parties via
[“] First-Class Mail
[ ] E-Service
[ ] Certified Mail
TONY M PHAM
10306 CAROLYNDALE DR
RICHMOND, TX 77407
LEA e——
[ ] JOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ.
[ ] TABITHA HAYNES, ESQ.
[ ] DEIDRE HARRIS, ESQ.
[{ AJEET BADESHA, ESQ.
NO. 21-DCV-288498
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 434TH JUDICIAL DISTRICT
Vv.
§ FORT BEND COUNTY, TEXAS
TONY M PHAM, §
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. TONY M PHAM
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. TONY M PHAM
ACCOUNT NUMBER:
BALANCE: $20,839.49
CARDMEMBER (S): TONY M PHAM
STATE OF OHIO
COUNTY OF FRANKLIN
Danielle Grasso, 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:
10306 CAROLYNDALE DR.
RICHMOND, TX 77407-7930
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
28A.” 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
ZWI_PHAM_1292184_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.
Affian'
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SUBSCRIBED TO AND SWORN TO before me this 6 day of No U , 2021
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DISC@VER CARDMEMBER AGREEMENT
Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
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
You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the
Account, You may, however, reject the “Arbitration of Disputes” section as explained in that section.
CHANGES TO YOUR AGREEMENT
The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. if required by law, we will give you 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 Users You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized
User to use your Account, You are responsible for all charges made by your Authorized Users,
Joint Accounts If your 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 noticewe mail to an address provided by either of you for the Account will serve as notice to both of you.
Checks Hf 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.
Credit Authorizations We may not authorize a transaction for security or other reasons. We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card,
Check or Account number,
Credit Lines We will tell you what your Account credit line 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 line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available
payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days,
FEES (See your Pricing Schedule for Additional Fees)
Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will exceed the Minimum Payment Due that was due immediately prior to the date on
charge you a Late Fee, The fee is $29, if you were not charged a Late Fee during which the fee was assessed,
any of the prior six billing periods. Otherwise, the fee is $40, This fee will never
Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $40. This fee will never
charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on
re-submit it, The fee is $29 if you were not charged a Returned Payment Fee during which the payment was returned to us.
ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same
adding the number of percentage points thatwe specify to the Prime Rate, Variable calendar month that the Prime Rate changes. An increase in the APR will increase
APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due.
Penalty APR When It Applies and th indard
Each time that you do not pay the Minimum Payment Due by the Payment Due for all Pur wuld
Date we may:
* terminate any promotional APRs on new transactions; and We Will Notify You
increase your APRs for new transactions to Penalty APRs, We will notify you ofthe date a Penalty APR will take effect. The Penalty APR will
We will not apply a Penalty APR to Cash Advances. only apply to new transactions with a Transaction Date more than 14 days after we
provide the notice to you.
How It Affects Your Account
To determine the Penalty APR for a new transaction: We May Reduce It
We will review your Account from time to time as required by law to determine if
* We add up to 5 additional percentage points to the otherwise applicable APR.
any Penalty APR should be reduced.
¢ We set your Penalty APR based on your creditworthiness and other factors. These
factors include your current APRs and Account history.
MAKING PAYMENTS
Payment Instructions + You must pay in U.S, dollars, Please do not send cash, Sending cash is not We can accept late payments, partial payments or payments marked
allowed, All checks must be drawn on funds on deposit in the U.S, “payment in full” or with any other restrictive endorsement without losing
© You must pay us for all amounts due on your Account. This includes charges any of our rights under this Agreement.
made by Authorized Users. Ifa third party makes a payment on your Account and we return all or a part of such
* We may refuse to accept a payment in a foreign currency. If we do accept it, we iyment, then we may adjust your Account for any amount returned. We reserve the
will charge your Account our cost to convert it to U.S. dollars. Tight to defend ourselves against any demand to return funds we have received, and
‘may agreeto a compromise of the demanded amount as part of a settlement.
