Preview
Filed
GR
mM
8/1/2022 2:59 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Sylvie Le
NO. 21-DCV-287907
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff § 458TH JUDICIAL DISTRICT
V. § FORT BEND COUNTY, TEXAS
NICOLE FLANNORY AKA NICOLE M §
FLANNORY,
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
American Express National Bank, Plaintiff moves for Summary Judgment against
Defendant(s), Nicole Flannory Aka Nicole M Flannory, respectfully showing the Court as follows:
1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which
are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated herein
is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes as an
attachment a true and correct copy of the applicable supporting account documents for
account ll
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
TA
agreement. The language in the agreement here and in Winchek is nearly identical in parts
relevant to the Court’s decision.
Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 $.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id.
at 202 (citing Prime Products, Ine. 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).
Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14"] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. . We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Jd. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this
matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of
material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiffbe
granted summary judgment against Defendant(s), Nicole Flannory Aka Nicole M Flannory, for
the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$10,259.17 minus any payments received after filing this litigation, and
2. All costs of this proceeding.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE Litigation@ZwickerPC.com
(281) 494-0300
(281) 494-0213 fax
BY: ZA
[ ] JOHNETTA LANG, ESQ.
Sta ar Number 24036943
[{TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
[ ] DEIDRE HARRIS, ESQ.
State Bar Number 24058586
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
Thereby certify that on the & day of , 2022, this office served a true and correct
copy of the foregoing in accordance wit le 21a of the Texas Rules of Civil Procedure upon
the below listed interested parties via
[ ] First-Class Mail
[v] E-Service
[ ] Certified Mail
DAVID A. FERNANDEZ
2190 N LOOP WEST
STE 333
HOUSTON, TX 77018
SERVICE@YOURHOUSTONCONSUMERATTORNEY.COM
aNETTA
1]
tESQ.
tLANG,
[4 TREVON WATSON, ESQ.
| ] TABITHA HAYNES, ESQ.
| ] DEIDRE HARRIS, ESQ.
[ |] AJEET BADESHA, ESQ.
NO. 21-DCV-287907
AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT
BANK,
Plaintiff § 458TH JUDICIAL DISTRICT
Vv. § FORT BEND COUNTY, TEXAS
NICOLE FLANNORY AKA NICOLE M_ §
FLANNORY,
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
AMERICAN EXPRESS NATIONAL BANK V. NICOLE FLANNORY AKA NICOLE M FLANNORY
EXHIBIT “A”
Affidavit in Support of Judgment
AMERICAN EXPRESS NATIONAL BANK V. NICOLE FLANNORY AKA NICOLE M FLANNORY
NICOLE FLANNORY AKA NICOLE M FLANNORY
Account ending in|
AFFIDAVIT OF PLAINTIFF
I, Raquel Hernandez, declare and state as follows:
1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK.
("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter),
with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070.
2 In my capacity as Assistant Custodian of Records for American Express, I am familiar with the
ongoing credit card business operations and practices of American Express, particularly with respect to its
recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by
American Express. I have access to the business records relating to credit card accounts issued by American
Express, including, in particular, the records of cardmember accounts and the applicable card agreements. I
have personal knowledge of American Express’ regular practices and procedures with respect to: (a) the
transmittal of credit card account agreements, notices, billing statements, and other documents; and (b) quality
assurance controls utilized to ensure that such transmittals are properly made. I also have access to and am
generally familiar with the cardmember account records created and maintained by American Express.
Except where based on my review of records and documents regularly maintained in the ordinary course of
business, all of the matters set forth herein are within my personal knowledge and are true and correct and, if
called as a witness, I could competently testify thereto.
3 The billing statements and other documents referred to herein were created at or near either the
time of the transactions or the time the original statements were made and have been kept by American
Express in the ordinary course of business. In my experience, the systems used by American Express to
create and maintain data for and to produce billing statements and other documents are reliable and kept in a
good state of repair, and American Express’ procedures for inserting transaction and other data into the
systems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtained
only by authorized American Express personnel or authorized agents pursuant to proper procedures, which
must be followed in order to obtain the statements. The other records referred to herein were created and kept
in the ordinary course of business by American Express and were created at or near the time of the occurrence
of the matters set forth by those records and/or were created based upon information transmitted by a person
with knowledge of the matters set forth in those records. It is the regular business practice of American
Express to make and keep said records. The statements contained in this affidavit are made based on my
personal knowledge of the business records practices of American Express.
4. All American Express credit card accounts are governed by a written agreement (the
“Cardmember Agreement”) setting forth the terms and conditions of the account. When an American Express
account is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreement
provides that use of the card constitutes acceptance of the agreement.
5 All American Express Cardmember Agreements expressly provide that American Express may
change the terms of the Cardmember Agreement from time to time. American Express advises current
cardholders of changes through change-in-terms notices, which are either mailed to American Express
cardmembers in separate mailings or included with or printed on the cardmembers’ monthly billing
statements.
ZATE
TX_AENB_001
NICOLE FLANNORY AKA NICOLE M FLANNORY
Account ending in
6. American Express maintains computerized records of the amounts due and owing to American
Express for any transactions that occur when an individual uses an American Express credit card. The
computerized records reflect all debits and credits in connection with the use of an American Express credit
card. American Express sends or otherwise makes available monthly billing statements to cardmembers who
carry a balance or are otherwise required to receive a monthly statement.
