Preview
NO. 21-DCV-283025
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
458TH JUDICIAL DISTRICT
Vv.
FORT BEND COUNTY, TEXAS
BEULAH M MINTER,
Defendant(s)
PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Beulah M
Minter, 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
accoun {a
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 8.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Jd.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 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 out]ine 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), Beulah M Minter, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$7,346.57 minus any payments received after filing this litigation, and
Post-judgment interest at the statutory rate on said sums from the date of
Judgment until paid 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:
[WJOBRETTA LANG, ESQ.
State Bar Number 24036943
[ ] OLEN MANNING, ESQ.
State Bar Number 24118453
[ ] MELISSA REED
State bar number 24046695
CERTIFICATE OF SERVICE
Thereby certify that on the 4? day of February, 2023, 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
MARRICK ARMSTRONG
12234 SHADOW CREEK PKWY
#1104
PEARLAND, TX 77584
MARRICK@SRAPLLC.COM
JOHKETTA LANG, ESQ.
[ ] OLEN MANNING, ESQ.
[ ] MELISSA REED
NO. 21-DCV-283025
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 458TH JUDICIAL DISTRICT
Vv. §
§ FORT BEND COUNTY, TEXAS
BEULAH M MINTER, §
Defendant(s) §
EXHIBIT LIST FOR
PLAINTIFF’S AMENDED 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. BEULAH M MINTER
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. BEULAH M MINTER
NO. 21-DCV-283025
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 458TH JUDICIAL DISTRICT
Vv.
§ FORT BEND COUNTY, TEXAS
BEULAH M MINTER, §
Defendant(s) §
NOTICE OF BUSINESS RECORDS AFFIDAVIT
All parties are hereby notified that Plaintiff has filed in this cause certain business records
together with an affidavit of a duly authorized custodian of records of Plaintiff. The affidavit
and records will be offered into evidence at trial. The affidavit and records are attached hereto.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Sw Freeway
Suite 408
Sugar Land, TX 77478
ZATE_LITIGATION@ZWICKERPC.COM
281-494-0300
:
281-494-0213 (fax)
a
BY: we
(¥] CHIDI Oha, Esq
State Bar Number 24094877
[ ] Johnetta Lang, Esq.
State Bar Number 24036943
[ ] TABITHA HAYNES, Esq
State Bar Number 24118986
[ ] Trevon Watson, Esq
State Bar Number 24125451
CERTIFICATE OF SERVICE
I hereby certify that on the_17th day of 02, 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
[X] E-Service
[ ] Certified Mail
Vw
» — day of 4A\DMY 2022.
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SUBSCRIBED TO AND SWORN TO bef
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Notary Public
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My Commission Expires
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EXHIBITA
BICR
CM.TL28K.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 ofthis 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 lfwe 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
of 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 ar 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 We will not charge a Late Fee the first time you do not make the Minimum Payment were not charged a Late Fee during any of the prior six hilling periods, Otherwise,
Due by the Payment Due Date. After that, if you do not pay the Minimum Payment the fee is $40, This fee will never exceed the Minimum Payment Due that was due
Due by the Payment Due Date, we will charge you a Late Fee. The fee is $29, ifyou immediately prior to the date on which the fee was assessed,
Returned Payment Fee If you make a payment that is not hanored 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 re- exceed the Minimum Payment Due that was due immediately prior to the date on
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 numberof percentage points that we 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 None
MAKING PAYMENTS
Payment Instructions + You must pay in U.S. dollars. Please do not send cash. Sending cash is not » We credit your payments in accordance with the terms contained on your
allowed. All checks must be drawn on funds on depositin the U.S. billing statement.
+ You must pay us for all amounts dueon your Account. This includes charges made » If you mail your paymentto an address other than the address designated on your
by Authorized Users. billing statement, there may be a delay in processing and crediting the payment
«We may refuse to accept a payment in a foreign currency. If we do accept it, to your Account,
‘we will charge your Account our cast to convert it to U.S. dollars. Ifa third party makes a paymenton your Account and we return all or a part of
«We can accept late payments, partial payments or payments marked such payment, then we may adjust your Account for any amount returned. We
“payment in full” or with any other restrictive endorsement without reserve the right to defend ourselves against any demand to return funds we
losing any of our rights under this Agreement. have received, and may agree to a compromise of the demanded amount as part
of asettlement.