©2020 Discover Bank, Member FDIC Ae
MAKING PAYMENTS
Payment Instructions © We credit your payments in accordance with the terms contained on your Ifyou mail your payment to an address other than the address designated on
billing statement. your billing statement, there may be a delay in processing and crediting the
payment to your Account.
Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any fees for any debt protection product that you enrolled in on or after 2/1/2015;
time. Each billing period you must pay at least the Minimum Payment Due by the Interest Charges; and Late Fees.
Payment Due Date shown on your billing statement, The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed
will be any amount past due plus the greater of: your Account credit line, However, it will never exceed the New Balance. When
© $35; or we calculate the Minimum Payment Due, we may subtract from the New Balance
* 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period, The Minimum Payment
© $20, plus any of the following charges as shown on your billing statement: Due is rounded up to the nearest dollar.
How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us, In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
Tequired by applicable law. ‘APRs as of the date we credit your payment,
INTEREST CHARGES
How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily ¢ We make other adjustments (including those adjustments required in the “Paying
Charges—Di jalance balance” for each Transaction Category. Transaction Categories include standard Interest" section).
Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges
transactions) Balance Transfers. ‘© We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate. We do this for each day in the billing period. This gives us the interest
‘* We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide
first day of the billing period is your balance on the last day of your previous billing the APR that applies to the Transaction Category by 365,
period. * We add up all the daily interest charges, The sum is the total interest chargefor
‘* We add any interest charges accrued on the previous day's daily balance and the billing period.
any new transactions and fees. We add any new transactions or fees as of the How We Include Fees
later of the Transaction Date or the first day of the billing period in which the We add Balance Transfer Fees to the applicable Balance Transfer Transaction
transaction or fee posted to your Account. Category. We add Cash Advance Fees to the applicable Cash Advance Transaction
* We subtract any new credits and payments, Category. We add all other fees to the standard Purchase Transaction Category.
Paying Interest When Interest Charges Begin New Purchases. New Purchases are Purchases that first appear on the next billing
‘We begin to impose interest charges on a transaction, fee or interest charge from the statement, Interest will continue to accrue each day on Purchases that appeared on
day we add it to the daily balance. We continue to impose interest charges until you previous billing statements until you pay the New Balance in full and will be billed
pay the total amount you owe us. You can avoid paying interest on Purchases as in the next billing cycle.
described below. However, you cannot avoid paying interest on Balance Transfers or How We Apply Payments May Impact Your Grace Period
Cash Advances, Ifyou do not pay your New Balance in full each month, then, depending on the balance
How to Avoid Paying Interest on Purchases (“Grace Period") to which we apply your payment, you may not get a grace period on new Purchases,
If you pay the New Balance on your current billing statement by the Payment Due
Date shown on that billing statement, we will not impose interest charges on
OTHER IMPORTANT INFORMATION
Default You are in default if: © you fail to comply with the terms of this Agreement or any Agreement with us or
© you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding
© we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction.
obligations to us; Ifyou are in default, we may declare the entire balance of your Account immediately
* you die or are legally declared incompetent or incapacitated; due and payable without notice,
Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection
costs, and fees and costs of any appeal,
Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account, You assign
to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing,
Automatic Account You may set up automatic billing or store your Account information with an Affiliate, merchant, wallet provider, or other third party ("Permitted Party"). If you do,
Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account.