7
Ihave personally reviewed American Express’ records concerning defendant NICOLE
FLANNORY AKA NICOLE M FLANNORY (“Defendant”). Those records reflect that Defendant opened
an American Express credit card account, the current account number ending in 006 (the “Account”) in
06/2005. Consistent with American Express’ standard business practices, American Express’ records reflect
that it mailed Defendant’s credit card, together with a copy of Defendant’s Cardmember Agreement, to
Defendant when American Express opened Defendant’s Account. Copies of each of these Cardmember
Agreements were transmitted to Defendant as they were periodically revised or updated. A true and correct
copy of the Cardmember Agreement in effect at the time of cancellation of the Account is annexed hereto as
Exhibit “A”.
8 American Express’ records further reflect that Defendant used the Account to pay for various
goods and services and/or obtain cash advances. Consistent with American Express’ standard business
practices, American Express’ records reflect that it transmitted monthly billing statements to Defendant.
There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due and
owing on the monthly statements provided to Defendant.
9. Pursuant to American Express’ records, under the terms of the Cardmember Agreement,
Defendant defaulted in making the payments due on the Account. American Express’ records reflect that
American Express closed Defendant’s Account. After giving Defendant credit for all payments made, if any,
the amount justly due and owing as of 06/30/22 is $10,259.17, exclusive of court costs and attorneys’ fees. A
true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s)
06/15/19 to 07/15/19 is annexed hereto as Exhibit “B”.
10. Defendant’s Account has not been sold or assigned by American Express, the original creditor
of the account.
ZATE
TX_AENB
001
NICOLE FLANNORY AKA NICOLE M FLANNORY
Account ending in|
11. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in
the military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an
infant, incompetent, under mental defect or infirm.
oa
2
Dated: | s|20 ww By:
Name: Raquel Hernandez
Title: Assistant Custodian of Records
STATE OF ARIZONA
COUNTY OF MARICOPA
Subscribed and sworn (or affirmed) before me this oth
(Seal)
Notary
GERD. DANIELA ARRIAGA ESPINOZA
ees Notary Public - Arizona
Maricopa County
Wes Commission # 614491
My Comm. ExpiresOct 8, 2025
ZATE
TX_AENB_001
EXHIBIT A
BHICR
=
Cardmember Agreement: Part 1 of 2 As of: 01/01/2011
Rewards Plus Gold Card Cardmember Name: icole M —
Issuer: American Express Centurion Bank Account
Spending Limit: $1,000
Fees Table
a
Annual Membership Fee $150
Transaction Fees
Foreign Transaction 2.7% of each transaction after conversion to US dollars.
Penalty Fees
Late Payment Up to $35; however, if you do not pay for two billing periods in a row,
Upto ey fee will be $35.or 2.99% of the past due amount, whichever is greater.
Returned Payment
How we calculate interest: We use the Average Daily Balance methad (including new transactions). See the
How we calculate interest section in Part 2.
Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions.
CMAEUAAO0000101 Page 1 of 9
How Rates and Fees Work
atl Com Cora gM ON CM ELM oll Lele} RTP Tt Ol ee Oe ea eee Leelee
Penalty APR for The penalty APR applies to new transactions if: If the Penalty APR applies to a balance, it will
new transactions you do not pay at least the Minimum apply to charges added to that balance 15 or
Payment Due by the Closing Date of the more days after we send you notice.
illing period in which it is due 2 times in 12
billing periods, or We will review your Account every 6 months after
your payment is returned by your bank. the Penalty APR is applied. The Penalty APR will
continue to apply until you have made timely
payments with no returned payments during the 6
months being reviewed.
Penalty APR for If you do not pay at least the Minimum Payment Due within 60 days after its Payment Due Date, we
existing balances can apply the penalty APR to those balances it does not already apply to. After you pay on time for
6 billing periods in a row, the penalty APR will no longer apply to those balances (but it may still
apply to other balances as described above).
meicd
Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. We will not charge for the first 5
additional cards, we will charge $35 for each additional card thereafter.
Late Payment Up to $35 or 2.99% of the amount past due. If you do not pay the Amount Due on a billing
statement before the 10th day after the next Closing Date, the fee is $25. If this happens again
within the next 6 billing periods, the fee is $35 instead. In both cases, if you do not pay the amount
past due by the following Closing Date, we will charge, in that same billing period, the greater of
$35 or 2.99% of the amount past due. For each subsequent billing period that an amount past due
remains unpaid, the fee is the greater of $35 or 2.99% of any amount past due. However, the late
fee will not exceed the Minimum Payment Due. Paying late may also result in a Penalty APR. See
Penalty APR for new transactions and Penalty APR tor existing balances above.
Returned Payment Up to $35. If your payment is returned unpaid the first time we present it to your bank, the fee is
$25. If this happens again within the next 6 billing periods, the fee is $35. However, the returned
payment fee will not exceed the Minimum Payment Due on the last Payment Due Date before the
payment is returned. A returned payment may also result in a Penalty APR. See Penalty APR for
new transactions above.
Returned Check $38 if you use your card to cash a check at one of our approved locations and the check is returned
unpaid. We will also charge you the unpaid amount.
Statement Copy $5 for each statement you request, except for the 3 most recent billing periods.
Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so.
Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Converting charges
made in a foreign currencyin Part 2.
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
CMAEUAA0000101 Page2 of 9
ANERICAN)
Seness
Cardmember Agreement: Part 2 of 2 CD 27737
introduction
About your This document together with Part 1 make up the supplements or amendments are also part of the
Cardmember Agreement Cardmember Agreement (Agreement) for the Agreement. When you use the Account (or you sign
Account identified on page 1 of Part 1. Any orkeep the card), you agree to the terms of the
Agreement,
Changing the Agreement We may change this Agreement, subject to to some terms may require 45 days advance notice,
applicable law. We may do this in response to the and we will tell you in the notice if you have the right
business, legal or competitive environment. to reject a change. We cannot change certain terms
We cannot increase the interest rate on existing during the first year of your Cardmembership.
balances except in limited circumstances. Changes
Words we use in We, us, and our mean the issuer shown on page 1 Card means any card or other device that we issue
the Agreement of Part 1. You and your mean the person who to access your Account. A charge is any amount
applied for this Account and for whom we opened added to your Account, such as purchases, fees and
the Account. You and your also mean anyone who interest charges. A purchase is a charge for goods
agrees to pay for this Account. You are the Basic or services.
