Preview
Filed
8/2/2022 10:19 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Erica Rodriguez
NO. 20-DCV-277815
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 400TH JUDICIAL DISTRICT
v.
§ FORT BEND COUNTY, TEXAS
KATHY DEBAY, §
Defendant(s) §
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Kathy
Debay, 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 {iil
Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil
Procedure, which states that the judgment sought shall be rendered forthwith if the
summary judgment evidence shows that there is no genuine issue if material fact and the
moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v.
Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ).
BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1] 2007, no pet.),
the court held that a valid contract was formed by evaluating the terms of the cardmember
agreement. The language in the agreement here and in Winchek is nearly identical in parts
relevant to the Court’s decision.
4. Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20,
2008) (citations omitted).
7. Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show. ..damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. . . We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Jd. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for
hearing and that after hearing the Court rule that there is “no genuine issue of material fact and
that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Kathy Debay, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$16,707.17 minus any payments received after filing this litigation, and
Post-judgment interest on said sums from the date of Judgment until paid at
5% which is the legal rate per annum under §304.004, TEX. FINANCE
CODE.
Costs of this proceeding in the amount of $378.17.
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_Liti igation@ZwickerPC.com
(281) 494-0390
(281) aX)
BY:
[ ] JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
&*DEIDRE HARRIS, ESQ.
[ ] AJEET BADESHA, ESQ.
NO. 20-DCV-277815
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
400TH JUDICIAL DISTRICT
v.
§ FORT BEND COUNTY, TEXAS
KATHY DEBAY,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff
Includes True and Correct Copy of Applicable Supporting Account Documents
Exhibit “B” Non-Military Status Verification
Attachments Include:
Official Printout from the United States Department of Defense-Manpower Data Center that
Defendant is Not an Active Member of the Armed Forces Currently on Duty
DISCOVER BANK V. KATHY DEBAY
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. KATHY DEBAY
ACCOUNT NUMBER: XXXXXXXKKK
BALANCE: $16,707.17
CARDMEMBER (S): KATHY DEBAY
STATE OF OHIO
COUNTY OF FRANKLIN.
<
Yisk Phylligs . personally appeared before me, on this day and after being duly sworn,
according to law, and ‘upon my oath and states as follows:
[ama Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB
SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware
State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account
records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard
to payments owed on those accounts.
This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account
against the Cardmember(s).
In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records
regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS
INC. maintains these records in the ordinary course of its business, and the records are updated with
information on events (such as charges and payments on the account) by individuals with personal knowledge
of those events or by automated processes that track such events at or near the time that the events occur. The
same systems that record this information also generate periodic statements that are sent to Discover
Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping
systems contain information about which version of Discover Bank’s terms and conditions has been
communicated to an account holder and accepted by an account holder through the use of his or her Discover
Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the
account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by
DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said
account and whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that
account statements were generated, such statements were either provided to the Cardmember(s)
electronically or mailed to the Cardmember(s) at the address maintained on file during that time period.
According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated
with the Cardmember(s) is/are:
1514 COUNTRY CLUB BLVD
SUGAR LAND, TX 77478
The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover
Bank on the account.
The business records maintained by DISCOVER PRODUCTS INC. and described above show that the
Cardmember(s)° account with Discover Bank is governed by terms and conditions referred to as “terms level
26K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS
INC.’s counsel in this case and is attached hereto as Exhibit A.
Exhibit B includes true and accurate copies of periodic statements, retrieved from the record-keeping system
described above, and shows the amount that is now due and owing Discover Bank on the account.
DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department
of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in
active dut in any branch of the U.S. military, It is the regular practice of DISCOVER PRODUCTS INC. to
query this system with respect to any account holder prior to initiating a collection action against that account
holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the
results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of
my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of
the United States.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
DRL
AbeaS
SUBSCRIBED TO AND SWORN TO before me this day of » 2022.
lic
pea SHERYL L GEORGE
NOTARY PUBLIC - OHIO
MY COMMISSION EXPIRES 05-27-24
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nan
EXHIBIT A
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DISC@VER CARDMEMBER AGREEMENT
Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3.