Minimum Payment Due You may pay the entire New Balance shown an your billing statement at any for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest
time, Each billing period you must pay at least the Minimum Payment Due by the 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 fine. 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: fees Due is rounded up to the nearest dollar.
©2020 Discover Bank, Member FDIC Ae
001
MAKING PAYMENTS
low 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
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 dothis for each day in the billing period. This gives
us the interest charges
‘+ We start with the beginning balance for each day. The beginning balance for for each Transaction Category, To get a daily periodic rate, we divide the APR that
the first day of the billing period is your balance on the last day of your previous applies to the Transaction Category by 365.
biling period © We add up all the daily interest charges. The sum is the total interest charge for
the biling perio,
« We add any interest charges accrued on the previous day's daily balance and any
new transactions and fees, We add any new transactions or fees as of the later of How We Include Fees
the Transaction Date or the first day of the billing period in which the transaction We add Balance Transfer Fees to the applicable Balance Transfer 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 statement. Interestwill continue to accrue each day on Purchases that appeared on
the day we add it to the daily balance, We continue to impose interest charges previous billing statements until you pay the New Balance in full and will be billed
until you pay the total amount you owe us. You can avoid paying interest on in the next billing cycle.
Purchases as described below. However, you cannot avoid paying interest on How We Apply Payments May Impact Your Grace Period
jalance Transfers or Cash Advances. If you do not pay your New Balance in full each month, then, depending on the
How to Avoid Paying Interest on Purchases (“Grace Period”) balance to which we apply your payment, you may not get a grace period on
If you pay the New Balance on your current billing statement by the Payment Due new Purchases.
Date shown on that billing statement, we will not impose interest charges on
OTHER IMPORTANT INFORMATION
Default You are in default if: «you fll to comply with the terms ofthis Agreement
or any Agreement with
us or
+* you file bankruptcyor another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding
your Account credit line or using your Card or Account for an illegal transaction,
‘+ we have a reasonable belief that you are unable or unwilling to repay your
obligations to us; Ifyou ate in default, we may declare the entire balance of your Account immediately
due and payable without notice.
+ you die or are legally declared incompetent or incapacitated;
Collection Costs Ifwe usean attomey 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 fes and costs of any appeal
Merchant Disputes ‘fyou 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, Account information changes, which may include your billing address, you authorize us
information Updates merchant, wallet provider, or other third party ("Permitted Party"). If you do, you to provide this updated information to any such Permitted Party at our discretion. You
authorize us to share your Account information, which may include your rewards must contact the Permitted Party directly or remove your credit card information from
account balance, with the Permitted Party, regarding the use of your Account. If your 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. » how we safeguard its confidentiality and security;
Contact us or visit Discover.com if you would like a copy. Please read it carefully » when it may be shared with others; and
Itsummarizes: + how you can limit our sharing of this information.
+ the personal information we collect;
Credit Reporting Agency You authorize us to get information from credit reporting agencies and other sources normally report to credit reporting agencies each month. if you believe that information
Information for servicing orreview of your Account, collection and any other use permitted by law, ‘we reported is inaccurate or incomplete, please write us at Discover, P.0, Box 30939,
ineluding to consideryou for other products and services, We may report the status and Salt Lake City, UT 84130-0939. Please include yourname, address, home phone number
payment history of your Account to credit reporting agencies and other creditors. We ~and Account number.
Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized You agree that the Authorized Parties may contactyou using an automatic dialer or
with You Parties") may contact you, including cals, text message or email, aboutany currentor pre-recorded voice message. If you no longer wish to be contacted on your cell phone
future accountsor applications, with respectto all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written
phone number or email (} you have provided to us, (i) from which you contacted us, notice cancelling your consent at this address: Discover Bank, P.0. Box 30937, Salt Lake
or {i) which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937, The written notice must include: your name, maling address,
may charge you message and data ratesfor calls or texts, You agree that the Authorized the last four digits of your Account number and the specific cell phone number(s) for
Parties may record or monitor any calls between you and the Authorized Parties. You whichyou would liketo cancel your consent to be contacted by an automated dialer
agree to notify us if you change or discontinue using any phone number you provide. of pre-recorded voice message.
Unauthorized Use You must notify us immediately if: + you believe someone is using your Account or a Card without your permission.
© your Card is lost or stolen; or 2
002
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 Accountholder may cancel a joint Account, However, both of you will
remain responsible for paying all amounts owed.