Cardmember, You may raquest a card for an To pay by a certain date means to send your
Additional Cardmember (see About Additional
Cardmembers in Part 2).
payment so that we receive it and credit it to your
Account by that date (see About your payments in
Part 2).
About using your card
Using the card You may use the card to make purchases. You may not required to) tell these merchants about your
also use the card at an ATM to get cash from a Account status or changes to your card number or
checking account you designate. expiration date. You must notify the merchants
We decide whether to approve a charge based on directly if you want them to stop charging your
how you spend and pay on this Account and other \ecount,
accounts you have with us and our affiliates. We also Keep your card safe and don t let anyone else use it.
consider your credit history and your personal If your card is lost or stolen or your Account is being
resources that we know about. used without your permission, contact us right away.
You may arrange for cerlain merchants to charge You may not use your Account for illegal activities.
your Account at regular intervals. We may (but are
Promise to pay You promise to pay all charges, including:
charges you make, even if you do not present your card or sign for the transaction,
charges that other people make if you let them use your Account, and
charges that Additional Cardmembers make or permit others to make.
Declined transactions We may decline to authorize a charge. Reasons we We are not responsibie for any losses you incur if we
may do this include suspected fraud and our do not authorize a charge. And we are not
assessment of your creditworthiness. This may occur responsible if any merchant refuses to accept the
even if your Account is not in default, card.
About Pay Over We may add features to your Account that allow you outside the U.S. If you enroll in the Extended
Time features to pay certain charges over time. These features Payment Option, we will automatically place all
include Select & Pay Later, Sign & Travel® and the eligible charges into a Pay Over Time balance. A
Extended Payment Option. charge is eligible if it equals or is more than a certain
Select & Pay Later lets you pay a charge over time in dollar amount. We will tell you this amount when you
two ways. You may ask a travel industry merchant at enroll, and it is subject to change. We will tell you if
the time you make the charge, or ask us after the we change it. Certain charges are not eligible, such
charge appears on your statement. If we approve as cash and similar transactions.
your request, we will place the charge into a Pay We will not place any charge into a Pay Over Time
Over Time balance. If we decline your request, you balance if it causes the total of your Pay Over Time
must pay the charge in full upon receipt of your balances to go over $35,000. We will tell you if we
billing statement, change that amount. You must pay in full all charges
Hf you enroll in Sign & Travel, we will automatically that are not placed into a Pay Over Time balance
place eligible travel-related charges into a Pay Over upon receipt of your billing statement. We may
Time balance. Some examples are airline and cruise change which charges are eligible to be placed into
ship tickets, hotels, car rentals and charges made a Pay Over Time balance.
CMAEUACM0000101 Page 3 of 9
About your payments
When you must pay Payment of the New Balance is due upon receipt of of the same day it is received.
your statement. If a statement includes a Pay Over
Time balance, it will show a Minimum Payment Due.
Each statement also shows a Closing Date. The
In this case, you must pay at least the Minimum Closing Date is the last day of the billing period
covered by the statement. Each Closing Date is
Payment Due by the Payment Due Date. Each about 30 days after the previous statement s Closing
‘statement also states the time and manner by which Date.
you must make your payment for it to be credited as
How to make payments Make payments to us in U.S. dollars with: your billing statement. If we receive it after that time,
a single check drawn on a U.S. bank, or we will credit the payment on the day after we
a single negotiable instrument clearable through receive it.
the U.S. banking system, for example a money If your payment does not meet the above
order, or requirements, there may be a delay in crediting your
an electronic payment that can be cleared through
Account. This may result in late fees and additional
the U.S. banking system.
interest charges (see How Rates and Fees Workon
When making a payment by mail: page 2 of Part 1).
make a separate payment for each account, If we decide to accept a payment made in a foreign
mail your payment to the address shown on the
payment coupon on your billing statement, and currency, we will choose a rateto convert your
write your Account number on your check or
payment into U.S. dollars, unless the law requires us
to use a particular rate.
negotiable instrument and include the payment
coupon. It we process a late payment, a partial payment or a
If your payment meets the above requirements, we
payment marked with any restrictive language, that
will have no effect on our rights and will not change
will credit it to your Account as of the day we receive this Agreement.
it, as long as we receive it by the time disclosed in
How we apply payments Ifa statement includes a Pay Over Time balance, it rate and then to balances with higher interest rates.
and credits will show a Minimum Payment Due. The Minimum
Aiter the Minimum Payment Due has been paid, we
Payment Due is the Pay In Full New Balance plus apply payments to the remaining Pay Over Time bal-
the Pay Over Time Minimum Due. ance. When we do this, we apply payments first to
Ifyou have a Pay Over Time balance, we generally the balance with the highest interest rate and then to
apply payments up to the Minimum Payment balances with lower interest rates.
Due first to the Pay Over Time Minimum Due and
then to the Pay In Full New Balance. When applying In most cases, we apply a credit to the same bal-
@ payment to the Pay Over Time Minimum Due, we
ance as the related charge. We may apply payments
and credits within balances, and among balances
apply it first to the balance with the lowest interest with the same interest rate, in any order we choose.