if your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our
discretion. You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing
or Account updates,
Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. Contact us + bow we safeguard its confidentiality and security;
or visit Discover.com if you would like a copy, Please read it carefully, It summarizes: ¢ when it may be shared with others; and
* the personal information we collect; * how you can limit our sharing of this information,
Credit Reporting Agency You authorize us to get information from credit reporting agencies and other sources creditors. We normally report to credit reporting agencies each month. If you believe
Information for servicing or review of your Account, collection and any other use permitted by that information we reported is inaccurate or incomplete, please write us at Discover,
aw, including to consider you for other products and services. We may report the P.O. Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address,
status and payment history of your Account to credit reporting agencies and other home phone number and Account number,
2
OTHER IMPORTANT INFORMATION
Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized phone number you provide. You agrce that the Authorized Parties may contact you
with You Parties") may contact you, including calls, text message or email, about any current using an automatic dialer or pre-recorded voice message. If you no longer wish to be
or future accounts or applications, with respect to all products you have with us contacted on your cell phone by an automated dialer or pre-recorded voice message,
at any phone number or email (i) you have provided to us, (i) from which you you must provide us written notice cancelling your consent at this address: Discover
contacted us, ot (ii) which we obtained and believe we can reach you at, even if Bank, P.0, Box 30937, Salt Lake City, UT 84130-0937, The written notice must include:
your phone provider may charge you message and data rates for calls or texts, You your name, mailing address, the last four digits of your Account number and the
agree that the Authorized Parties may record or monitor any calls between you and specific cell phone number(s) for which you would like to cancel your consent to be
the Authorized Parties, You agreeto notify us if you change or discontinue using any contacted by an automated dialer or pre-recorded voice message.
Unauthorized Use You must notify us immediately if:
* your Card is lost or stolen; or
* you believe someone is using your Account or a Card without your permission,
Cancellation of * You may cancel your Account. You will remain responsible for any amount you « We may cancel, suspend or not renew your Account at any time without notice,
Your Account ‘owe us under this Agreement,
Any joint Account holder may cancel a joint Account, However, both of you will
remain responsible for paying all amounts owed,
Purchases and Cash Advances If you make a Purchase or Cash Advance in a foreign currency, we will convert it to the country and currency in which the transaction is made, We use the rate in effect
in Foreign Currencies U.S. dollars usinga ratewe choose. This rate will either
be a government-mandated on the conversion date for the transaction. This rate may be different than the rate
Tate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction,
Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the
statute of limitations of the state where the lawsuit i filed will epply, without regard to that state's conflicts of laws principles or its "borrowing statute.”
Severability Exceptas set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect.
Enforcing this Agreement We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving anyof them.
Assignment of Account We may sell, assign or transfer your Account or any portion of it without notice to you. You may not sell, assign or transfer your Account without first obtaining our prior
written consent,
CONTACT US
Unless we tell you otherwise, you can notify us: # by phone at 1-800 DISCOVER (1-800-347-2683) or in writing to Discover, P.0. Box 30943, Salt Lake City, UT 84130-0943,
When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number,
DEFINITIONS
“Account” means your Discover card account, “Check” means any checkwe send to you to access your Account,
“Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule’” which lists the APRs that
“Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information,
notify us or not, “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
“Balance Transfer” means a balance transferred from another creditor to your Account. section of the online Wail Street Journal (www.wsj.com) on the last business day of the month.
“Card” means any one or more Discover cards issued to you or someone else with your authorization, “Purchase” means the use of your Account to purchase or lease goods or services at
“Cash Advance” means the use of your Account for: participating merchants.
© obtaining cash from participating automated teller machines, financial institutions or other “We,” “us” and “our” refer to Discover Bank, the issuer of your Card,
locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable
© online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or under this Agreement.
similar items. “Transaction Date” means the date shown on your billing statement for a transaction or fee.
ARBITRATION
Agreement to Arbitrate. In the event of a dispute between you CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN Your Right to Go To Small Claims Court. We will not choose
and us arising out of or relatingto this Account or the relationships INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY to arbitrate any individual Claim you bring in small Claims court
tesulting from this Account or any other dispute between you or JOIN OR CONSOLIDATE CLAIMS |N ARBITRATION BY OR AGAINST or your state's equivalent court. However, if such a Claim is
us, including, for example, a dispute based on a federal or state OTHER CARDMEMBERS, OR LIT:GATE IN COURT OR ARBITRATE transferred, removed or appealed to a different court, we may then
statute or local ordinance (“Claim”), either you or we may choose ‘ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR choose to arbitrate.
