Preview
Filed
GR 7/28/2022 10:03 AM
A
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Norma Sosa
NO. 20-DCV-277988
DISCOVER BANK, aie HE DISTRICT COURT
Plaintiff
~434TH JUDICIAL DISTRICT
i
FORT BEND COUNTY, TEXAS
JOAQUIN G ANDRADE,
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), Joaquin G
Andrade, 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
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 [15] 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.
TA
4. Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay y. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14"] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Jd.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20,
2008) (citations omitted).
7. Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. . We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Id. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for
hearing and that after hearing the Court rule that there is “no genuine issue of material fact and
that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Joaquin G Andrade, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of $11,809.35
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 _Litigation@ZwickerPC.com
(281) 494 00
(281) 494-027 fax]
BY:
[ | JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
EIDRE HARRIS, ESQ.
Stati Bar Number 24058586
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
I hereby certify that on the 23 day of July , 2022, this office served a true and correct copy of
the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the
below listed interested parties via
[“] First-Class Mail
[ ] E-Service
[ ] Certified Mail
JOAQUIN G ANDRADE
10011 OLD TOWNE LN
SUGAR LAND, TX 77498
[ ] JOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ
[ ] TABITHA HAYNES, ESQ
(PRDEIDRE HARRIS, ESQ.
[ ] AJEET BADESHA, ESQ.
NO. 20-DCV-277988
DISCOVER BANK, IN THE DISTRICT COURT
Plaintiff
434TH JUDICIAL DISTRICT
Vv.
FORT BEND COUNTY, TEXAS
JOAQUIN G ANDRADE,
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. JOAQUIN G ANDRADE
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. JOAQUIN G ANDRADE
ACCOUNT NUMBER:
BALANCE: $11,809.35
CARDMEMBER (S): JOAQUIN G ANDRADE
STATE OF OHIO
COUNTY OF FRANKLIN
Janice Dorr, personally appeared before me, on this day and after being duly sworn, according to law, and
upon my oath and states as follows:
lam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB
SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware
State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account
records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard
to payments owed on those accounts.
This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account
against the Cardmember(s).
In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records
regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS
INC. maintains these records in the ordinary course of its business, and the records are updated with
information on events (such as charges and payments on the account) by individuals with personal knowledge
of those events or by automated processes that track such events at or near the time that the events occur. The
same systems that record this information also generate periodic statements that are sent to Discover
Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping
systems contain information about which version of Discover Bank’s terms and conditions has been
communicated to an account holder and accepted by an account holder through the use of his or her Discover
Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the
account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by
DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said
account and whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that
account statements were generated, such statements were either provided to the Cardmember(s)
electronically or mailed to the Cardmember(s) at the address maintained on file during that time period.
According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated
with the Cardmember(s) is/are:
10011 OLD TOWNELN
SUGAR LAND, TX 77498-1517
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
27K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS
INC.’s counsel in this case and is attached hereto as Exhibit A.
Exhibit B is a true and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to
ZWI_ANDRADE, 1081935_1.5 V1.5
the Cardmember(s), retrieved from the record-keeping system described above.
Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s
record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account.
Exhibit C reflects the balance that includes any activity occurring on the account after the last statement
(Exhibit B).
DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department
of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in
active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to
query this system with respect to any account holder prior to initiating a collection action against that account
holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the
results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of
my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of
the United States.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
-
any
SUBSCRIBED TO AND SWORN TO before me thisea2
day of : Jon) , 2020.
Aer VICKIE JEAN PHILLIPS
NOTARY PUBLIC - OHIO
= COMMISSION EXPIRES 06-02-24
*
ZWI_ANDRADE_1081935_1.5 VLS
27 K CM.TL27K.LIN.0719
DISC@VER CARDMEMBER AGREEMENT
‘Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
the Pricing Schedule, carefully, Keep them for your records, Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3,
ACCEPTANCE OF AGREEMENT
You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the
Account. You may, however, reject the “Arbitration of Disputes" section as explained in that section,
CHANGES TO YOUR AGREEMENT
‘The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. If required by law, we will give you
advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law.