About your Minimum Payment Due
How we calculate your The imum Payment Due is the Pay In Full amount plus any Pay Over Time Mi um Due.
Minimum Payment Due To calculate the Pay Over Time Minimum Due for
i se
each statement, we start with the highest of the = fin
following three amounts: We
(1) 2% of the Pay Over Time New Balance: or
(2) interest charged on the statement plus 1% of the
Pay Over Time New Balance (excluding interest cs710 td
‘on the statement), not to exceed 4% of the Pay oa
Over Time New Balance; or
(3) $20.
‘Then we round to the nearest dollar. After that, we
3) 2020)
add any Pay Over Time amount past due. 0.
eenD
However, your Pay Over Time Minimum Due will not | St we
exceed your Pay Over Time New Balance.
Adjusting your Pay Over Hf you regularly pay more than the Minimum Payment Due described above, we may adjust the Pay Over
Time Minimum Due Time Minimum Due in future billing periods. This may let you make a smaller minimum payment from time
to time. But if you then do not regularly pay more than the Minimum Payment Due described above, we will
‘stop making the adjustment and return to the formula above. If we start or stop making the adjustment, we
will do so for at least six billing periods in a row. To adjust the Pay Over Time Minimum Due, we will not.
add 1% of the Pay Over Time New Balance in (2). Then, if (2) is the highest (but less than 4% of the Pay
Over Time New Balance), we will add $15. continuedon next page...
CMAEUACMO0000101 Page
4 of 9
AMERICAN]=o
ss
..continued from previous page We will do this if over six billng periods the sum of payments credited to your Pay Over Time balance is
more than the sum of the Pay Over Time Minimum Dues (not adjusted, except any Pay Over Time amount
past due Is counted only in the first of those six periods). We will also make the adjustment if over six billing
periods the sum of the Pay Over Time Minimum Dues (not adjusted) is not more than $120 and equals the
‘sum of payments credited to your Pay Over Time balance. However, we will not make the adjustment if the
sum of the Pay Over Time Minimum Dues is zero and we did not adjust the Pay Over Time Minimum Due
the last time it was not zero.
About interest charges on Pay Over Time balances
When we charge interest For charges added at your request Ifyou pay the Account Total New Balance on a
We charge interest on charges that are added at ‘statement by the Closing Date shown on the next
your request to a Pay Over Time balance as of the ‘statement, then on that next statement we will not
date the charge is added. If you pay the Account charge interest on those charges.
Total New Balance on a statement by the Closing Ifyou paid the Account Total Previous Balance on a
Date on the next statement, then on that next
‘statement we will not charge interest on any Pay
statement by its Closing Date, and you pay less than
the Account Total New Balance on that statement by
Over Time portion of that Account Total New
the Closing Date of the next statement, then we will
Balance. not charge interest on the portion of automatically
For charges added automatically added charges that we apply your payment to. But
We charge interest on charges that are added we will charge interest on the remaining portion of
automatically to a Pay Over Time balance beginning those charges.
‘on the transaction date. However, you can avoid
Also, we will not charge interest an automatically
paying interest on those charges as described
added charges shown on a statement if the Account
below.
Total Previous Balance on that statement is zero or
@ credit balance.
How we calculate interest We calculate interest for a billing period by first figuring the interest on each balance. Balances within each
feature such as Select & Pay Later, Sign & Travel and Extended Payment Option may have different
interest rates.
We use the Average Daily Balance method Dally Balance
(including new transactions) to figure interest For each day a DPR is in effect, we figure the daily
charges for each balance. The total interest charged balance by:
for a billing period is the sum of the interest charged taking the beginning balance for the day,
‘on each balance. adding any new charges,
Interest subtracting any payments or credits; and
The interest charged for a balance in a billing period, making any appropriate adjustments.
except for variations caused by rounding, equals: We add a new charge to a daily balance as of its
Average Daily Balance (ADB) x transaction date.
Daily Periodic Rate (DPR) x Beginning balance
number of days the DPR was in effect. For the first day of a billing period, the beginning
ADB balance is the ending balance for the prior billing
To get the ADB for a balance, we add up its daily period, including unpaid interest. For the rest of the
balances. Then we divide the result by the number billing period, the beginning balance is the previous
of days the DPR for that balance was in effect. If the day s daily balance plus an amount of interest equal
daily balance is negative, we treat it as zero. to the previous day s daily balance multiolied by the
DPR OPR for that balance. This method of figuring the
A DPR Is 1/365th of an APR, rounded to one ten- beginning balance results in daily compounding of
thousandth of a percentage point. Your DPRs are interest.
shown in How Rates and Fees Work on page 2 of When an interest rate changes, the new DPR may
Part 1. come into effect during not just at the beginning
of the billing period. When this happens, we will
uh create a new balance and apply the new DPR to it.
To get the beginning balance on the first day for this
new balance, we multiply the previous day s dally
balance by the old DPR and add the result to that
day s daily balance.
Other methods
hel To figure the ADB and interest charges, we may use
other formulas or methods that produce equivalent
results. Also, we may choose not to charge interest
on certain types of charges.
CMAEUACM0000101 Page 5 of 9
Determining the We use the Prime Rate from the Money Rates use the Prime Rate from any other newspaper of
Prime Rate ‘section (or successor section) of The Wall Sireet general circulation in New York, New York. Or we
Journal. The Prime Rate for each billing period is the may choose to use a similar published rate.
