Preview
Filed
8/2/2022 9:57 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Dreamy Jose
NO. 21-DCV-285661
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 268TH JUDICIAL DISTRICT
Vv.
§ FORT BEND COUNTY, TEXAS
MICHAEL F ROBINSON, §
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), Michael F
Robinson, 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 {il
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 $.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 Plaintiffis entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Michael F Robinson, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$6,373.64 minus any payments received after filing this litigation, and
Post-judgment interest on said sums from the date of Judgment until paid at
5% which is the legal rate per annum under §304.004, TEX. FINANCE
CODE.
Costs of this proceeding in the amount of $385.81.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE_Litigation@ZwickerPC.com
(281) 494-030
(281) 021 (fax)
BY: A
[ ]JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] TREVON WATSON, ESQ.
State Bar Number 24125451
[ ] TABITHA HAYNES, ESQ.
State Bar Number 24118986
[{DEIDRE HARRIS, ESQ.
State Bar Number 24058586
[ ] AJEET BADESHA, ESQ.
State Bar Number 24125994
CERTIFICATE OF SERVICE
I hereby certify that on the qn day of
Put ; 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
[V] E-Service
[ ] Certified Mail
MICHAEL J. BLANCHARD
2905 SACKETT STREET
HOUSTON, TX 77098
MIKEBLANCHARD@BUTCHBOYDLAWFIRM.COM
[ ] JOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ.
[ ] TABITHA HAYNES, ESQ.
4->XDEIDRE HARRIS, ESQ.
[ ] AJEET BADESHA, ESQ.
NO. 21-DCV-285661
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
268TH JUDICIAL DISTRICT
Vv.
FORT BEND COUNTY, TEXAS
MICHAEL F ROBINSON,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFFE’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. MICHAEL F ROBINSON
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. MICHAEL F ROBINSON
ACCOUNT NUMBER: XXXXXXXXXXX
BALANCE: $6,373.64
CARDMEMBER (S): MICHAEL ROBINSON
STATE OF OHIO
COUNTY OF FRANKLIN
.
Viey __: personally appeared before me, on this day and after being duly sworn,
a
according to law, and
a
Goon my ath and states as follows:
I 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, | 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:
3102 LA QUINTA DR
MISSOURI CITY, TX 77459
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
28J.” 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 en ged in
active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS IN 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.
SUBSCRIBED TO AND SWORN TO before me this “2 day of adh ; 2022,
SRePeER Brose ana iblic
& ste, %
SHERYL L GEORGE
NOTARY PUBLIC - OHIO 27-24
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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 page3
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 rejectthe 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 Ifyour Account is a joint Account
+ each of you aytees tobe liable individually and jointly forthe ene amount owed on the Account; and
* any notice we mail to an address provided by either of you for the Account will serve as notice to both of you.
Checks If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transferor 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 fine is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your
balance below your Account credit line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available
payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days.
FEES (See your Pricing Schedule for Additional Fees)
Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will exceed the Minimum Payment Due that was due immediately prior to the date on
charge you a Late Fee. The fee is $29, if you were not charged a Late Fee during which the fee was assessed.
any of the prior six billing periods. Otherwise, the fee is $40, This fee will never
Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the priorsix billing periods. Otherwise, the fee is $40. This fee will never
charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on
re-submit it. The fee is $29 if you were not charged a Returned Payment Fee during which the payment was returned to us.
ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same
adding the number of percentage points thatwe specify to the Prime Rate. Variable calendar month that the Prime Rate changes. An increase in the APR will increase
‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due.
Penalty APR When It Applies EXAMPLE: Assume the promo ynal rate for Purchases is 2.99% and the ste
Each time that you do not pay the Minimum Payment Due by the Payment Due rate for Purchases is 15:99 you pay late, the rate ie Purchases c¢
Date we may: increase up toa falco!120.
20.99'
2
© terminate any promotional APRs on new transactions; and “We Will Notify You.
+ increase your APRs for new transactions to Penalty APRs. We will notify you of the date a Penalty APR will take effect. The Penalty APR will
‘We will not apply a Penalty APR to Cash Advances. only apply to new transactions with a Transaction Date more than 14 days afterwe
How it Affects Your Account provide the notice to you.
To determine the Penalty APR for a new transaction: We May Reduce It
© We add up to 5 additional percentage points to the otherwise applicable APR. We will review your Account from time to time as required by aw to determine i
© We set your Penalty APR based on your creditworthiness and other factors. These any Penalty APR should be reduced.
factors include your current APRs and Account history.