ACCEPTANCE OF AGREEMENT
You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the
Account. You may, however, reject the “Arbitration of Disputes" section as explained in that section.
CHANGES TO YOUR AGREEMENT
The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. if required by law, we will give you
advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law.
USING YOUR ACCOUNT
Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use it for illegal transactions.
Authorized Users You may request additional Cards for Authorized Users. You must notify us if you wish to cancel the authority of an Authorized User to use your Account.
Joint Accounts Ifyour Account is a joint Account
+ each of you agrees to be liable individually and jointly for the entire amount awed on the Account; and
any notice we mail to an address provided by either of you for the Account will serve as notice to both of you.
Checks If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay
any amount you owe us.
Credit Authorizations We may not authorize a transaction for security or other reasons, We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card,
Check or Account number,
Credit Lines We will tell you what your Account credit line is, You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your
balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your avallable
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 billing periods. Otherwise,
Due by the Payment Due Date. After that, if you do not pay the Minimum Payment the fee is $37. 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 $27 if you immediately prior to the date on which the fee was assessed,
Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $37. 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 $27 if you were not charged a Returned Payment Fee during which the payment was returned tous,
ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same
adding the number of percentage points 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 deposit in the U.S. billing statement,
You must pay us for all amounts due on your Account. This includes charges made ffyou mail your payment to 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 wil charge your Account our cst to convert it to U.S, dalle. ¢ Ifa third party makes a payment on 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
ofa settlement.
Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any + $20, plus any of the following charges as shown on your billing statement: fees
time, Each billing period you must pay at least the Minimum Payment Due by the for any debt protection product that you enrolled in on or after 2/1/2015; interest
Payment Due Date shown on your biling statement, The Minimum Payment Due Charges; and Late Fees,
will be any amount past due plus the greater of: The Minimum Payment Due may also include amounts by which you exceed
© $35; or your Account credit line, However, it will never exceed the New Balance. When
+ 2% of the New Balance shown on your bilng statement; or we calculate the Minimum Payment Due, we may subtract from the New Balance
certain fees added to your Account during the billing period. The Minimum Payment
Due is rounded up to the nearest dollar.
©2018 Discover Bank, Member FDIC
MAKING PAYMENTS
How We Apply Payments We apply payments and credits at our discretion, including ‘n 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 la. 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—Dail jalance balance” for each Transaction Category. Transaction Categories include standard Interest” section).
Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges
transactions)
Balance Transfers. » We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate, We do ths for each day in the bling per , This gives us the interest charges
«We start with the beginning balance for each day. The beginning balance for foreach Transaction Category. To get a daily periodic rate, we divide the APR that
applies to the Transaction Categor 365.
the first day of the billing period is your balance on the last day of your previous
biling period, © We add up all the daily interest charges. The sum is the total interest charge for
the billing period,
« 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 laterof 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 Due Date shown on that billing statement, we will not impose interest charges on
‘We begin to impose interest charges on a transaction, fee or interest charge from new Purchases, or any portion of a new Purchase, paid by the Payment Due Date
the day we add it to the daily balance. We continue to impose interest charges ‘on your current billing statement. New Purchases are Purchases that first appear
until you pay the total amount you owe us. You can avoid paying interest on on the current billing statement.
Purchases as described below. However, you cannot avoid paying interest on How We Apply Payments May Impact Your Grace Period
Balance Transfers or Cash Advances. Ifyou 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
{f you paid the New Balance on your previous billing statement by the Payment ‘new Purchases.
OTHER IMPORTANT INFORMATION
Default You are in default if: * you fail to comply with the terms of this Agreement or any Agreement with us or
you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding
‘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 are 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 use an attomey to collect your Account, we may charge you cur legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs,
and fees and costs of any appeal.