Prime Rate published in The Wal! Street Journal 2
Ifthe Prime Rate increases, variable APRs (and
days before the Closing Date of the billing period.
corresponding DPRs) will increase. in that case, you
The Wail Street Journal may not publish the Prime may pay more interest and may have a higher
Rate on that day. If it does not, we will use the Prime Minimum Payment Due. When the Prime Rate
Rate from the previous day it was published. If The changes, the resulting changes to variable APRs
Wall Street Journals no longer published, we may take effect as of the first day of the billing period.
Other important information
About Additional At your request, we may issue cardsto Additional You authorize us to give Additional Cardmembers
Cardmembers Cardmembers. They do not have accounts with us information about your Account and to discuss it with
but they can use your Account s
Preview
Filed GR mM 8/1/2022 2:59 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Sylvie Le NO. 21-DCV-287907 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff § 458TH JUDICIAL DISTRICT V. § FORT BEND COUNTY, TEXAS NICOLE FLANNORY AKA NICOLE M § FLANNORY, Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: American Express National Bank, Plaintiff moves for Summary Judgment against Defendant(s), Nicole Flannory Aka Nicole M Flannory, respectfully showing the Court as follows: 1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated herein is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes as an attachment a true and correct copy of the applicable supporting account documents for account ll 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 TA agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 $.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id. at 202 (citing Prime Products, Ine. 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). Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14"] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . . We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Jd. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiffbe granted summary judgment against Defendant(s), Nicole Flannory Aka Nicole M Flannory, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $10,259.17 minus any payments received after filing this litigation, and 2. All costs of this proceeding. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE Litigation@ZwickerPC.com (281) 494-0300 (281) 494-0213 fax BY: ZA [ ] JOHNETTA LANG, ESQ. Sta ar Number 24036943 [{TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 [ ] DEIDRE HARRIS, ESQ. State Bar Number 24058586 [ ] AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE Thereby certify that on the & day of , 2022, this office served a true and correct copy of the foregoing in accordance wit le 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via [ ] First-Class Mail [v] E-Service [ ] Certified Mail DAVID A. FERNANDEZ 2190 N LOOP WEST STE 333 HOUSTON, TX 77018 SERVICE@YOURHOUSTONCONSUMERATTORNEY.COM aNETTA 1] tESQ. tLANG, [4 TREVON WATSON, ESQ. | ] TABITHA HAYNES, ESQ. | ] DEIDRE HARRIS, ESQ. [ |] AJEET BADESHA, ESQ. NO. 21-DCV-287907 AMERICAN EXPRESS NATIONAL § IN THE DISTRICT COURT BANK, Plaintiff § 458TH JUDICIAL DISTRICT Vv. § FORT BEND COUNTY, TEXAS NICOLE FLANNORY AKA NICOLE M_ § FLANNORY, 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 AMERICAN EXPRESS NATIONAL BANK V. NICOLE FLANNORY AKA NICOLE M FLANNORY EXHIBIT “A” Affidavit in Support of Judgment AMERICAN EXPRESS NATIONAL BANK V. NICOLE FLANNORY AKA NICOLE M FLANNORY NICOLE FLANNORY AKA NICOLE M FLANNORY Account ending in| AFFIDAVIT OF PLAINTIFF I, Raquel Hernandez, declare and state as follows: 1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK. ("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter), with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070. 2 In my capacity as Assistant Custodian of Records for American Express, I am familiar with the ongoing credit card business operations and practices of American Express, particularly with respect to its recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by American Express. I have access to the business records relating to credit card accounts issued by American Express, including, in particular, the records of cardmember accounts and the applicable card agreements. I have personal knowledge of American Express’ regular practices and procedures with respect to: (a) the transmittal of credit card account agreements, notices, billing statements, and other documents; and (b) quality assurance controls utilized to ensure that such transmittals are properly made. I also have access to and am generally familiar with the cardmember account records created and maintained by American Express. Except where based on my review of records and documents regularly maintained in the ordinary course of business, all of the matters set forth herein are within my personal knowledge and are true and correct and, if called as a witness, I could competently testify thereto. 3 The billing statements and other documents referred to herein were created at or near either the time of the transactions or the time the original statements were made and have been kept by American Express in the ordinary course of business. In my experience, the systems used by American Express to create and maintain data for and to produce billing statements and other documents are reliable and kept in a good state of repair, and American Express’ procedures for inserting transaction and other data into the systems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtained only by authorized American Express personnel or authorized agents pursuant to proper procedures, which must be followed in order to obtain the statements. The other records referred to herein were created and kept in the ordinary course of business by American Express and were created at or near the time of the occurrence of the matters set forth by those records and/or were created based upon information transmitted by a person with knowledge of the matters set forth in those records. It is the regular business practice of American Express to make and keep said records. The statements contained in this affidavit are made based on my personal knowledge of the business records practices of American Express. 4. All American Express credit card accounts are governed by a written agreement (the “Cardmember Agreement”) setting forth the terms and conditions of the account. When an American Express account is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreement provides that use of the card constitutes acceptance of the agreement. 