MAKING PAYMENTS
Payment Instructions You must pay in U.S. dollars. Please do not send cash. Sending cash is not © We can accept late payments, partial payments or payments marked
allowed. All checks must be drawn on funds on deposit in the U.S. ‘payment in full” or with any other restrictive endorsement without losing
You must pay us for all amounts due on your Account. This includes charges any of our rights under this Agreement,
made by Authorized Users.
We may refuse to accept a payment in a foreign currency. If we do accept it, we
will charge your Account our costte convert it to U.S. dollars.
©2020 Discover Bank, Member FDIC A
MAKING PAYMENTS
Payment Instructions We credit your payments in accordance with the terms contained on your © Ifa third party makes a payment on your Account and we retum all or a part of
billing statement. such payment, then we may adjust your Account for any amount returned. We
© If you mail your payment to an address other than the address designated on reserve the right to defend ourselves against any demand to return funds we
your billing statement, there may be a delay in processing and crediting the have received, and may agree to a compromise of the demanded amount as
payment to your Account. part of a settlement.
Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any fees for any debt protection product that you enrolled in on or after 2/1/2015;
time. Each billing period you must pay at least the Minimum Payment Due by the Interest Charges; and Late Fees.
Payment Due Date shown on your billing statement, The Minimum Payment Due The Minimum Payment Due may also include amounts by which you 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; or we calculate the Minimum Payment Due, we may subtract from the New Balance
© 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period. The Minimum Payment
* $20, plus any of the following charges as shown on your billing statement: Due is rounded up tothe nearest dollar.
How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
required by applicable law, APRs as of the date we credit your payment.
INTEREST CHARGES
How We Calculate Interest We calculate interest charges each billing period by first figuring the “dally © We make other adjustments (including those adjustments required in the “Paying
balance” for each Trarsacion Category, Tiarsaction Categories indude standard
ti
Charges—Dail Balance
Method (inclu ing current
transactions)
Purchases, standard Cash Advances and different promotiona balances, such as
Interest® section).
How We Figure Your Total Interest Charges
Balance Transfers. * We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate. We do this for each day in the billing period. This gives us the interest
© We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide
first day of the billing period is your balance on the last day of your previous the APR that applies tothe 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 the billing period.
any new transactions and fees. We add any new transactions or fees as of the How We Include Fees
later of the Transaction Date or the first day of the billing period in which the We add Balance Transfer Fees to the applicable Balance Transfer Transaction
‘transaction or fee posted to your Account, Category. We add Cash Advance Fees to the applicable Cash Advance Transaction
* We subtract any new credits and payments, Category. We add al other fees to the standard Purchase Transaction Category.
Paying Interest When Interest Charges Begin 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 New Purchases. New Purchases are Purchases that first appear on the next billing
charge from the day we add it to the daily balance. We continue to impose interest statement. Interest will continue to accrue each day on Purchases that appeared on
charges until you pay the total amount you owe us. You can avoid paying previous billing statements until you pay the New Balance in full and will be billed
interest on Purchases as described below. However, you cannot avoid paying inthe next biling cycle,
interest on Balance Transfers or Cash Advances. How We Apply Payments May Impact Your Grace Period
How to Avoid Paying Interest on Purchases (“Grace Period”) Ifyou do not pay your New Balance in full each month, then, depending on the balance
f you pay the New Balance on your current billing statement by the Payment Due to which we apply your payment, you may not get a grace period on 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
© we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction.
obligations to us; lf you are in default, we may declare the entire balance of your Account immediately
© you die or are legally declared incompetent or incapacitated, due and payable without notice.
Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection
costs, and fees and costs of any appeal,
Merchant Disputes 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 creditto 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, merchant, wallet provider, or other third party ("Permitted Party"). If you do,
Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account.
If your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our
discretion, You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing or
Account updates.
Our Privacy Policy We send you our Privacy Policy when you open your Account and annually. + how we safequard 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
tt summarizes: * how you can limit our sharing of this information.
the personal information we collect;
2-
Credit Reporting You authorize us to get information from credit reporting agencies and other sources creditors, We normally report o credit reporting agencies each month Ifyou belive
Agency Information for servicing or review of your Account, collection and any other use permitted by that information we reported is inaccurate or incomplete, please write us at Discover,
law, including to consider you for other products and services. We may report the P.O, Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address,
status and payment history of your Account to credit reporting agencies and other home phone number and Account number.