USING YOUR ACCOUNT
Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use it for illegal transactions,
Authorized Users You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized
User to use your Account. You are responsible for all charges made by your Authorized Users.
Joint Accounts fyour Account is a joint Account
* each of you agreesto be liable individually and jointly for the entire amount owed on the Account; and
any noticewe mailto an address provided by either of you for the Account will serve as noticeto 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 maynot use these Checks to pay
any amount you owe us.
Credit Authorizations We may not authorize a transaction for security or other reasons, We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card,
Check or Account number,
Credit Lines We will tell you what your Account credit line is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your
balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available
jayment of the amountby 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 priorsix billing periods. Otherwise,
Due by the Payment Due Date, After that, if you do not pay the Minimum Payment the fee is $39. 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 $28 if you immediately priorto 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 $39. 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 $28 if you were not charged a Returned Payment Fee during which the payment was returned to us.
ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same
adding the number of percentage points that we specifyto 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 allowed. ‘We credit your payments in accordance with the terms contained on your
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 © Ifyou mail your paymentto an address other than the address designated on your
by Authorized Users, billing statement, there may be a delay in processing and crediting the payment
* We may refuse to accept a payment in a foreign currency. If we do accept it, ‘to your Account,
we will charge your Account our costto convert it to U.S. dollars. If a 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 feserve the right to defend ourselves against any demand to retum 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 for any debt protection product that you enrolled in on or after 2/1/2015; Interest
time, Each billing period you must pay at least the Minimum Payment Due by the Charges; and Late Fees,
Payment Due Date shown on your billing statement. The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed
will be any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance, When
© $35; of we calculate the Minimum Payment Due, we may subtract from the New Balance
© 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period,
The Minimum Payment
© $20, plus any of the following charges as shown on your billing statement: fees Due is rounded up to the nearest dollar.
©2019 Discover Bank, Member FDIC 1
MAKING PAYMENTS
How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
Tequired by applicable law. ‘APRs as of the date we credit your payment.
INTEREST CHARGES
How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily © We make other adjustments (including those adjustments required in the “Paying
Charges—Daily Balance balance” for each Transaction Category, Transaction Categories include standard Interest” section),
Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges
transactions)
Balance Transfers. © We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period. This gives
us the interest charges
© We start with the beginning balance for each day. The beginning balance for for each Transaction Category, To get a daily periodic rate, we divide the APR that
the first day of the billing period is your balance on the last day of your previous applies to the Transaction Category by 365.
billing period, © We add up all the daily interest charges. The sum is the total interest charge for
¢ We add any interest charges accrued on the previous day's daily balance and any the billing period,
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, {fyou 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
Ifyou paid the New Balance on your previous billing statementby 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 Fwe use an attomeyto collect
your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, courtor other collection costs,
and fees and costs of any appeal,
Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account. You assign to us
your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing.
Automatic Account You may set up automatic billing or store your Account information with an Affiliate, Account information changes, which may include your billing address, you authorize us
Information Updates merchant, wallet provider, or other third party ("Permitted Party”), If you do, you to provide this updated information to any such Permitted Party at our discretion, You
authorize us to share your Account information, which may include your rewards ‘must contact the Permitted Party directly or remove your credit card information fram
account balance, with the Permitted Party, regarding the use of your Account. If your the Permitted Party website if you wish to stop automatic billing or Account updates.
Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually, * how we safeguard its confidentiality and security,
Contact us or visit Discover.com if you would like a copy. Please read it carefully, © when it may be shared with others; and
It summarizes: * how you can limit our sharing of this information.