to resolve the Claim by binding arbitration, as described below, IN A PRIVATE ATTORNEY GENERAL CAPACITY. Governing Law and Rules. This arbitration agreement is
instead of in court. Any Claim (except for a Claim challenging the The arbitrator may award injunctive relief only in favor of the governed by the Federal Arbitration Act ("FAA"), Arbitration must
validity or enforceability of this arbitration agreement, including individual party seeking relief and only to the extent necessary proceed only with the American Arbitration Association ("AAA"),
the Class Action Waiver) may be resolved by binding arbitration to provide relief warranted by that party's individual Claim, The The rules for the arbitration will be those in this arbitration
if either side requests it. THIS MEANS IF EITHER YOU OR WE arbitrator may not award class, representative or public injunctive agreement and the procedures of the AAA, but the rules in this
CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO telief, If a court decides that applicable law precludes enforcement arbitration agreement will be followed if there is disagreement
LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO of any of this paragraph's limitations as to a particular Claim between the agreement and the AAA's procedures. If the AAA's
DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION, for relief, then after all appeals from that decision have been procedures change after the Claim is filed, the procedures in effect
Even if all parties have opted to litigate a Claim in court, you or exhausted, that Claim (and only that Claim) must be severed from when the Claim was filed will apply.
we may elect arbitration with respect to any Claim made by a new the arbitration and may be brought in court. Only a court, and not For a copy of the AAA's procedures, to file a Claim or for other
party or any new Claims later asserted in that lawsuit. an arbitrator, shall determine the validity, scope, and effect of the information, please contact the AAA at 1101 Laurel Oak Rd.,
Class Action Waiver, Voorhees, NJ 08043, www.adr.org (1-877-495-4185),
3.
ARBITRATION
If the AAA is completely unavailable, and if you and we cannot The appeal must be filed with AAA not later than 30 days after employees; any third party co-defendant of a Claim subject to this
agree on a substitute, then either you or we may request that a the original award issues. The appealing party pays all appellate arbitration agreement; and all joint Accountholders and Authorized
court with jurisdiction appoint a substitute. costs unless the appellate pane! determines otherwise as part of Users of your Account(s),
Fees and Costs. If you wish to begin arbitration against us but its award, Survival of this Agreement. This arbitration agreement shall
you cannot afford to pay the AAA's or arbitrator's costs, we will Claim Notice and Special Payment. if you have a Claim, before survive:
advance those costs if you ask us in writing, Any request like this, initiating an arbitration proceeding, you may give us written notice © closing of your Account;
should be sent to Discover, P.0. Box 30421, Salt Lake City, UT of the Claim (“Claim Notice”) at least 30 days before initiating the © voluntary payment of your Account or any part of it;
84130-0421. If you lose the arbitration, the arbitrator will decide arbitration proceeding. The Claim Notice must include your name,
whether you must reimburse us for money we advanced for you any legal proceedings to collect money you owe;
address, and account number and explain in reasonable detail the
for the arbitration. If you win the arbitration, we will not ask for nature of the Claim and any supporting facts.