OTHER IMPORTANT INFORMATION
Purchases and Cash Advances It you make a Purchase or Cash Advance in a foreign currency, we will convert depending on the country and currency in which the transaction is made. We
in Foreign Currencies it to US. dollars using a rate we choose. This rate will either be a government: use the rate in effect on the conversion date for the transaction, This rate may
mandated rate, a government-published rate or the interbank exchange rate, be different than the rate in effect on the Transaction Date for the transaction.
Governing Law This Agreement is governed by applicable federal law and by Delaware lave. 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 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 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.
MILITARY BORROWERS
Statement of MAPR Federal law provides important protections to members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application
their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee
consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account}. If you
not exceed an Annual Percentage Rate of 36 percent. This rate must include, as would like more information about whether this section applies to you, please
applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7, If calling outside
insurance premiums; (2) fees for ancillary products sold in connection with the the U.S. you can contact us at +1-801-451-3730.
Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645)
anytime 24/7. If calling outside the U.S. you can contact us at +1-801-451-3730.
CONTACT US
Unless we tell you otherwise, you can notify us: * by phone at 1-800-347-3085 or « in writingto 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 informatic
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” meansa balance transferred from another creditor to 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
participating merchants,
“Cash Advance” means the use of your Account for:
“We,” "us" and “our refer to Discover Bank, the issuer of your Card.
+ obtaining cash from participating automated teller machines, financial institutions or other
locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable
under this Agreement,
+ online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or
“Transaction Date” means the date shown on your billing statement for a transaction or fee,
similar items.
ARBITRATION
Agreement to Arbitrate. In the event of a dispute between you This arbitration agreement does not apply if, on the date you relief. Ifa court decides that applicable law precludes enforcement of
and us arising out of or relatingto this Account or the relationships submit your Application or on the date we seek to invake any of this paragraph's limitations as to a particular Claim for relief,
resulting from this Account or any other dispute between you or this arbitration agreement, you are a member of the Armed ‘then after all appeals from that decision have been exhausted, that
us, including, for example, a dispute based on a federal or state Forces or a dependent of such a member covered by the federal Claim (and only that Claim) must be severed from the arbitration and
be brought in court. Only a court, and not an arbitrator, shall
statute or local ordinance (“Claim”), either you or we may choose Military Lending Act. if you would fike more information
determine the validity, scope, and effect of the Class Action Waiver,
to resolve the Clalm by binding arbitration, as described below, about whether you are covered by the Military Lending Act,
instead of in court. Any Claim (except for a Claim challenging the please contact us at 1-844-DFS-4MIL (1-844-337-4645) or Your Right to Go To Small Claims Court. We will not choose
validity or enforceability of this arbitration agreement, including if you are calling from outside the U.S, at +1-801-451-3730, to arbitrate any individual Claim you bring in small Claims court
the Class Action Waiver) may be resolved by binding arbitration CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN
‘or your state's equivalent court. However, if such a Claim is
if either side requests it. THIS MEANS IF EITHER YOU OR WE INDIVIDUAL BASIS, THIS MEANS NEITHER YOU NOR WE MAY ‘transferred, removed or appealed to a different court, we may
CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT T0 JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR then choose to arbitrate.
LITIGATE SUCH CLAIM IN COURT OR 70 HAVE A JURY TRIAL. ALSO AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR Governing Law and Rules. This arbitration agreement is
DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER governed by the Federal Arbitration Act ("FAA"), Arbitration must
OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. proceed only with the American Arbitration Association ("AAA").
Even if all parties have opted to litigate a Claim in court, you or
The arbitrator may award injunctive relief only in favor of the ‘The rules for the arbitration will be those in this arbitration
‘we may elect arbitration with respect to any Claim made by individual party seeking relief and only to the extent necessary
a new party or any new Claims later asserted in that lawsuit. agreement and the procedures of the AAA, but the rules in this
to provide relief warranted by that party's individual Claim. The arbitration agreement will be followed if there is disagreement
arbitrator may not award class, representative or public injunctive
3.