«the personal information we collect;
Credit Reporting Agency You authorize us to review your credit, employment,
and income for the purposeof that information we reported is inaccurate or incomplete, please write us at Discover,
Information this Account, as well as to consider
you for other products
and services, We may report P.O. Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address,
the status and payment history of your Accountto credit reporting agencies and other home phone number and Account number,
creditors. We normally reportto credit reporting agencies each month. If you believe
Our Communications You agree thatwe, our Affliates, and agents, including service providers ("Authorized ‘You agree that the Authorized Parties may contact you using an automatic dialer or
with You Parties”) may contact you, including calls, text message
or emall, about
any current or pre-recorded voice message, ff you no longer wish to be contacted on your cell phone
future accounts or applications, with respect to all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written
phone number or email (i) you have provided to us, (i) from whichyou contacted us, notice cancellingyour consent at this address: Discover Bank, P.0. Box 30937, Salt Lake
or (ii) which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937, The written notice must include: your name, mailing address,
may charge you message and data rates for calls or texts. You agree that the Authorized the last four digits of your Account numberand the specific cell phone number(s) for
Parties may record or monitor
any calls between you and the Authorized Parties. You whichyou would liketo cancel your consentto be contacted by an automated dialer
agreeto notify us if you change or discontinue using any phone number you provide. or pre-recorded voice message.
Unauthorized Use ‘You must notify us immediately if: © you believe someone is using your Account
or a Card without your permission,
© your Card is lost or stolen; or
2.
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
temain responsible for paying all amounts owed.
OTHER IMPORTANT INFORMATION
Purchases and Cash Advances Hf 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 law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the
statute of limitations of the state where the lawsuit is filed will apply, without regard to that state’s conflicts of laws principles or its “borrowing statute."
Severability Except as set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect,
Enforcing this Agreement ‘We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving any of them,
Assignment of Account ‘We may sell, assign or transfer your Account or any portion of it without notice to you, You may not sell, assign or transfer your Account without first obtaining our prior
written consent,
MILITARY BORROWERS
Statement of MAPR Federal law provides important protectionsto members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application
their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee
consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account), If you
not exceed an Annual Percentage Rate of 36 percent, This rate must include, as would like more information about whether this section applies to you, please
applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7, If calling outside
insurance premiums; (2) fees for ancillary products sold in connection with the the U.S. you can contact us at +1-801-451-3730.
Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645)
anytime 24/7. If calling outside the U.S, you can contact us at +1-801-451-3730,
CONTACT US
Unless we tell you otherwise, you can notify us: * by phoneat 1-800-347-3085 or * in writingto Discover, P.0, Box 30943, Salt Lake City, UT 84130-0943,
When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your e-mail address, mailing address or phone number.
DEFINITIONS
“Account” means your Discover card account, “Check” means any check we send to you to access your Account.
“Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule”, which lists the APRs that
“Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information,
notify us or not, “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
“Balance Transfer” means a balance transferred from another creditor to your Account. section of The Wall Street Journal on the last business day of the month.
“Card” means any one or more Discover cards issued to you or someone else with your authorization. “Purchase” means the use of your Account to purchase or lease goods or services at
participating merchants,
“Cash Advance” means the use of your Account for:
“We,” “us” and “our” referto Discover Bank, the issuer of your Card,
* obtaining cash from participating automated teller machines, financial institutions or other
locations; and “You,” “your” or “yours” refer to you and any other person(s) whoare also contractually liable
under this Agreement,
© online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or
similar items. “Transaction Date” means the date shown on your billing statement
for a transaction or fee.