Merchant Disputes ‘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 a merchant, contact the merchant, wallet provider, or other third-party directly or remove your
Information Updates wallet provider, or other third party. If your card information changes, which may credit card information from the merchant site, wallet provider, or third-party if you
include billing address, you authorize us to provide this updated information to any wish to stop automatic billing or account updates,
such merchant, wallet provider, or other third-party at our discretion. You must
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
It summarizes: + how you can limit our sharing of this information.
the personal information we collect;
Reporting to Credit ‘We may from timeto time review your credit, employment and income records. We may If you believe that information we reported is inaccurate or incomplete, please write
Reporting Agencies report the status and payment history of your Account to credit reporting agencies and Us at Discover, PO Box 15316, Wilmington, DE 19850-5316. Please include your name,
other creditors. We normally report to credit reporting agencies each month, address, home phone number and Account number,
Our Communications You agree that we (and our affiliates, agents, and contractors) may monitor or such as calling, texting, or email. We may contact you using an automated dialer
with You record any calls between you and us. If we need to contact you to service your or using pre-recorded voice messages. Discover Bank, its affiliates and agents
Account or to collect amounts you owe to us, you authorize us {and our affiliates, ‘may call you, which includes text messages, about any current or future accounts
agents and contractors) to contact you at any number (i) you have provided to us, or applications, regarding all products you have or may have with Discover Bank
(ii) from which you called us, or (ii) which we obtained and believe we can reach at any phone number you provide. We may contact you on a mobile, wireless, or
you at. You must notify us if your number changes. We may contact you in any way, similar device, even if you are charged for it by your provider.
Unauthorized Use You must notify us immediately if:
* your Card is lost or stolen; or
© you believe someone is using your Account or a Card without your permission,
Qe
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 If 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 U.S. 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 faw and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the
statute of limitations of the state where the lawsuit is filed will apply, without regardto that state's conflicts of laws principles or its "borrowing statute.”
Severability If any part of this Agreement is found to be invalid, the rest of it will stil remain in effect. However, if the Class Action Waiver in the “Arbitration of Disputes" section is
invalidated in any proceeding in which you and we are involved, then the “Arbitration of Disputes" section will be void with respect to that proceeding.
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 US, 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 US, 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 writing to Discover, PO 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 e-mail address, mailing address or phone number.
DEFINITIONS
“Account” means your Discover card account. “Pricing Schedule” means the document entitled, "Pricing Schedule”, which lists the APRs that
“Affiliate” means our parent corporations, subsidiaries and affiliates, apply to your Account and other important information.
“Authorized User” means any person you authorize to use your Account or a Card, whether you “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
notify us or not. section of The Wail Street Journalon the last business day of the month.
“Balance Transfer” means a balance transferred from another creditor to your Account. “Purchase” means the use of your Account to purchase or lease goods or services at
Card” means any one or more Discover cards issued to you or someone else with your authorization.
participating merchants,
"We," “us” and “our” refer to Discover Bank, the issuer of your Card.
“Cash Advance” means the use of your Account to:
"You," “your” or "yours" refer to you and any other person(s) who are also contractually liable
* obtain cash from participating automated teller machines, financial institutions or other locations;
under this Agreement.
© purchase lottery tickets, money orders, casino chips, foreign currency or similar items, “Transaction Date” means the date shown on your billing statement fora transaction or fee.
“Check” means any check we send to you to access your Account.
ARBITRATION
Agreement to arbitrate, In the event of a dispute between you ‘or a dependent of such a member covered by the federal severed from the arbitration and may be brought in court.
and us arising out of or relating to this Account or the relationships Military Lending Act. If you would like more information Only a court, and not an arbitrator, shall determine the
resulting from this Account or any other dispute between you about whether you are covered by the Military Lending Act, validity, scope, and effect of the Class Action Waiver.
or us ("Claim"), either you or we may choose to resolve 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
Claim by binding arbitration, as described below, instead of in if you are calling from outside the US at +1-801-451-3730.
to arbitrate any individual claim you bring in small claims court
court. Any Claim {except for a claim challenging the validity or CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN
enforceability of this arbitration agreement, including the Class or your state’s equivalent court. However, if such a claim is
INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY
Action Waiver) may be resolved by binding arbitration if either JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR transferred, removed or appealed to a different court, we may
side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR then choose to arbitrate.
ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER Governing Law and Rules. This arbitration agreementis governed
LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO. OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. by the Federal Arbitration Act (FAA), Arbitration must proceed only
DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. The arbitrator may award injunctive relief only in favor of the with the American Arbitration Association (AAA) or JAMS. The
Even if all parties have opted to litigate a Claim in court, you or individual party seeking relief and only to the extent necessary tules for the arbitration will be those in this arbitration agreement
we may elect arbitration with respect to any Claim made by to provide relief warranted by that party's individual claim, If and the procedures of the chosen arbitration organization, but
‘a new party or any new Claims later asserted in that lawsuit. a court decides that applicable law precludes enforcement the rules in this arbitration agreement will be followed if there
This Arbitration Provision does not apply if, on the date you of any of this paragraph’s limitations as to a particular claim is disagreement between the agreement and the organization's
submit your Application or on the date we seek to invoke our for relief, then after all apoeals from that decision have
procedures, If the organization's procedures change after the claim
arbitration provision, you are a member of the Armed Forces been exhausted, that claim land only that claim) must be
isle,the procedures
in effect when the claim was filed will apply.
3.
3
ARBITRATION
For a copy of each organization's procedures, to file a claim or for * Issue a written decision including the reasons for the award, Any arbitration award may be enforced (such as through a
other information, please contact: The arbitrator's decision will be final and binding except for any judgment) in any court with jurisdiction.
¢ AMAat 1101 Laurel Oak Ral, Voorhees, NJ 08043, wawvadr.org review allowed by the FAA. However, if more than $100,000 was Other Beneficiaries of this Provision. in addition to you and
(phone 1-877-495-4185)or genuinely in dispute, then eitheryou or we may choose to appeal to us, the rights and duties described in this arbitration agreement
© JAMS at 620 Eighth Ave, Floor34, New York, NY 10018, www. anew panel of three arbitrators, The appellate panel is completely apply to: our Affiliates and our and their officers, directors and
jarrsadt.com (phone 1-800-352-5267). free to acceptor reject the entire original award or any part of it employees; any third party co-defendant of a claim subject to this
The appeal must be filed with the arbitration organization not later arbitration provision; and all joint Accountholders and Authorized
If both AAA and JAIVS are completely unavailable, and if you and
than 30 days after the original award issues. The appealing party Users of your Accounts).
‘we cannot agree on a substitute, then either you or we may request
‘that a court with jurisdiction appoint a substitute. pays all appellate costs unless the appellate panel determines Survival of this Provision,
This arbitration provision shall survive:
otherwise as part of its award. + closing of your Account;
Fees and Costs. If you wish to begin arbitration against us but
Claim Notice and Special Payment. If you have a Claim, before voluntary payment of your Account or any part of it,
you cannot afford to pay the organization's or arbitrator's costs, we
will advance those costs if you ask us in writing, Any request ike initiating an arbitration proceeding, you may give us written notice © any legal proceedings to collect money you owe;
this should be sent to Discover, PO Box 30421, Sait Lake City, UT of the Claim (“Claim Notice”) at least 30 days before initiating the
* any bankruptcy by you; and
84130-0421. If you lose the arbitration, the arbitrator will decide arbitration proceeding. The Claim Notice must include your name,
address, and account number and explain in reasonable detail the any sale by us of your Account,
whether you must reimburse us for money we advanced for you You Have the Right to Reject Arbitration for this Account.
for the arbitration. If you win the arbitration, we will not ask for nature of the Claim and any supporting facts. Any Claim Notice
shall be sent to us at Discover, P.0, Box 794, Deerfield, IL 60015 You may reject the arbitration agreement but only if we
reimbursement of money we advanced. Additionally, if you win the receive from you a written notice of rejection within
arbitration, the arbitrator may decide that you are entitled to be (or such other address as we shall subsequently provide to you).