003
ARBITRATION
between the agreement and the AAA’s procedures. ff the AAA's The arbitrator's decision will be final and binding except for any Other Beneficiaries of this Agreement. In addition to you and
procedures change after the Claim is filed, the procedures in effect review allowed by the FAA. However, if more than $100,000 was us, the rights and duties described in this arbitration agreement
when the Claim was filed will apply. genuinelyin dispute, then eitheryou or we may choose to appealto apply to: our Affiliates and our and their officers, directors and
anew panel of three arbitrators. The appellate panel is completely employees; any third party co-defendant of a Claim subject to this
For a copy of the AAA's procedures, to file a Claim or for other
free to accept or reject the entire original award or any part of it. arbitration agreement; and all joint Accountholders and Authorized
information, please contact the AAA at 1101 Laurel Oak Rd., Users of your Account(s),
The appeal must be filed with AAA not later than 30 days after
Voorhees, NI 08043, worn. adrong (1-877-495-4185), the original award issues. The appealing party pays all appellate Survival of this Agreement. This arbitration agreement shall
If the AAA is completely unavailable, and if you and we cannot costs unless the appellate panel determines otherwise as part of survive:
agree 0 stitute, then either you or we may request that a its award. + dosing of your Account;
court wit risdiction appoint a substitute Claim Notice and Special Payment. If you have a Claim, before » voluntary payment of your Account or any part of it;
Fees and Costs. If you wish to begin arbitration against us but initiating an arbitration proceeding, you may give us written notice
you cannot afford to pay the AAA's or arbitrator's costs, we will any legal proceedings to collect money you owe;
of the Claim ("Claim Notice”) at least 30 days before initiating the +» any bankruptcy by you; and
advance those costs if you ask us in writing. Any request like this arbitration proceeding, The Claim Notice must include your name,
should be sent to Discover, P.O. Box 30421, Salt Lake City, UT address, and account number and explain in reasonable detail the any sale by us of your Account.
84130-0421. If you lose the arbitration, the arbitrator will decide nature of the Claim and any supporting facts. Any Claim Notice shall You Have the Right to Reject Arbitration for this Account.
whether you must reimburse us for money we advanced for you be sent
to us at Discover, P.0. Box 794, Deerfield, IL 60015 (or such. You may reject the arbitration agreement but only if we
for the arbitration. If you win the arbitration, we will not ask for other address as we shall subsequently provide to you). If, and only receive from you a written notice of rejection within
reimbursement of money we advanced. Additionally, if you win the if, (1) you submit a Claim Notice in accordance with this agreement 30 days of your receipt of the Card after your Account is
atbitration, the arbitrator may decide that you are entitled to be on your own behalf (and not on behalf of any other party); and (2) opened. You must send the notice of rejection to: Discover,
reimbursed your reasonable attorneys’ fees and costs (if actually an arbitrator, af
Preview
NO. 21-DCV-283025 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff 458TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS BEULAH M MINTER, Defendant(s) PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Beulah M Minter, 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 accoun {a 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 8.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Jd. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 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 out]ine 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), Beulah M Minter, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $7,346.57 minus any payments received after filing this litigation, and Post-judgment interest at the statutory rate on said sums from the date of Judgment until paid 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: [WJOBRETTA LANG, ESQ. State Bar Number 24036943 [ ] OLEN MANNING, ESQ. State Bar Number 24118453 [ ] MELISSA REED State bar number 24046695 CERTIFICATE OF SERVICE Thereby certify that on the 4? day of February, 2023, 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 MARRICK ARMSTRONG 12234 SHADOW CREEK PKWY #1104 PEARLAND, TX 77584 MARRICK@SRAPLLC.COM JOHKETTA LANG, ESQ. [ ] OLEN MANNING, ESQ. [ ] MELISSA REED NO. 21-DCV-283025 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 458TH JUDICIAL DISTRICT Vv. § § FORT BEND COUNTY, TEXAS BEULAH M MINTER, § Defendant(s) § EXHIBIT LIST FOR PLAINTIFF’S AMENDED 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. BEULAH M MINTER EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. BEULAH M MINTER NO. 21-DCV-283025 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 458TH JUDICIAL DISTRICT Vv. § FORT BEND COUNTY, TEXAS BEULAH M MINTER, § Defendant(s) § NOTICE OF BUSINESS RECORDS AFFIDAVIT All parties are hereby notified that Plaintiff has filed in this cause certain business records together with an affidavit of a duly authorized custodian of records of Plaintiff. The affidavit and records will be offered into evidence at trial. The affidavit and records are attached hereto. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Sw Freeway Suite 408 Sugar Land, TX 77478 ZATE_LITIGATION@ZWICKERPC.COM 281-494-0300 : 281-494-0213 (fax) a BY: we (¥] CHIDI Oha, Esq State Bar Number 24094877 [ ] Johnetta Lang, Esq. State Bar Number 24036943 [ ] TABITHA HAYNES, Esq State Bar Number 24118986 [ ] Trevon Watson, Esq State Bar Number 24125451 CERTIFICATE OF SERVICE I hereby certify that on the_17th day of 02, 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 [X] E-Service [ ] Certified Mail Vw » — day of 4A\DMY 2022. oN SUBSCRIBED TO AND SWORN TO bef ge Notary Public ey a Abigail Patton Sa a a Netary Public, State of Ohio My Commission Expires age oN May 16, 2023 Maw EXHIBITA BICR CM.TL28K.