ARBITRATION
Agreement to arbitrate, In the event of a dispute between you or a dependent of such a member covered by the federal claim (and only that claim) must be severed from the arbitration and
and us arising out of or relating
to this Account or the relationships Military Lending Act. If you would fike more information may be brought in court. Only a court, and notan arbitrator, shall
Tesulting from this Account or any other dispute between you about whether you are covered by the Military Lending Act, determine the 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 U.S, 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 transferred, removed or appealed to a different court, we may
Action Waiver) may be resolved by binding arbitration if either JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR
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 10 ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER Governing Law and Rules, This arbitration agreementis governed
LITIGATE SUCH CLAIM IN COURT OR TO HAVE AJURY 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 trules 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, The and the procedures of the chosen arbitration organization, but
a new party or any new Claims later asserted in that lawsuit. arbitrator may not award class, representative or public injunctive the rules in this arbitration agreement will be followed if there
This Arbitration Provision does not apply if, on the date you relief, Ifa court decides that applicable law precludes enforcement is disagreement between the agreement and the organization's
submit your Application or on the date we seek to invoke our ofany ofthis paragraph’s limitations as toa particular claim for relief, procedures. If the organization's procedures change after the claim
arbitration provision, you are a member of the Armed Forces then after all appeals from that decision have been exhausted, that is filed, the procedures in effect when the claim was filed will apply,
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, judgment) in any court with jurisdiction.
other information, please contact: The arbitrator's decision will be final and binding except for any Other Beneficiaries of this Provision. In addition to you and
+ AAA at 1101 Laurel Oak Rd,, Voorhees, N) 08043, www.adr.org review allowed by the FAA. However, if more than $100,000 was us, the rights and duties described in this arbitration agreement
{phone 1-877-495-4185) or genuinely in dispute, then either you or we may choose to appeal to apply to: our Affiliates and our and their officers, directors and
© JAMS at 620 Eighth Ave,, Floor 34, New York, NY 10018, www, a new panel of three arbitrators, The appellate panel is completely employees; any third party co-defendant of a claim subject to this,
jamsadr.com (phone 1-800-352-5267), free to accept or reject the entire original award or any part of it. arbitration provision; and all joint Accountholders and Authorized
The appeal must be filed with the arbitration organization not later Users of your Account(s),
If both AAA and JAMS are completely unavailable, and if you and
we cannot agree on a substitute, then either you or we may request than 30 days after the original award issues. The appealing party Survival of this Provision. This arbitration provision shall survive:
‘that a court with jurisdiction appoint a substitute. pays all appellate costs unless the appellate panel determines closing of your Account;
otherwise as part of its award, voluntary payment of your Account or any part of it;
Fees and Costs, If you wish to begin arbitration against us but
you cannot afford to pay the organization's or arbitrator's costs, we Claim Notice and Special Payment. If you have a Claim, before any legal proceedings to collect money you owe;
will advance those costs if you ask us in writing. Any request
Preview
Filed GR 7/28/2022 10:03 AM A Beverley McGrew Walker District Clerk Fort Bend County, Texas Norma Sosa NO. 20-DCV-277988 DISCOVER BANK, aie HE DISTRICT COURT Plaintiff ~434TH JUDICIAL DISTRICT i FORT BEND COUNTY, TEXAS JOAQUIN G ANDRADE, 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), Joaquin G Andrade, 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 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 [15] 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. TA 4. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay y. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14"] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Jd. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1] Mar. 20, 2008) (citations omitted). 7. Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . . We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Id. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Joaquin G Andrade, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $11,809.35 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 _Litigation@ZwickerPC.com (281) 494 00 (281) 494-027 fax] BY: [ | JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 EIDRE HARRIS, ESQ. Stati Bar Number 24058586 [ ] AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE I hereby certify that on the 23 day of July , 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via [“] First-Class Mail [ ] E-Service [ ] Certified Mail JOAQUIN G ANDRADE 10011 OLD TOWNE LN SUGAR LAND, TX 77498 [ ] JOHNETTA LANG, ESQ. [ ] TREVON WATSON, ESQ [ ] TABITHA HAYNES, ESQ (PRDEIDRE HARRIS, ESQ. [ ] AJEET BADESHA, ESQ. NO. 20-DCV-277988 DISCOVER BANK, IN THE DISTRICT COURT Plaintiff 434TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS JOAQUIN G ANDRADE, 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. JOAQUIN G ANDRADE EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. JOAQUIN G ANDRADE ACCOUNT NUMBER: BALANCE: $11,809.35 CARDMEMBER (S): JOAQUIN G ANDRADE STATE OF OHIO