5 All American Express Cardmember Agreements expressly provide that American Express may change the terms of the Cardmember Agreement from time to time. American Express advises current cardholders of changes through change-in-terms notices, which are either mailed to American Express cardmembers in separate mailings or included with or printed on the cardmembers’ monthly billing statements. ZATE TX_AENB_001 NICOLE FLANNORY AKA NICOLE M FLANNORY Account ending in 6. American Express maintains computerized records of the amounts due and owing to American Express for any transactions that occur when an individual uses an American Express credit card. The computerized records reflect all debits and credits in connection with the use of an American Express credit card. American Express sends or otherwise makes available monthly billing statements to cardmembers who carry a balance or are otherwise required to receive a monthly statement. 7 Ihave personally reviewed American Express’ records concerning defendant NICOLE FLANNORY AKA NICOLE M FLANNORY (“Defendant”). Those records reflect that Defendant opened an American Express credit card account, the current account number ending in 006 (the “Account”) in 06/2005. Consistent with American Express’ standard business practices, American Express’ records reflect that it mailed Defendant’s credit card, together with a copy of Defendant’s Cardmember Agreement, to Defendant when American Express opened Defendant’s Account. Copies of each of these Cardmember Agreements were transmitted to Defendant as they were periodically revised or updated. A true and correct copy of the Cardmember Agreement in effect at the time of cancellation of the Account is annexed hereto as Exhibit “A”. 8 American Express’ records further reflect that Defendant used the Account to pay for various goods and services and/or obtain cash advances. Consistent with American Express’ standard business practices, American Express’ records reflect that it transmitted monthly billing statements to Defendant. There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due and owing on the monthly statements provided to Defendant. 9. Pursuant to American Express’ records, under the terms of the Cardmember Agreement, Defendant defaulted in making the payments due on the Account. American Express’ records reflect that American Express closed Defendant’s Account. After giving Defendant credit for all payments made, if any, the amount justly due and owing as of 06/30/22 is $10,259.17, exclusive of court costs and attorneys’ fees. A true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s) 06/15/19 to 07/15/19 is annexed hereto as Exhibit “B”. 10. Defendant’s Account has not been sold or assigned by American Express, the original creditor of the account. ZATE TX_AENB 001 NICOLE FLANNORY AKA NICOLE M FLANNORY Account ending in| 11. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an infant, incompetent, under mental defect or infirm. oa 2 Dated: | s|20 ww By: Name: Raquel Hernandez Title: Assistant Custodian of Records STATE OF ARIZONA COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this oth (Seal) Notary GERD. DANIELA ARRIAGA ESPINOZA ees Notary Public - Arizona Maricopa County Wes Commission # 614491 My Comm. ExpiresOct 8, 2025 ZATE TX_AENB_001 EXHIBIT A BHICR = Cardmember Agreement: Part 1 of 2 As of: 01/01/2011 Rewards Plus Gold Card Cardmember Name: icole M — Issuer: American Express Centurion Bank Account Spending Limit: $1,000 Fees Table a Annual Membership Fee $150 Transaction Fees Foreign Transaction 2.7% of each transaction after conversion to US dollars. Penalty Fees Late Payment Up to $35; however, if you do not pay for two billing periods in a row, Upto ey fee will be $35.or 2.99% of the past due amount, whichever is greater. Returned Payment How we calculate interest: We use the Average Daily Balance methad (including new transactions). See the How we calculate interest section in Part 2. Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions. CMAEUAAO0000101 Page 1 of 9 How Rates and Fees Work atl Com Cora gM ON CM ELM oll Lele} RTP Tt Ol ee Oe ea eee Leelee Penalty APR for The penalty APR applies to new transactions if: If the Penalty APR applies to a balance, it will new transactions you do not pay at least the Minimum apply to charges added to that balance 15 or Payment Due by the Closing Date of the more days after we send you notice. illing period in which it is due 2 times in 12 billing periods, or We will review your Account every 6 months after your payment is returned by your bank. the Penalty APR is applied. The Penalty APR will continue to apply until you have made timely payments with no returned payments during the 6 months being reviewed. Penalty APR for If you do not pay at least the Minimum Payment Due within 60 days after its Payment Due Date, we existing balances can apply the penalty APR to those balances it does not already apply to. After you pay on time for 6 billing periods in a row, the penalty APR will no longer apply to those balances (but it may still apply to other balances as described above). meicd Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. We will not charge for the first 5 additional cards, we will charge $35 for each additional card thereafter. Late Payment Up to $35 or 2.99% of the amount past due. If you do not pay the Amount Due on a billing statement before the 10th day after the next Closing Date, the fee is $25. If this happens again within the next 6 billing periods, the fee is $35 instead. In both cases, if you do not pay the amount past due by the following Closing Date, we will charge, in that same billing period, the greater of $35 or 2.99% of the amount past due. For each subsequent billing period that an amount past due remains unpaid, the fee is the greater of $35 or 2.99% of any amount past due. However, the late fee will not exceed the Minimum Payment Due. Paying late may also result in a Penalty APR. See Penalty APR for new transactions and Penalty APR tor existing balances above. Returned Payment Up to $35. If your payment is returned unpaid the first time we present it to your bank, the fee is $25. If this happens again within the next 6 billing periods, the fee is $35. However, the returned payment fee will not exceed the Minimum Payment Due on the last Payment Due Date before the payment is returned. A returned payment may also result in a Penalty APR. See Penalty APR for new transactions above. Returned Check $38 if you use your card to cash a check at one of our approved locations and the check is returned unpaid. We will also charge you the unpaid amount. Statement Copy $5 for each statement you request, except for the 3 most recent billing periods. Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so. Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Converting charges made in a foreign currencyin Part 2. Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. CMAEUAA0000101 Page2 of 9 ANERICAN) Seness Cardmember Agreement: Part 2 of 2 CD 27737 introduction About your This document together with Part 1 make up the supplements or amendments are also part of the Cardmember Agreement Cardmember Agreement (Agreement) for the Agreement. When you use the Account (or you sign Account identified on page 1 of Part 1. Any orkeep the card), you agree to the terms of the Agreement, Changing the Agreement We may change this Agreement, subject to to some terms may require 45 days advance notice, applicable law. We may do this in response to the and we will tell you in the notice if you have the right business, legal or competitive environment. to reject a change. We cannot change certain terms We cannot increase the interest rate on existing during the first year of your Cardmembership. balances except in limited circumstances. Changes Words we use in We, us, and our mean the issuer shown on page 1 Card means any card or other device that we issue the Agreement of Part 1. You and your mean the person who to access your Account. A charge is any amount applied for this Account and for whom we opened added to your Account, such as purchases, fees and the Account. You and your also mean anyone who interest charges. A purchase is a charge for goods agrees to pay for this Account. You are the Basic or services. Cardmember, You may raquest a card for an To pay by a certain date means to send your Additional Cardmember (see About Additional Cardmembers in Part 2). payment so that we receive it and credit it to your Account by that date (see About your payments in Part 2). About using your card Using the card You may use the card to make purchases. You may not required to) tell these merchants about your also use the card at an ATM to get cash from a Account status or changes to your card number or checking account you designate. expiration date. You must notify the merchants We decide whether to approve a charge based on directly if you want them to stop charging your how you spend and pay on this Account and other \ecount, accounts you have with us and our affiliates. We also Keep your card safe and don t let anyone else use it. consider your credit history and your personal If your card is lost or stolen or your Account is being resources that we know about. used without your permission, contact us right away. You may arrange for cerlain merchants to charge You may not use your Account for illegal activities. your Account at regular intervals. We may (but are Promise to pay You promise to pay all charges, including: charges you make, even if you do not present your card or sign for the transaction, charges that other people make if you let them use your Account, and charges that Additional Cardmembers make or permit others to make. Declined transactions We may decline to authorize a charge. Reasons we We are not responsibie for any losses you incur if we may do this include suspected fraud and our do not authorize a charge. And we are not assessment of your creditworthiness. This may occur responsible if any merchant refuses to accept the even if your Account is not in default, card. About Pay Over We may add features to your Account that allow you outside the U.S. If you enroll in the Extended Time features to pay certain charges over time. These features Payment Option, we will automatically place all include Select & Pay Later, Sign & Travel® and the eligible charges into a Pay Over Time balance. A Extended Payment Option. charge is eligible if it equals or is more than a certain Select & Pay Later lets you pay a charge over time in dollar amount. We will tell you this amount when you two ways. You may ask a travel industry merchant at enroll, and it is subject to change. We will tell you if the time you make the charge, or ask us after the we change it. Certain charges are not eligible, such charge appears on your statement. If we approve as cash and similar transactions. your request, we will place the charge into a Pay We will not place any charge into a Pay Over Time Over Time balance. If we decline your request, you balance if it causes the total of your Pay Over Time must pay the charge in full upon receipt of your balances to go over $35,000. We will tell you if we billing statement, change that amount. You must pay in full all charges Hf you enroll in Sign & Travel, we will automatically that are not placed into a Pay Over Time balance place eligible travel-related charges into a Pay Over upon receipt of your billing statement. We may Time balance. Some examples are airline and cruise change which charges are eligible to be placed into ship tickets, hotels, car rentals and charges made a Pay Over Time balance. CMAEUACM0000101 Page 3 of 9 About your payments When you must pay Payment of the New Balance is due upon receipt of of the same day it is received. your statement. If a statement includes a Pay Over Time balance, it will show a Minimum Payment Due. Each statement also shows a Closing Date. The In this case, you must pay at least the Minimum Closing Date is the last day of the billing period covered by the statement. Each Closing Date is Payment Due by the Payment Due Date. Each about 30 days after the previous statement s Closing ‘statement also states the time and manner by which Date. you must make your payment for it to be credited as How to make payments Make payments to us in U.S. dollars with: your billing statement. If we receive it after that time, a single check drawn on a U.S. bank, or we will credit the payment on the day after we a single negotiable instrument clearable through receive it. the U.S. banking system, for example a money If your payment does not meet the above order, or requirements, there may be a delay in crediting your an electronic payment that can be cleared through Account. This may result in late fees and additional the U.S. banking system. interest charges (see How Rates and Fees Workon When making a payment by mail: page 2 of Part 1). make a separate payment for each account, If we decide to accept a payment made in a foreign mail your payment to the address shown on the payment coupon on your billing statement, and currency, we will choose a rateto convert your write your Account number on your check or payment into U.S. dollars, unless the law requires us to use a particular rate. negotiable instrument and include the payment coupon. It we process a late payment, a partial payment or a If your payment meets the above requirements, we payment marked with any restrictive language, that will have no effect on our rights and will not change will credit it to your Account as of the day we receive this Agreement. it, as long as we receive it by the time disclosed in How we apply payments Ifa statement includes a Pay Over Time balance, it rate and then to balances with higher interest rates. and credits will show a Minimum Payment Due. The Minimum Aiter the Minimum Payment Due has been paid, we Payment Due is the Pay In Full New Balance plus apply payments to the remaining Pay Over Time bal- the Pay Over Time Minimum Due. ance. When we do this, we apply payments first to Ifyou have a Pay Over Time balance, we generally the balance with the highest interest rate and then to apply payments up to the Minimum Payment balances with lower interest rates. Due first to the Pay Over Time Minimum Due and then to the Pay In Full New Balance. When applying In most cases, we apply a credit to the same bal- @ payment to the Pay Over Time Minimum Due, we ance as the related charge. We may apply payments and credits within balances, and among balances apply it first to the balance with the lowest interest with the same interest rate, in any order we choose. About your Minimum Payment