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 ofthis 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 lfwe 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 of 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 ar 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 We will not charge a Late Fee the first time you do not make the Minimum Payment were not charged a Late Fee during any of the prior six hilling periods, Otherwise, Due by the Payment Due Date. After that, if you do not pay the Minimum Payment the fee is $40, This fee will never exceed the Minimum Payment Due that was due Due by the Payment Due Date, we will charge you a Late Fee. The fee is $29, ifyou immediately prior to the date on which the fee was assessed, Returned Payment Fee If you make a payment that is not hanored 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 re- exceed the Minimum Payment Due that was due immediately prior to the date on 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 numberof percentage points that we 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 None MAKING PAYMENTS Payment Instructions + You must pay in U.S. dollars. Please do not send cash. Sending cash is not » We credit your payments in accordance with the terms contained on your allowed. All checks must be drawn on funds on depositin the U.S. billing statement. + You must pay us for all amounts dueon your Account. This includes charges made » If you mail your paymentto an address other than the address designated on your by Authorized Users. billing statement, there may be a delay in processing and crediting the payment «We may refuse to accept a payment in a foreign currency. If we do accept it, to your Account, ‘we will charge your Account our cast to convert it to U.S. dollars. Ifa third party makes a paymenton your Account and we return all or a part of «We can accept late payments, partial payments or payments marked such payment, then we may adjust your Account for any amount returned. We “payment in full” or with any other restrictive endorsement without reserve the right to defend ourselves against any demand to return funds we losing any of our rights under this Agreement. have received, and may agree to a compromise of the demanded amount as part of asettlement. Minimum Payment Due You may pay the entire New Balance shown an your billing statement at any for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest time, Each billing period you must pay at least the Minimum Payment Due by the 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 fine. 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: fees Due is rounded up to the nearest dollar. ©2020 Discover Bank, Member FDIC Ae 001 MAKING PAYMENTS low 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 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 dothis for each day in the billing period. This gives us the interest charges ‘+ We start with the beginning balance for each day. The beginning balance for for each Transaction Category, To get a daily periodic rate, we divide the APR that the first day of the billing period is your balance on the last day of your previous applies to the Transaction Category by 365. biling period © We add up all the daily interest charges. The sum is the total interest charge for the biling perio, « We add any interest charges accrued on the previous day's daily balance and any new transactions and fees, We add any new transactions or fees as of the later of How We Include Fees the Transaction Date or the first day of the billing period in which the transaction We add Balance Transfer Fees to the applicable Balance Transfer 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 statement. Interestwill continue to accrue each day on Purchases that appeared on the day we add it to the daily balance, We continue to impose interest charges previous billing statements until you pay the New Balance in full and will be billed until you pay the total amount you owe us. You can avoid paying interest on in the next billing cycle. Purchases as described below. However, you cannot avoid paying interest on How We Apply Payments May Impact Your Grace Period jalance Transfers or Cash Advances. If you do not pay your New Balance in full each month, then, depending on the How to Avoid Paying Interest on Purchases (“Grace Period”) balance to which we apply your payment, you may not get a grace period on If you pay the New Balance on your current billing statement by the Payment Due new Purchases. Date shown on that billing statement, we will not impose interest charges on OTHER IMPORTANT INFORMATION Default You are in default if: «you fll to comply with the terms ofthis Agreement or any Agreement with us or +* you file bankruptcyor another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding your Account credit line or using your Card or Account for an illegal transaction, ‘+ we have a reasonable belief that you are unable or unwilling to repay your obligations to us; Ifyou ate in default, we may declare the entire balance of your Account immediately due and payable without notice. + you die or are legally declared incompetent or incapacitated; Collection Costs Ifwe usean attomey 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 fes and costs of any appeal Merchant Disputes ‘fyou 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, Account information changes, which may include your billing address, you authorize us