COUNTY OF FRANKLIN Janice Dorr, personally appeared before me, on this day and after being duly sworn, according to law, and upon my oath and states as follows: lam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard to payments owed on those accounts. This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account against the Cardmember(s). In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS INC. maintains these records in the ordinary course of its business, and the records are updated with information on events (such as charges and payments on the account) by individuals with personal knowledge of those events or by automated processes that track such events at or near the time that the events occur. The same systems that record this information also generate periodic statements that are sent to Discover Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping systems contain information about which version of Discover Bank’s terms and conditions has been communicated to an account holder and accepted by an account holder through the use of his or her Discover Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmember(s) have made payments on that balance. According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that account statements were generated, such statements were either provided to the Cardmember(s) electronically or mailed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is/are: 10011 OLD TOWNELN SUGAR LAND, TX 77498-1517 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 27K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached hereto as Exhibit A. Exhibit B is a true and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to ZWI_ANDRADE, 1081935_1.5 V1.5 the Cardmember(s), retrieved from the record-keeping system described above. Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account. Exhibit C reflects the balance that includes any activity occurring on the account after the last statement (Exhibit B). DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to query this system with respect to any account holder prior to initiating a collection action against that account holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of the United States. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. - any SUBSCRIBED TO AND SWORN TO before me thisea2 day of : Jon) , 2020. Aer VICKIE JEAN PHILLIPS NOTARY PUBLIC - OHIO = COMMISSION EXPIRES 06-02-24 * ZWI_ANDRADE_1081935_1.5 VLS 27 K CM.TL27K.LIN.0719 DISC@VER CARDMEMBER AGREEMENT ‘Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including the Pricing Schedule, carefully, Keep them for your records, Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3, ACCEPTANCE OF AGREEMENT You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card. You also accept this Agreement if you or an Authorized User use the Account. You may, however, reject the “Arbitration of Disputes" section as explained in that section, CHANGES TO YOUR AGREEMENT ‘The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement. If required by law, we will give you advance written notice of the change(s) and a right to reject the change(s). We will not charge any fee or interest charge prohibited by law. USING YOUR ACCOUNT Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances. You may not use it for illegal transactions, Authorized Users You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized User to use your Account. You are responsible for all charges made by your Authorized Users. Joint Accounts fyour Account is a joint Account * each of you agreesto be liable individually and jointly for the entire amount owed on the Account; and any noticewe mailto an address provided by either of you for the Account will serve as noticeto 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 maynot use these Checks to pay any amount you owe us. Credit Authorizations We may not authorize a transaction for security or other reasons, We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card, Check or Account number, Credit Lines We will tell you what your Account credit line is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available jayment of the amountby 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 priorsix billing periods. Otherwise, Due by the Payment Due Date, After that, if you do not pay the Minimum Payment the fee is $39. 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 $28 if you immediately priorto 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 $39. 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 $28 if you were not charged a Returned Payment Fee during which the payment was returned to us. ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same adding the number of percentage points that we specifyto 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 allowed. ‘We credit your payments in accordance with the terms contained on your 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 © Ifyou mail your paymentto an address other than the address designated on your by Authorized Users, billing statement, there may be a delay in processing and crediting the payment * We may refuse to accept a payment in a foreign currency. If we do accept it, ‘to your Account, we will charge your Account our costto convert it to U.S. dollars. If a 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 feserve the right to defend ourselves against any demand to retum 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 for any debt protection product that you enrolled in on or after 2/1/2015; Interest time, Each billing period you must pay at least the Minimum Payment Due by the Charges; and Late Fees, Payment Due Date shown on your billing statement. The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed will be any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance, When © $35; of we