Due How we calculate your The imum Payment Due is the Pay In Full amount plus any Pay Over Time Mi um Due. Minimum Payment Due To calculate the Pay Over Time Minimum Due for i se each statement, we start with the highest of the = fin following three amounts: We (1) 2% of the Pay Over Time New Balance: or (2) interest charged on the statement plus 1% of the Pay Over Time New Balance (excluding interest cs710 td ‘on the statement), not to exceed 4% of the Pay oa Over Time New Balance; or (3) $20. ‘Then we round to the nearest dollar. After that, we 3) 2020) add any Pay Over Time amount past due. 0. eenD However, your Pay Over Time Minimum Due will not | St we exceed your Pay Over Time New Balance. Adjusting your Pay Over Hf you regularly pay more than the Minimum Payment Due described above, we may adjust the Pay Over Time Minimum Due Time Minimum Due in future billing periods. This may let you make a smaller minimum payment from time to time. But if you then do not regularly pay more than the Minimum Payment Due described above, we will ‘stop making the adjustment and return to the formula above. If we start or stop making the adjustment, we will do so for at least six billing periods in a row. To adjust the Pay Over Time Minimum Due, we will not. add 1% of the Pay Over Time New Balance in (2). Then, if (2) is the highest (but less than 4% of the Pay Over Time New Balance), we will add $15. continuedon next page... CMAEUACMO0000101 Page 4 of 9 AMERICAN]=o ss ..continued from previous page We will do this if over six billng periods the sum of payments credited to your Pay Over Time balance is more than the sum of the Pay Over Time Minimum Dues (not adjusted, except any Pay Over Time amount past due Is counted only in the first of those six periods). We will also make the adjustment if over six billing periods the sum of the Pay Over Time Minimum Dues (not adjusted) is not more than $120 and equals the ‘sum of payments credited to your Pay Over Time balance. However, we will not make the adjustment if the sum of the Pay Over Time Minimum Dues is zero and we did not adjust the Pay Over Time Minimum Due the last time it was not zero. About interest charges on Pay Over Time balances When we charge interest For charges added at your request Ifyou pay the Account Total New Balance on a We charge interest on charges that are added at ‘statement by the Closing Date shown on the next your request to a Pay Over Time balance as of the ‘statement, then on that next statement we will not date the charge is added. If you pay the Account charge interest on those charges. Total New Balance on a statement by the Closing Ifyou paid the Account Total Previous Balance on a Date on the next statement, then on that next ‘statement we will not charge interest on any Pay statement by its Closing Date, and you pay less than the Account Total New Balance on that statement by Over Time portion of that Account Total New the Closing Date of the next statement, then we will Balance. not charge interest on the portion of automatically For charges added automatically added charges that we apply your payment to. But We charge interest on charges that are added we will charge interest on the remaining portion of automatically to a Pay Over Time balance beginning those charges. ‘on the transaction date. However, you can avoid Also, we will not charge interest an automatically paying interest on those charges as described added charges shown on a statement if the Account below. Total Previous Balance on that statement is zero or @ credit balance. How we calculate interest We calculate interest for a billing period by first figuring the interest on each balance. Balances within each feature such as Select & Pay Later, Sign & Travel and Extended Payment Option may have different interest rates. We use the Average Daily Balance method Dally Balance (including new transactions) to figure interest For each day a DPR is in effect, we figure the daily charges for each balance. The total interest charged balance by: for a billing period is the sum of the interest charged taking the beginning balance for the day, ‘on each balance. adding any new charges, Interest subtracting any payments or credits; and The interest charged for a balance in a billing period, making any appropriate adjustments. except for variations caused by rounding, equals: We add a new charge to a daily balance as of its Average Daily Balance (ADB) x transaction date. Daily Periodic Rate (DPR) x Beginning balance number of days the DPR was in effect. For the first day of a billing period, the beginning ADB balance is the ending balance for the prior billing To get the ADB for a balance, we add up its daily period, including unpaid interest. For the rest of the balances. Then we divide the result by the number billing period, the beginning balance is the previous of days the DPR for that balance was in effect. If the day s daily balance plus an amount of interest equal daily balance is negative, we treat it as zero. to the previous day s daily balance multiolied by the DPR OPR for that balance. This method of figuring the A DPR Is 1/365th of an APR, rounded to one ten- beginning balance results in daily compounding of thousandth of a percentage point. Your DPRs are interest. shown in How Rates and Fees Work on page 2 of When an interest rate changes, the new DPR may Part 1. come into effect during not just at the beginning of the billing period. When this happens, we will uh create a new balance and apply the new DPR to it. To get the beginning balance on the first day for this new balance, we multiply the previous day s dally balance by the old DPR and add the result to that day s daily balance. Other methods hel To figure the ADB and interest charges, we may use other formulas or methods that produce equivalent results. Also, we may choose not to charge interest on certain types of charges. CMAEUACM0000101 Page 5 of 9 Determining the We use the Prime Rate from the Money Rates use the Prime Rate from any other newspaper of Prime Rate ‘section (or successor section) of The Wall Sireet general circulation in New York, New York. Or we Journal. The Prime Rate for each billing period is the may choose to use a similar published rate. Prime Rate published in The Wal! Street Journal 2 Ifthe Prime Rate increases, variable APRs (and days before the Closing Date of the billing period. corresponding DPRs) will increase. in that case, you The Wail Street Journal may not publish the Prime may pay more interest and may have a higher Rate on that day. If it does not, we will use the Prime Minimum Payment Due. When the Prime Rate Rate from the previous day it was published. If The changes, the resulting changes to variable APRs Wall Street Journals no longer published, we may take effect as of the first day of the billing period. Other important information About Additional At your request, we may issue cardsto Additional You authorize us to give Additional Cardmembers Cardmembers Cardmembers. They do not have accounts with us information about your Account and to discuss it with but they can use your Account s