information Updates merchant, wallet provider, or other third party ("Permitted Party"). If you do, you to provide this updated information to any such Permitted Party at our discretion. You authorize us to share your Account information, which may include your rewards must contact the Permitted Party directly or remove your credit card information from account balance, with the Permitted Party, regarding the use of your Account. If your 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. » how we safeguard its confidentiality and security; Contact us or visit Discover.com if you would like a copy. Please read it carefully » when it may be shared with others; and Itsummarizes: + how you can limit our sharing of this information. + the personal information we collect; Credit Reporting Agency You authorize us to get information from credit reporting agencies and other sources normally report to credit reporting agencies each month. if you believe that information Information for servicing orreview of your Account, collection and any other use permitted by law, ‘we reported is inaccurate or incomplete, please write us at Discover, P.0, Box 30939, ineluding to consideryou for other products and services, We may report the status and Salt Lake City, UT 84130-0939. Please include yourname, address, home phone number payment history of your Account to credit reporting agencies and other creditors. We ~and Account number. Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized You agree that the Authorized Parties may contactyou using an automatic dialer or with You Parties") may contact you, including cals, text message or email, aboutany currentor pre-recorded voice message. If you no longer wish to be contacted on your cell phone future accountsor applications, with respectto all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written phone number or email (} you have provided to us, (i) from which you contacted us, notice cancelling your consent at this address: Discover Bank, P.0. Box 30937, Salt Lake or {i) which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937, The written notice must include: your name, maling address, may charge you message and data ratesfor calls or texts, You agree that the Authorized the last four digits of your Account number and the specific cell phone number(s) for Parties may record or monitor any calls between you and the Authorized Parties. You whichyou would liketo cancel your consent to be contacted by an automated dialer agree to notify us if you change or discontinue using any phone number you provide. of pre-recorded voice message. Unauthorized Use You must notify us immediately if: + you believe someone is using your Account or a Card without your permission. © your Card is lost or stolen; or 2 002 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 Accountholder may cancel a joint Account, However, both of you will remain responsible for paying all amounts owed. OTHER IMPORTANT INFORMATION Purchases and Cash Advances It you make a Purchase or Cash Advance in a foreign currency, we will convert depending on the country and currency in which the transaction is made. We in Foreign Currencies it to US. dollars using a rate we choose. This rate will either be a government: use the rate in effect on the conversion date for the transaction, This rate may mandated rate, a government-published rate or the interbank exchange rate, be different than the rate in effect on the Transaction Date for the transaction. Governing Law This Agreement is governed by applicable federal law and by Delaware lave. 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 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 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. MILITARY BORROWERS Statement of MAPR Federal law provides important protections to members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account}. If you not exceed an Annual Percentage Rate of 36 percent. This rate must include, as would like more information about whether this section applies to you, please applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7, If calling outside insurance premiums; (2) fees for ancillary products sold in connection with the the U.S. you can contact us at +1-801-451-3730. Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7. If calling outside the U.S. you can contact us at +1-801-451-3730. CONTACT US Unless we tell you otherwise, you can notify us: * by phone at 1-800-347-3085 or « in writingto 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 informatic 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” meansa balance transferred from another creditor to 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 participating merchants, “Cash Advance” means the use of your Account for: “We,” "us" and “our refer to Discover Bank, the issuer of your Card. + obtaining cash from participating automated teller machines, financial institutions or other locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable under this Agreement, + online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or “Transaction Date” means the date shown on your billing statement for a transaction or fee, similar items. ARBITRATION Agreement to Arbitrate. In the event of a dispute between you This arbitration agreement does not apply if, on the date you relief. Ifa court decides that applicable law precludes enforcement of and us arising out of or relatingto this Account or the relationships submit your Application or on the date we seek to invake any of this paragraph's limitations as to a particular Claim for relief, resulting from this Account or any other dispute between you or this arbitration agreement, you are a member of the Armed ‘then after all appeals from that decision have been