calculate the Minimum Payment Due, we may subtract from the New Balance © 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period, The Minimum Payment © $20, plus any of the following charges as shown on your billing statement: fees Due is rounded up to the nearest dollar. ©2019 Discover Bank, Member FDIC 1 MAKING PAYMENTS How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower Tequired by applicable law. ‘APRs as of the date we credit your payment. INTEREST CHARGES How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily © We make other adjustments (including those adjustments required in the “Paying Charges—Daily Balance balance” for each Transaction Category, Transaction Categories include standard Interest” section), Method (including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges transactions) Balance Transfers. © We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period. This gives us the interest charges © We start with the beginning balance for each day. The beginning balance for for each Transaction Category, To get a daily periodic rate, we divide the APR that the first day of the billing period is your balance on the last day of your previous applies to the Transaction Category by 365. billing period, © We add up all the daily interest charges. The sum is the total interest charge for ¢ We add any interest charges accrued on the previous day's daily balance and any the billing period, 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, {fyou 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 Ifyou paid the New Balance on your previous billing statementby 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 Fwe use an attomeyto collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, courtor other collection costs, and fees and costs of any appeal, Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account. You assign to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing. Automatic Account You may set up automatic billing or store your Account information with an Affiliate, Account information changes, which may include your billing address, you authorize us Information Updates merchant, wallet provider, or other third party ("Permitted Party”), If you do, you to provide this updated information to any such Permitted Party at our discretion, You authorize us to share your Account information, which may include your rewards ‘must contact the Permitted Party directly or remove your credit card information fram account balance, with the Permitted Party, regarding the use of your Account. If your the Permitted Party website if you wish to stop automatic billing or Account updates. Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually, * how we safeguard its confidentiality and security, Contact us or visit Discover.com if you would like a copy. Please read it carefully, © when it may be shared with others; and It summarizes: * how you can limit our sharing of this information. «the personal information we collect; Credit Reporting Agency You authorize us to review your credit, employment, and income for the purposeof that information we reported is inaccurate or incomplete, please write us at Discover, Information this Account, as well as to consider you for other products and services, We may report P.O. Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address, the status and payment history of your Accountto credit reporting agencies and other home phone number and Account number, creditors. We normally reportto credit reporting agencies each month. If you believe Our Communications You agree thatwe, our Affliates, and agents, including service providers ("Authorized ‘You agree that the Authorized Parties may contact you using an automatic dialer or with You Parties”) may contact you, including calls, text message or emall, about any current or pre-recorded voice message, ff you no longer wish to be contacted on your cell phone future accounts or applications, with respect to all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written phone number or email (i) you have provided to us, (i) from whichyou contacted us, notice cancellingyour consent at this address: Discover Bank, P.0. Box 30937, Salt Lake or (ii) which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937, The written notice must include: your name, mailing address, may charge you message and data rates for calls or texts. You agree that the Authorized the last four digits of your Account numberand the specific cell phone number(s) for Parties may record or monitor any calls between you and the Authorized Parties. You whichyou would liketo cancel your consentto be contacted by an automated dialer agreeto notify us if you change or discontinue using any phone number you provide. or pre-recorded voice message. Unauthorized Use ‘You must notify us immediately if: © you believe someone is using your Account or a Card without your permission, © your Card is lost or stolen; or 2. 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 temain responsible for paying all amounts owed. OTHER IMPORTANT INFORMATION Purchases and Cash Advances Hf 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 law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regard to that state’s conflicts of laws principles or its “borrowing statute." Severability Except as set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect, Enforcing this Agreement ‘We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving any of them, Assignment of Account ‘We may sell, assign or transfer your Account or any portion of it without notice to you, You may not sell, assign or transfer your Account without first obtaining our prior written consent, MILITARY BORROWERS Statement of MAPR Federal law provides important protectionsto members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account), If you not exceed an Annual Percentage Rate of 36 percent, This rate must include, as would like more information about whether this section applies to you, please applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7, If calling outside insurance premiums; (2) fees for ancillary products sold in connection with the the U.S. you can contact us at +1-801-451-3730. Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7. If calling outside the U.S, you can contact us at +1-801-451-3730, CONTACT US Unless we tell you otherwise, you can notify us: * by phoneat 1-800-347-3085 or * in writingto Discover, P.0, Box 30943, Salt Lake City, UT 84130-0943, When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your e-mail address, mailing address or phone number. DEFINITIONS “Account” means your Discover card account, “Check” means any check we send to you to access your Account. “Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule”, which lists the APRs that “Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information, notify us or not, “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates “Balance Transfer” means a balance transferred from another creditor to your Account. section of The Wall Street Journal on the last business day of the month. “Card” means any one or more Discover cards issued to you or someone else with your authorization. “Purchase” means the use of your Account to purchase or lease goods or services at participating merchants, “Cash Advance” means the use of your Account for: “We,” “us” and “our” referto Discover Bank, the issuer of your Card, * obtaining cash from participating automated teller machines, financial institutions or other locations; and “You,” “your” or “yours” refer to you and any other person(s) whoare also contractually liable under this Agreement, © online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or similar items. “Transaction Date” means the date shown on your billing statement for a transaction or fee. ARBITRATION Agreement to arbitrate, In the event of a dispute between you or a dependent of such a member covered by the federal claim (and only that claim) must be severed from the arbitration and and us arising out of or relating to this Account or the relationships Military Lending Act. If you would fike more information may be brought in court. Only a court, and notan arbitrator, shall Tesulting from this Account or any other dispute between you about whether you are covered by the Military Lending Act, determine the 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 U.S, 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 transferred, removed or appealed to a different court, we may Action Waiver) may be resolved by binding arbitration if either JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR 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 10 ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER Governing Law and Rules, This arbitration agreementis governed LITIGATE SUCH CLAIM IN COURT OR TO HAVE AJURY 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 trules 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, The and the procedures of the chosen arbitration organization, but a new party or any new Claims later asserted in that lawsuit. arbitrator may not award class, representative or public injunctive the rules in this arbitration agreement will be followed if there This Arbitration Provision does not apply if, on the date you relief, Ifa court decides that applicable law precludes enforcement is disagreement between the agreement and the organization's submit your Application or on the date we seek to invoke our ofany ofthis paragraph’s limitations as toa particular claim for relief, procedures. If the organization's procedures change after the claim arbitration provision, you are a member of the Armed Forces then after all appeals from that decision have been exhausted, that is filed, the procedures in effect when the claim was filed will apply, 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, judgment) in any court with jurisdiction. other information, please contact: The arbitrator's decision will be final and binding except for any Other Beneficiaries of this Provision. In addition to you and + AAA at 1101 Laurel Oak Rd,, Voorhees, N) 08043, www.adr.org review allowed by the FAA. However, if more than $100,000 was us, the rights and duties described in this arbitration agreement {phone 1-877-495-4185) or genuinely in dispute, then either you or we may choose to appeal to apply to: our Affiliates and our and their officers, directors and © JAMS at 620 Eighth Ave,, Floor 34, New York, NY 10018, www, a new panel of three arbitrators, The appellate panel is completely employees; any third party co-defendant of a claim subject to this, jamsadr.com (phone 1-800-352-5267), free to accept or reject the entire original award or any part of it. arbitration provision; and all joint Accountholders and Authorized The appeal must be filed with the arbitration organization not later Users of your Account(s), If both AAA and JAMS are completely unavailable, and if you and we cannot agree on a substitute, then either you or we may request than 30 days after the original award issues. The appealing party Survival of this Provision. This arbitration provision shall survive: ‘that a court with jurisdiction appoint a substitute. pays all appellate costs unless the appellate panel determines closing of your Account; otherwise as part of its award, voluntary payment of your Account or any part of it; Fees and Costs, If you wish to begin arbitration against us but you cannot afford to pay the organization's or arbitrator's costs, we Claim Notice and Special Payment. If you have a Claim, before any legal proceedings to collect money you owe; will advance those costs if you ask us in writing. Any request