Any Claim Notice shall any bankruptcy by you; and
reimbursement of money we advanced, Additionally, if you win the be sent to us at Discover, P.0. Box 794, Deerfield, It 60015 (or such © any sale by us of your Account,
arbitration, the arbitrator may decide that you are entitled to be other address as we shall subsequently provide to you). If, and only You Have the Right to Reject Arbitration for this Account,
reimbursed your reasonable attorneys fees and costs (if actually if, (1) you submit a Claim Notice in accordance with this agreement You may reject the arbitration agreement but only if we
paid by you). on your own behalf (and not on behalf of any other party); and (2) receive from you a written notice of rejection within
Hearings and Decisions. Arbitration hearings will take place in an arbitrator, after finding in your favor in any respect on the merits 30 days of your receipt of the Card after your Account is
the federal judicial district where you live. A single arbitrator will of your Claim, issues you an
Preview
Filed 6/30/2022 12:57 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Salena Jasso NO. 21-DCV-288498 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 434TH JUDICIAL DISTRICT oa § FORT BEND COUNTY, TEXAS TONY M PHAM, § 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), Tony M Pham, 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 fii 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 y. 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. Id. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, 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), Tony M Pham, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $20,839.49 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 $385.81. 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. LOA GEE [ ]JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 [ ] DEIDRE HARRIS, ESQ. State Bar Number 24058586 [{AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE Thereby certify that on the BO ay of June, 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via [“] First-Class Mail [ ] E-Service [ ] Certified Mail TONY M PHAM 10306 CAROLYNDALE DR RICHMOND, TX 77407 LEA e—— [ ] JOHNETTA LANG, ESQ. [ ] TREVON WATSON, ESQ. [ ] TABITHA HAYNES, ESQ. [ ] DEIDRE HARRIS, ESQ. [{ AJEET BADESHA, ESQ. NO. 21-DCV-288498 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 434TH JUDICIAL DISTRICT Vv. § FORT BEND COUNTY, TEXAS TONY M PHAM, § 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. TONY M PHAM EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. TONY M PHAM ACCOUNT NUMBER: BALANCE: $20,839.49 CARDMEMBER (S): TONY M PHAM STATE OF OHIO COUNTY OF FRANKLIN Danielle Grasso, 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: 10306 CAROLYNDALE DR. RICHMOND, TX 77407-7930 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 28A.” 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 ZWI_PHAM_1292184_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. Affian' A SUBSCRIBED TO AND SWORN TO before me this 6 day of No U , 2021 ow ant PBIAL My M, KS LAC Yvette A Benner 14 Notary Public, State of Ohio == My Commission Expires Sy CS May 21, 2022 “AT; NS HTT WS ZWI_PHAM_1292184_1.5 V1.5 CM.TL28AG.LIN.0620 DISC@VER CARDMEMBER AGREEMENT Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including 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 You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the Account, You may, however, reject the “Arbitration of Disputes” section as explained in that section. CHANGES TO YOUR AGREEMENT The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. if required by law, we will give you 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 Users You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized User to use your Account, You are responsible for all charges made by your Authorized Users, Joint Accounts If your 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 noticewe mail to an address provided by either of you for the Account will serve as notice to both of you. Checks Hf 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. Credit Authorizations We may not authorize a transaction for security or other reasons. We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card, Check or Account number, Credit Lines We will tell you what your Account credit line 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 line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days, FEES (See your Pricing Schedule for Additional Fees) Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will exceed the Minimum Payment Due that was due immediately prior to the date on charge you a Late Fee, The fee is $29, if you were not charged a Late Fee during which the fee was assessed, any of the prior six billing periods. Otherwise, the fee is $40, This fee will never Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $40. This fee will never charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on re-submit it, The fee is $29 if you were not charged a Returned Payment Fee during which the payment was returned to us. ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same adding the number of percentage points thatwe specify to the Prime Rate, Variable calendar month that the Prime Rate changes. An increase in the APR will increase APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due. Penalty APR When It Applies and th indard Each time that you do not pay the Minimum Payment Due by the Payment Due for all Pur wuld Date we may: * terminate any promotional APRs on new transactions; and We Will Notify You increase your APRs for new transactions to Penalty APRs, We will notify you ofthe date a Penalty APR will take effect. The Penalty APR will We will not apply a Penalty APR to Cash Advances. only apply to new transactions with a Transaction Date more than 14 days after we provide the notice to you. How It Affects Your Account To determine the Penalty APR for a new transaction: We May Reduce It We will review your Account from time to time as required by law to determine if * We add up to 5 additional percentage points to the otherwise applicable APR. any Penalty APR should be reduced. ¢ We set your Penalty APR based on your creditworthiness and other factors. These factors include your current APRs and Account history. MAKING PAYMENTS Payment Instructions + You must pay in U.S, dollars, Please do not send cash, Sending cash is not We can accept late payments, partial payments or payments marked allowed, All checks must be drawn on funds on deposit in the U.S, “payment in full” or with any other restrictive endorsement without losing © You must pay us for all amounts due on your Account. This includes charges any of our rights under this Agreement. made by Authorized Users. Ifa third party makes a payment on your Account and we return all or a part of such * We may refuse to accept a payment in a foreign currency. If we do accept it, we iyment, then we may adjust your Account for any amount returned. We reserve the will charge your Account our cost to convert it to U.S. dollars. Tight to defend ourselves against any demand to return funds we have received, and ‘may agreeto a compromise of the demanded amount as part of a settlement. ©2020 Discover Bank, Member FDIC Ae MAKING PAYMENTS Payment Instructions © We credit your payments in accordance with the terms contained on your Ifyou mail your payment to an address other than the address designated on billing statement. your billing statement, there may be a delay in processing and crediting the payment to your Account. Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any fees for any debt protection product that you enrolled in on or after 2/1/2015; time. Each billing period you must pay at least the Minimum Payment Due by the Interest Charges; and Late Fees. Payment Due Date shown on your billing statement, The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed will be any amount past due plus the greater of: your Account credit line, However, it will never exceed the New Balance. When © $35; or we calculate the Minimum Payment Due, we may subtract from the New Balance * 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period, The Minimum Payment © $20, plus any of the following charges as shown on your billing statement: Due is rounded up to the nearest dollar. How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us, In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower Tequired by applicable law. ‘APRs as of the date we credit your payment, INTEREST CHARGES How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily ¢ We make other adjustments (including those adjustments required in the “Paying Charges—Di jalance balance” for each Transaction Category. Transaction Categories include standard Interest" section). Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges transactions) Balance Transfers. ‘© We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate. We do this for each day in the billing period. This gives us the interest ‘* We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide first day of the billing period is your balance on the last day of your previous billing the APR that applies to the Transaction Category by 365, period. * We add up all the daily interest charges, The sum is the total interest chargefor ‘* We add any interest charges accrued on the previous day's daily balance and the billing period. any new transactions and fees. We add any new transactions or fees as of the How We Include Fees later of the Transaction Date or the first day of the billing period in which the We add Balance Transfer Fees to the applicable Balance Transfer Transaction transaction or fee posted to your Account. Category. We add Cash Advance Fees to the applicable Cash Advance Transaction * We subtract any new credits and payments, Category. We add all other fees to the standard Purchase Transaction Category. Paying Interest When Interest Charges Begin New Purchases. New Purchases are Purchases that first appear on the next billing ‘We begin to impose interest charges on a transaction, fee or interest charge from the statement, Interest will continue to accrue each day on Purchases that appeared on day we add it to the daily balance. We continue to impose interest charges until you previous billing statements until you pay the New Balance in full and will be billed pay the total amount you owe us. You can avoid paying interest on Purchases as in the next billing cycle. described below. However, you cannot avoid paying interest on Balance Transfers or How We Apply Payments May Impact Your Grace Period Cash Advances, Ifyou do not pay your New Balance in full each month, then, depending on the balance How to Avoid Paying Interest on Purchases (“Grace Period") to which we apply your payment, you may not get a grace period on new Purchases, If you pay the New Balance on your current billing statement by the Payment Due Date shown on that billing statement, we will not impose interest charges on OTHER IMPORTANT INFORMATION Default You are in default if: © you fail to comply with the terms of this Agreement or any Agreement with us or © you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding © we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction. obligations to us; Ifyou are in default, we may declare the entire balance of your Account immediately * you die or are legally declared incompetent or