exhausted, that us, including, for example, a dispute based on a federal or state Forces or a dependent of such a member covered by the federal Claim (and only that Claim) must be severed from the arbitration and be brought in court. Only a court, and not an arbitrator, shall statute or local ordinance (“Claim”), either you or we may choose Military Lending Act. if you would fike more information determine the validity, scope, and effect of the Class Action Waiver, to resolve the Clalm by binding arbitration, as described below, about whether you are covered by the Military Lending Act, instead of in court. Any Claim (except for a Claim challenging the please contact us at 1-844-DFS-4MIL (1-844-337-4645) or Your Right to Go To Small Claims Court. We will not choose validity or enforceability of this arbitration agreement, including if you are calling from outside the U.S, at +1-801-451-3730, to arbitrate any individual Claim you bring in small Claims court the Class Action Waiver) may be resolved by binding arbitration CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN ‘or your state's equivalent court. However, if such a Claim is if either side requests it. THIS MEANS IF EITHER YOU OR WE INDIVIDUAL BASIS, THIS MEANS NEITHER YOU NOR WE MAY ‘transferred, removed or appealed to a different court, we may CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT T0 JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR then choose to arbitrate. LITIGATE SUCH CLAIM IN COURT OR 70 HAVE A JURY TRIAL. ALSO AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR Governing Law and Rules. This arbitration agreement is DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER governed by the Federal Arbitration Act ("FAA"), Arbitration must OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. proceed only with the American Arbitration Association ("AAA"). Even if all parties have opted to litigate a Claim in court, you or The arbitrator may award injunctive relief only in favor of the ‘The rules for the arbitration will be those in this arbitration ‘we may elect arbitration with respect to any Claim made by individual party seeking relief and only to the extent necessary a new party or any new Claims later asserted in that lawsuit. agreement and the procedures of the AAA, but the rules in this to provide relief warranted by that party's individual Claim. The arbitration agreement will be followed if there is disagreement arbitrator may not award class, representative or public injunctive 3. 003 ARBITRATION between the agreement and the AAA’s procedures. ff the AAA's The arbitrator's decision will be final and binding except for any Other Beneficiaries of this Agreement. In addition to you and procedures change after the Claim is filed, the procedures in effect review allowed by the FAA. However, if more than $100,000 was us, the rights and duties described in this arbitration agreement when the Claim was filed will apply. genuinelyin dispute, then eitheryou or we may choose to appealto apply to: our Affiliates and our and their officers, directors and anew panel of three arbitrators. The appellate panel is completely employees; any third party co-defendant of a Claim subject to this For a copy of the AAA's procedures, to file a Claim or for other free to accept or reject the entire original award or any part of it. arbitration agreement; and all joint Accountholders and Authorized information, please contact the AAA at 1101 Laurel Oak Rd., Users of your Account(s), The appeal must be filed with AAA not later than 30 days after Voorhees, NI 08043, worn. adrong (1-877-495-4185), the original award issues. The appealing party pays all appellate Survival of this Agreement. This arbitration agreement shall If the AAA is completely unavailable, and if you and we cannot costs unless the appellate panel determines otherwise as part of survive: agree 0 stitute, then either you or we may request that a its award. + dosing of your Account; court wit risdiction appoint a substitute Claim Notice and Special Payment. If you have a Claim, before » voluntary payment of your Account or any part of it; Fees and Costs. If you wish to begin arbitration against us but initiating an arbitration proceeding, you may give us written notice you cannot afford to pay the AAA's or arbitrator's costs, we will any legal proceedings to collect money you owe; of the Claim ("Claim Notice”) at least 30 days before initiating the +» any bankruptcy by you; and advance those costs if you ask us in writing. Any request like this arbitration proceeding, The Claim Notice must include your name, should be sent to Discover, P.O. Box 30421, Salt Lake City, UT address, and account number and explain in reasonable detail the any sale by us of your Account. 84130-0421. If you lose the arbitration, the arbitrator will decide nature of the Claim and any supporting facts. Any Claim Notice shall You Have the Right to Reject Arbitration for this Account. whether you must reimburse us for money we advanced for you be sent to us at Discover, P.0. Box 794, Deerfield, IL 60015 (or such. You may reject the arbitration agreement but only if we for the arbitration. If you win the arbitration, we will not ask for other address as we shall subsequently provide to you). If, and only receive from you a written notice of rejection within reimbursement of money we advanced. Additionally, if you win the if, (1) you submit a Claim Notice in accordance with this agreement 30 days of your receipt of the Card after your Account is atbitration, the arbitrator may decide that you are entitled to be on your own behalf (and not on behalf of any other party); and (2) opened. You must send the notice of rejection to: Discover, reimbursed your reasonable attorneys’ fees and costs (if actually an arbitrator, af