If, and only if, {1) you submit a Claim Notice in accordance with 30 days of your receipt of the Card after your Account is
reimbursed your reasonable attorneys fees and costs (if
Preview
Filed 8/2/2022 10:19 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Erica Rodriguez NO. 20-DCV-277815 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 400TH JUDICIAL DISTRICT v. § FORT BEND COUNTY, TEXAS KATHY DEBAY, § Defendant(s) § PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Kathy Debay, 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 {iil Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil Procedure, which states that the judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue if material fact and the moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v. Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ). BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. 4. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20, 2008) (citations omitted). 7. Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show. ..damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . . . We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Jd. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Kathy Debay, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $16,707.17 minus any payments received after filing this litigation, and Post-judgment interest on said sums from the date of Judgment until paid at 5% which is the legal rate per annum under §304.004, TEX. FINANCE CODE. Costs of this proceeding in the amount of $378.17. 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_Liti igation@ZwickerPC.com (281) 494-0390 (281) aX) BY: [ ] JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 &*DEIDRE HARRIS, ESQ. [ ] AJEET BADESHA, ESQ. NO. 20-DCV-277815 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff 400TH JUDICIAL DISTRICT v. § FORT BEND COUNTY, TEXAS KATHY DEBAY, Defendant(s) EXHIBIT LIST FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff Includes True and Correct Copy of Applicable Supporting Account Documents Exhibit “B” Non-Military Status Verification Attachments Include: Official Printout from the United States Department of Defense-Manpower Data Center that Defendant is Not an Active Member of the Armed Forces Currently on Duty DISCOVER BANK V. KATHY DEBAY EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. KATHY DEBAY ACCOUNT NUMBER: XXXXXXXKKK BALANCE: $16,707.17 CARDMEMBER (S): KATHY DEBAY STATE OF OHIO COUNTY OF FRANKLIN. < Yisk Phylligs . personally appeared before me, on this day and after being duly sworn, according to law, and ‘upon my oath and states as follows: [ama Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard to payments owed on those accounts. This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account against the Cardmember(s). In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS INC. maintains these records in the ordinary course of its business, and the records are updated with information on events (such as charges and payments on the account) by individuals with personal knowledge of those events or by automated processes that track such events at or near the time that the events occur. The same systems that record this information also generate periodic statements that are sent to Discover Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping systems contain information about which version of Discover Bank’s terms and conditions has been communicated to an account holder and accepted by an account holder through the use of his or her Discover Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmember(s) have made payments on that balance. According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that account statements were generated, such statements were either provided to the Cardmember(s) electronically or mailed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is/are: 1514 COUNTRY CLUB BLVD SUGAR LAND, TX 77478 The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover Bank on the account. The business records maintained by DISCOVER PRODUCTS INC. and described above show that the Cardmember(s)° account with Discover Bank is governed by terms and conditions referred to as “terms level 26K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached hereto as Exhibit A. Exhibit B includes true and accurate copies of periodic statements, retrieved from the record-keeping system described above, and shows the amount that is now due and owing Discover Bank on the account. DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in active dut in any branch of the U.S. military, It is the regular practice of DISCOVER PRODUCTS INC. to query this system with respect to any account holder prior to initiating a collection action against that account holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of the United States. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. DRL AbeaS SUBSCRIBED TO AND SWORN TO before me this day of » 2022. lic pea SHERYL L GEORGE NOTARY PUBLIC - OHIO MY COMMISSION EXPIRES 05-27-24 Oro nan EXHIBIT A BICR CM. TL26K.LIN.O218 DISC@VER CARDMEMBER AGREEMENT Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3. ACCEPTANCE OF AGREEMENT You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the Account. You may, however, reject the “Arbitration of Disputes" section as explained in that section. CHANGES TO YOUR AGREEMENT The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. if required by law, we will give you advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law. USING YOUR ACCOUNT Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use it for illegal transactions. Authorized Users You may request additional Cards for Authorized Users. You must notify us if you wish to cancel the authority of an Authorized User to use your Account. Joint Accounts Ifyour Account is a joint Account + each of you agrees to be liable individually and jointly for the entire amount awed on the Account; and any notice we mail to an address provided by either of you for the Account will serve as notice to both of you. Checks If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay any amount you owe us. Credit Authorizations We may not authorize a transaction for security or other reasons, We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card, Check or Account number, Credit Lines We will tell you what your Account credit line is, You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your avallable 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 billing periods. Otherwise, Due by the Payment Due Date. After that, if you do not pay the Minimum Payment the fee is $37. 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 $27 if you immediately prior to the date on which the fee was assessed, Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $37. 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 $27 if you were not charged a Returned Payment Fee during which the payment was returned tous, ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same adding the number of percentage points 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 deposit in the U.S. billing statement, You must pay us for all amounts due on your Account. This includes charges made ffyou mail your payment to 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 wil charge your Account our cst to convert it to U.S, dalle. ¢ Ifa third party makes a payment on 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 ofa settlement. Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any + $20, plus any of the following charges as shown on your billing statement: fees time, Each billing period you must pay at least the Minimum Payment Due by the for any debt protection product that you enrolled in on or after 2/1/2015; interest Payment Due Date shown on your biling statement, The Minimum Payment Due Charges; and Late Fees, will be any amount past due plus the greater of: The Minimum Payment Due may also include amounts by which you exceed © $35; or your Account credit line, However, it will never exceed the New Balance. When + 2% of the New Balance shown on your bilng statement; or we calculate the Minimum Payment Due, we may subtract from the New Balance certain fees added to your Account during the billing period. The Minimum Payment Due is rounded up to the nearest dollar. ©2018 Discover Bank, Member FDIC MAKING PAYMENTS How We Apply Payments We apply payments and credits at our discretion, including ‘n 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 la. 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—Dail jalance balance” for each Transaction Category. Transaction Categories include standard Interest” section). Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges transactions) Balance Transfers. » We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate, We do ths for each day in the bling per , This gives us the interest charges «We start with the beginning balance for each day. The beginning balance for foreach Transaction Category. To get a daily periodic rate, we divide the APR that applies to the Transaction Categor 365. the first day of the billing period is your balance on the last day of your previous biling period, © We add up all the daily interest charges. The sum is the total interest charge for the billing period, « 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 laterof 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 Due Date shown on that billing statement, we will not impose interest charges on ‘We begin to impose interest charges on a transaction, fee or interest charge from new Purchases, or any portion of a new Purchase, paid by the Payment Due Date the day we add it to the daily balance. We continue to impose interest charges ‘on your current billing statement. New Purchases are Purchases that first appear until you pay the total amount you owe us. You can avoid paying interest on on the current billing statement. Purchases as described below. However, you cannot avoid paying interest on How We Apply Payments May Impact Your Grace Period Balance Transfers or Cash Advances. Ifyou 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 {f you paid the New Balance on your previous billing statement by the Payment ‘new Purchases. OTHER IMPORTANT INFORMATION Default You are in default if: * you fail to comply with the terms of this Agreement or any Agreement with us or you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding ‘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 are 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 use an attomey to collect your Account, we may charge you cur legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal. Merchant Disputes ‘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 a merchant, contact the merchant, wallet provider, or other third-party