incapacitated; due and payable without notice, Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal, Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account, You assign to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing, Automatic Account You may set up automatic billing or store your Account information with an Affiliate, merchant, wallet provider, or other third party ("Permitted Party"). If you do, Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account. if your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our discretion. You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing or Account updates, Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. Contact us + bow we safeguard its confidentiality and security; or visit Discover.com if you would like a copy, Please read it carefully, It summarizes: ¢ when it may be shared with others; and * the personal information we collect; * how you can limit our sharing of this information, Credit Reporting Agency You authorize us to get information from credit reporting agencies and other sources creditors. We normally report to credit reporting agencies each month. If you believe Information for servicing or review of your Account, collection and any other use permitted by that information we reported is inaccurate or incomplete, please write us at Discover, aw, including to consider you for other products and services. We may report the P.O. Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address, status and payment history of your Account to credit reporting agencies and other home phone number and Account number, 2 OTHER IMPORTANT INFORMATION Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized phone number you provide. You agrce that the Authorized Parties may contact you with You Parties") may contact you, including calls, text message or email, about any current using an automatic dialer or pre-recorded voice message. If you no longer wish to be or future accounts or applications, with respect to all products you have with us contacted on your cell phone by an automated dialer or pre-recorded voice message, at any phone number or email (i) you have provided to us, (i) from which you you must provide us written notice cancelling your consent at this address: Discover contacted us, ot (ii) which we obtained and believe we can reach you at, even if Bank, P.0, Box 30937, Salt Lake City, UT 84130-0937, The written notice must include: your phone provider may charge you message and data rates for calls or texts, You your name, mailing address, the last four digits of your Account number and the agree that the Authorized Parties may record or monitor any calls between you and specific cell phone number(s) for which you would like to cancel your consent to be the Authorized Parties, You agreeto notify us if you change or discontinue using any contacted by an automated dialer or pre-recorded voice message. Unauthorized Use You must notify us immediately if: * your Card is lost or stolen; or * you believe someone is using your Account or a Card without your permission, Cancellation of * You may cancel your Account. You will remain responsible for any amount you « We may cancel, suspend or not renew your Account at any time without notice, Your Account ‘owe us under this Agreement, Any joint Account holder may cancel a joint Account, However, both of you will remain responsible for paying all amounts owed, Purchases and Cash Advances If you make a Purchase or Cash Advance in a foreign currency, we will convert it to the country and currency in which the transaction is made, We use the rate in effect in Foreign Currencies U.S. dollars usinga ratewe choose. This rate will either be a government-mandated on the conversion date for the transaction. This rate may be different than the rate Tate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction, Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit i filed will epply, without regard to that state's conflicts of laws principles or its "borrowing statute.” Severability Exceptas set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect. Enforcing this Agreement We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving anyof them. Assignment of Account We may sell, assign or transfer your Account or any portion of it without notice to you. You may not sell, assign or transfer your Account without first obtaining our prior written consent, CONTACT US Unless we tell you otherwise, you can notify us: # by phone at 1-800 DISCOVER (1-800-347-2683) or in writing to Discover, P.0. Box 30943, Salt Lake City, UT 84130-0943, When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number, DEFINITIONS “Account” means your Discover card account, “Check” means any checkwe send to you to access your Account, “Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule’” which lists the APRs that “Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information, notify us or not, “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates “Balance Transfer” means a balance transferred from another creditor to your Account. section of the online Wail Street Journal (www.wsj.com) on the last business day of the month. “Card” means any one or more Discover cards issued to you or someone else with your authorization, “Purchase” means the use of your Account to purchase or lease goods or services at “Cash Advance” means the use of your Account for: participating merchants. © obtaining cash from participating automated teller machines, financial institutions or other “We,” “us” and “our” refer to Discover Bank, the issuer of your Card, locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable © online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or