Preview
Filed
8/2/2022 9:44 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Dreamy Jose
NO. 21-DCV-288066
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff §
400TH JUDICIAL DISTRICT
a
FORT BEND COUNTY, TEXAS
TOMICHAN I CHACKO,
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), Tomichan I
Chacko, 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
avoun
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 8.W.3d 197 (Tex. App. - Houston [1S] 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. Id.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 8.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), Tomichan I Chacko, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of $20,233.33
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
Gr
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE_Litigation@ZwickerPC.com
(281) 494-030 Q
(281) 494
BY.
[ ]|JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
€4DEIDRE HARRIS, ESQ.
State Bar Number 24058586
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
I hereby certify that on the and day of fNgu tt /Wilthis 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
PAUL CULPEPPER
P.O. BOX 1413
SUGAR LAND, TX 77487
PAUL@CULPEPPER-LAW.COM
[ ]JOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ.
[ ] TABITHA HAYNES, ESQ.
PFPDEIDRE HARRIS, ESQ.
[ ] AJZEET BADESHA, ESQ.
NO. 21-DCV-288066
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff §
§ 400TH JUDICIAL DISTRICT
v.
§ FORT BEND COUNTY, TEXAS
TOMICHAN I CHACKO, §
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. TOMICHAN I CHACKO
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. TOMICHAN I CHACKO
ACCOUNT NUMBER:
BALANCE: $20,233.33
CARDMEMBER (S): TOMICHAN I CHACKO
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:
11818 BRIGHTON LN
MEADOWS PLACE, 1X 77477-1729
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_CHACKO_1293701_1.5 ViS
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 my knowledge.
Affiant
SUBSCRIBED TO AND SWORN TO before me this q day of No V; , 2021.
e)
@. QUAL
| Matt
eh Mitiy,,
»
So
aN LON % Yvette A Benner
Ae
Notary Public, State of Ohio
=
== My Commission Expires
ee. ee CS May 21, 2022
4 NS
fey 4334 att)
ZWI_CHACKO_1293701_1.5 V15
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 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 whether
we 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 thatwe 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 or
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
Each time that you do not pay the Minimum Payment Due by the Payment Due
Date we may: og
© terminate any promotional APRs on new transactions; and ify You
increase your APRs for new transactions to Penalty APRs. Me will noti ify you of the date a Penalty APR will take effect. The Penalty
APR wil
We will not applya 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 i
* We add up to 5 additional percentage pointsto 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 retum all or a part of such
© We may refuse to accept a payment in a foreign currency. If we do accept it, we payment, 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, tightto defend ourselves against any demandto return funds
we have received, and
‘may agree to a compromise of the demanded amount as partof a settlement.
7070 Nicrowar Rank Mamber FIC A.
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 exceec
will be any amount past due plus the greater of: your Account credit line, However, it will never exceed the New Balance. Wher
© $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 Paymert
© $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 lowe:
required 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—Daily Balance 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 ofthe billing period is your balance on the ast day of your previous biling ‘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 charge for
© 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 appearedon
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 amountyou 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 Transfersor How
We Apply Payments May Impact Your Grace Period
Cash Advances, {you 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 thatyou 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. If you 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 againstthe merchant and/or any third party. At our request, you agreeto 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 sendyou our Privacy Policy whenyou open your Account and annually. Contactus ++ how 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,
law, 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 agree that the Authorized Parties may contact yo
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 b
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: Discove
contacted us, or (i) 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 ‘or calls or texts. You your name, mailing address, the last four digits of your Account number and th
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 b
the Authorized Parties, You agree to 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 rate we choose, This rate will either
be a government-mandated on the conversion date for the transaction. This rate may be different than the rate
rate, 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, thi
statute of limitations of the state where the lawsuit is filed will apply, without regard to that state's conflicts of laws principles or its “borrowing statute.”
Severability Except as 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 any of them.
Assignment of Account ‘We may sell, assign or transfer your Accountor any portion of it without notice to you. You may not sel, assign or transfer your Account without first obtaining our prio
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 check we 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 creditorto your Account, section of the online Wall 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 relating to 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
resulting from this Account or any other dispute between you or JOIN OR CONSOLIDATE CLAIMS IN 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 LITIGATE IN COURT OR ARBITRATE transferred, removed or appealedto 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, INA 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 10 ‘elief. 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 paragraphs 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),
2
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-defendantof 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 panel determines otherwise as part of Users of your Accounts)
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 lke 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 address, and account number and explain in reasonable detail the any legal proceedings to collect money you owe;
for the arbitration. If you win the arbitration, we will not ask for nature of the Claim and any supporting facts. An