directly or remove your Information Updates wallet provider, or other third party. If your card information changes, which may credit card information from the merchant site, wallet provider, or third-party if you include billing address, you authorize us to provide this updated information to any wish to stop automatic billing or account updates, such merchant, wallet provider, or other third-party at our discretion. You must 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 It summarizes: + how you can limit our sharing of this information. the personal information we collect; Reporting to Credit ‘We may from timeto time review your credit, employment and income records. We may If you believe that information we reported is inaccurate or incomplete, please write Reporting Agencies report the status and payment history of your Account to credit reporting agencies and Us at Discover, PO Box 15316, Wilmington, DE 19850-5316. Please include your name, other creditors. We normally report to credit reporting agencies each month, address, home phone number and Account number, Our Communications You agree that we (and our affiliates, agents, and contractors) may monitor or such as calling, texting, or email. We may contact you using an automated dialer with You record any calls between you and us. If we need to contact you to service your or using pre-recorded voice messages. Discover Bank, its affiliates and agents Account or to collect amounts you owe to us, you authorize us {and our affiliates, ‘may call you, which includes text messages, about any current or future accounts agents and contractors) to contact you at any number (i) you have provided to us, or applications, regarding all products you have or may have with Discover Bank (ii) from which you called us, or (ii) which we obtained and believe we can reach at any phone number you provide. We may contact you on a mobile, wireless, or you at. You must notify us if your number changes. We may contact you in any way, similar device, even if you are charged for it by your provider. Unauthorized Use You must notify us immediately if: * your Card is lost or stolen; or © you believe someone is using your Account or a Card without your permission, Qe 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 If 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 U.S. 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 faw and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regardto that state's conflicts of laws principles or its "borrowing statute.” Severability If any part of this Agreement is found to be invalid, the rest of it will stil remain in effect. However, if the Class Action Waiver in the “Arbitration of Disputes" section is invalidated in any proceeding in which you and we are involved, then the “Arbitration of Disputes" section will be void with respect to that proceeding. 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 US, 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 US, 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 writing to Discover, PO 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 e-mail address, mailing address or phone number. DEFINITIONS “Account” means your Discover card account. “Pricing Schedule” means the document entitled, "Pricing Schedule”, which lists the APRs that “Affiliate” means our parent corporations, subsidiaries and affiliates, apply to your Account and other important information. “Authorized User” means any person you authorize to use your Account or a Card, whether you “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates notify us or not. section of The Wail Street Journalon the last business day of the month. “Balance Transfer” means a balance transferred from another creditor to your Account. “Purchase” means the use of your Account to purchase or lease goods or services at Card” means any one or more Discover cards issued to you or someone else with your authorization. participating merchants, "We," “us” and “our” refer to Discover Bank, the issuer of your Card. “Cash Advance” means the use of your Account to: "You," “your” or "yours" refer to you and any other person(s) who are also contractually liable * obtain cash from participating automated teller machines, financial institutions or other locations; under this Agreement. © purchase lottery tickets, money orders, casino chips, foreign currency or similar items, “Transaction Date” means the date shown on your billing statement fora transaction or fee. “Check” means any check we send to you to access your Account. ARBITRATION Agreement to arbitrate, In the event of a dispute between you ‘or a dependent of such a member covered by the federal severed from the arbitration and may be brought in court. and us arising out of or relating to this Account or the relationships Military Lending Act. If you would like more information Only a court, and not an arbitrator, shall determine the resulting from this Account or any other dispute between you about whether you are covered by the Military Lending Act, validity, scope, and effect of the Class Action Waiver. or us ("Claim"), either you or we may choose to resolve 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 Claim by binding arbitration, as described below, instead of in if you are calling from outside the US at +1-801-451-3730. to arbitrate any individual claim you bring in small claims court court. Any Claim {except for a claim challenging the validity or CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN enforceability of this arbitration agreement, including the Class or your state’s equivalent court. However, if such a claim is INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY Action Waiver) may be resolved by binding arbitration if either JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR transferred, removed or appealed to a different court, we may side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR then choose to arbitrate. ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER Governing Law and Rules. This arbitration agreementis governed LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO. OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. by the Federal Arbitration Act (FAA), Arbitration must proceed only DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. The arbitrator may award injunctive relief only in favor of the with the American Arbitration Association (AAA) or JAMS. The Even if all parties have opted to litigate a Claim in court, you or individual party seeking relief and only to the extent necessary tules for the arbitration will be those in this arbitration agreement we may elect arbitration with respect to any Claim made by to provide relief warranted by that party's individual claim, If and the procedures of the chosen arbitration organization, but ‘a new party or any new Claims later asserted in that lawsuit. a court decides that applicable law precludes enforcement the rules in this arbitration agreement will be followed if there This Arbitration Provision does not apply if, on the date you of any of this paragraph’s limitations as to a particular claim is disagreement between the agreement and the organization's submit your Application or on the date we seek to invoke our for relief, then after all apoeals from that decision have procedures, If the organization's procedures change after the claim arbitration provision, you are a member of the Armed Forces been exhausted, that claim land only that claim) must be isle,the procedures in effect when the claim was filed will apply. 3. 3 ARBITRATION For a copy of each organization's procedures, to file a claim or for * Issue a written decision including the reasons for the award, Any arbitration award may be enforced (such as through a other information, please contact: The arbitrator's decision will be final and binding except for any judgment) in any court with jurisdiction. ¢ AMAat 1101 Laurel Oak Ral, Voorhees, NJ 08043, wawvadr.org review allowed by the FAA. However, if more than $100,000 was Other Beneficiaries of this Provision. in addition to you and (phone 1-877-495-4185)or genuinely in dispute, then eitheryou or we may choose to appeal to us, the rights and duties described in this arbitration agreement © JAMS at 620 Eighth Ave, Floor34, New York, NY 10018, www. anew panel of three arbitrators, The appellate panel is completely apply to: our Affiliates and our and their officers, directors and jarrsadt.com (phone 1-800-352-5267). free to acceptor reject the entire original award or any part of it employees; any third party co-defendant of a claim subject to this The appeal must be filed with the arbitration organization not later arbitration provision; and all joint Accountholders and Authorized If both AAA and JAIVS are completely unavailable, and if you and than 30 days after the original award issues. The appealing party Users of your Accounts). ‘we cannot agree on a substitute, then either you or we may request ‘that a court with jurisdiction appoint a substitute. pays all appellate costs unless the appellate panel determines Survival of this Provision, This arbitration provision shall survive: otherwise as part of its award. + closing of your Account; Fees and Costs. If you wish to begin arbitration against us but Claim Notice and Special Payment. If you have a Claim, before voluntary payment of your Account or any part of it, you cannot afford to pay the organization's or arbitrator's costs, we will advance those costs if you ask us in writing, Any request ike initiating an arbitration proceeding, you may give us written notice © any legal proceedings to collect money you owe; this should be sent to Discover, PO Box 30421, Sait Lake City, UT of the Claim (“Claim Notice”) at least 30 days before initiating the * any bankruptcy by you; and 84130-0421. If you lose the arbitration, the arbitrator will decide arbitration proceeding. The Claim Notice must include your name, address, and account number and explain in reasonable detail the any sale by us of your Account, whether you must reimburse us for money we advanced for you You Have the Right to Reject Arbitration for this Account. for the arbitration. If you win the arbitration, we will not ask for nature of the Claim and any supporting facts. Any Claim Notice shall be sent to us at Discover, P.0, Box 794, Deerfield, IL 60015 You may reject the arbitration agreement but only if we reimbursement of money we advanced. Additionally, if you win the receive from you a written notice of rejection within arbitration, the arbitrator may decide that you are entitled to be (or such other address as we shall subsequently provide to you). If, and only if, {1) you submit a Claim Notice in accordance with 30 days of your receipt of the Card after your Account is reimbursed your reasonable attorneys fees and costs (if