under this Agreement. similar items. “Transaction Date” means the date shown on your billing statement for a transaction or fee. ARBITRATION Agreement to Arbitrate. In the event of a dispute between you CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN Your Right to Go To Small Claims Court. We will not choose and us arising out of or relatingto this Account or the relationships INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY to arbitrate any individual Claim you bring in small Claims court tesulting from this Account or any other dispute between you or JOIN OR CONSOLIDATE CLAIMS |N ARBITRATION BY OR AGAINST or your state's equivalent court. However, if such a Claim is us, including, for example, a dispute based on a federal or state OTHER CARDMEMBERS, OR LIT:GATE IN COURT OR ARBITRATE transferred, removed or appealed to a different court, we may then statute or local ordinance (“Claim”), either you or we may choose ‘ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR choose to arbitrate. to resolve the Claim by binding arbitration, as described below, IN A PRIVATE ATTORNEY GENERAL CAPACITY. Governing Law and Rules. This arbitration agreement is instead of in court. Any Claim (except for a Claim challenging the The arbitrator may award injunctive relief only in favor of the governed by the Federal Arbitration Act ("FAA"), Arbitration must validity or enforceability of this arbitration agreement, including individual party seeking relief and only to the extent necessary proceed only with the American Arbitration Association ("AAA"), the Class Action Waiver) may be resolved by binding arbitration to provide relief warranted by that party's individual Claim, The The rules for the arbitration will be those in this arbitration if either side requests it. THIS MEANS IF EITHER YOU OR WE arbitrator may not award class, representative or public injunctive agreement and the procedures of the AAA, but the rules in this CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO telief, If a court decides that applicable law precludes enforcement arbitration agreement will be followed if there is disagreement LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO of any of this paragraph's limitations as to a particular Claim between the agreement and the AAA's procedures. If the AAA's DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION, for relief, then after all appeals from that decision have been procedures change after the Claim is filed, the procedures in effect Even if all parties have opted to litigate a Claim in court, you or exhausted, that Claim (and only that Claim) must be severed from when the Claim was filed will apply. we may elect arbitration with respect to any Claim made by a new the arbitration and may be brought in court. Only a court, and not For a copy of the AAA's procedures, to file a Claim or for other party or any new Claims later asserted in that lawsuit. an arbitrator, shall determine the validity, scope, and effect of the information, please contact the AAA at 1101 Laurel Oak Rd., Class Action Waiver, Voorhees, NJ 08043, www.adr.org (1-877-495-4185), 3. ARBITRATION If the AAA is completely unavailable, and if you and we cannot The appeal must be filed with AAA not later than 30 days after employees; any third party co-defendant of a Claim subject to this agree on a substitute, then either you or we may request that a the original award issues. The appealing party pays all appellate arbitration agreement; and all joint Accountholders and Authorized court with jurisdiction appoint a substitute. costs unless the appellate pane! determines otherwise as part of Users of your Account(s), Fees and Costs. If you wish to begin arbitration against us but its award, Survival of this Agreement. This arbitration agreement shall you cannot afford to pay the AAA's or arbitrator's costs, we will Claim Notice and Special Payment. if you have a Claim, before survive: advance those costs if you ask us in writing, Any request like this, initiating an arbitration proceeding, you may give us written notice © closing of your Account; should be sent to Discover, P.0. Box 30421, Salt Lake City, UT of the Claim (“Claim Notice”) at least 30 days before initiating the © voluntary payment of your Account or any part of it; 84130-0421. If you lose the arbitration, the arbitrator will decide arbitration proceeding. The Claim Notice must include your name, whether you must reimburse us for money we advanced for you any legal proceedings to collect money you owe; address, and account number and explain in reasonable detail the for the arbitration. If you win the arbitration, we will not ask for nature of the Claim and any supporting facts. Any Claim Notice shall any bankruptcy by you; and reimbursement of money we advanced, Additionally, if you win the be sent to us at Discover, P.0. Box 794, Deerfield, It 60015 (or such © any sale by us of your Account, arbitration, the arbitrator may decide that you are entitled to be other address as we shall subsequently provide to you). If, and only You Have the Right to Reject Arbitration for this Account, reimbursed your reasonable attorneys fees and costs (if actually if, (1) you submit a Claim Notice in accordance with this agreement You may reject the arbitration agreement but only if we paid by you). on your own behalf (and not on behalf of any other party); and (2) receive from you a written notice of rejection within Hearings and Decisions. Arbitration hearings will take place in an arbitrator, after finding in your favor in any respect on the merits 30 days of your receipt of the Card after your Account is the federal judicial district where you live. A single arbitrator will of your Claim, issues you an