OTHER IMPORTANT INFORMATION
Our Communications You agree that we, our Affiliates, and agents, including service providers using an automatic dialer or pre-recorded voice message. If you no longer wish to be
with You (‘Authorized Parties") may contact you, including calls, text message or email, about contacted on your cell phone by an automated dialeror pre-recorded voice message,
any currentor future accounts or applications, with respect to all products you have you must provide us written notice cancelling your consent at this address: Discover
with us at any phone number or email (i} you have provided to us, (i) from which Bank, P.0. Box 30937, Salt Lake City, UT 84130-0937, The written notice must
you contacted us, or (ii) which we obtained and believe we can reach you at, even if include: your name, mailing address, the last four digits of your Account number and
your phone provider may charge you message and data rates for calls or texts. You the specific cell phone number(s) for which you would like to cancel your consentto
agree that the Authorized Parties may record or monitor any calls between you and be contacted by an automated dialer or pre-recorded voice message.
the Authorized Parties. You agree to notify us if you change or discontinue using any
phone number you provide. You agree that the Authorized Parties may contact you
Unauthorized Use You must notify us immediately if:
+ your Card is lost or stolen; or
you believe someone is using your Account or a Card without your permission.
Cancellation of » You may cancel your Account. You will remain responsible for any amount you © We may cancel, suspend or not renew your Account at any time without notice,
Your Account owe us under this Agreement,
Any joint Account holder may cancel a joint Account. However, both of you will
remain responsible for paying all amounts owed,
Purchases and Cash Ifyou make a Purchase or Cash Advance in a foreign currency, we will convert it to the country and. curency in which the transaction is made. We use the rate in effect
Advances in Foreign U.S, dollars using a rate we choose. This rate will either be a government-mandated ‘on the conversion date for the transaction, This rate may be different than the rate
Currencies rate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction.
Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, 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 stil 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,
CONTACT US
Unless we tell you otherwise, you can notify us: # by phone at 1-800 DISCOVER (1-800-347-2683) or « in writing to Discover, P.0, Box 30943, Salt Lake City, UT 84130-0943,
When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number.
DEFINITIONS
Account” means your Discover card account, “Check” means any check we send to you to access your Account.
“Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule,’ which lists the APRs that
“Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information.
notify us or not. “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
“Balance Transfer” means a balance transferred from another creditor to your Account, section of the online Wall Street Journal (www.wsj.com) on the last business day of the month.
“Card” means any one or more Discover cards issued to you or someone else with your “Purchase” means the use of your Account to purchase or lease goods or services at
authorization, participating merchants,
“Cash Advance” means the use of your Account for: “We,” “us” and “our” refer to Discover Bank, the issuer of your Card,
© obtaining cash from participating automated teller machines, financial institutions or other "You," “your” or “yours” refer to you and any other person(s) who are also contractually liable
locations; and tunder this Agreement,
* online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or “Transaction Date” means the date shown on your billing statement fora transaction or fee.
similar items.
ARBITRATION
Agreement to Arbitrate. In the event of a dispute between you Even if all parties have opted to litigate a Claim in court, you or arbitrator may not award class, representative or public injunctive
and us arising out of or relating to this Account or the relationships ‘we may elect arbitration with respect to any Claim made by anew relief. If a court decides that applicable law precludes enforcement
resulting from this Account or any other dispute between you or party or any new Claims later asserted in that lawsuit. ‘of any of this paragraph’s limitations as to a particular Claim
us, including, for example, a dispute based on a federal or state CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN for relief, then after all appeals from that decision have been
statute or local ordinance ("Claim"), either you or we may choose INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY exhausted, that Claim (and only that Claim) must be severed from
to resolve the Claim by binding arbitration, as described below, JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST ‘the arbitration and may be brought in court. Only a court, and not
instead of in court. Any Claim (except for a Claim challenging the OTHER CARDMEMBERS, OR LITIGATE IN COURT OR ARBITRATE an arbitrator, shall determine the validity, scope, and effect of the
validity or enforceability of this arbitration agreement, including ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR Class Action Waiver.
the Class Action Waiver) may be resolved by binding arbitration IN A PRIVATE ATTORNEY GENERAL CAPACITY, Your Right to Go To Small Claims Court. We will not choose
if either side requests it. THIS MEANS IF EITHER YOU OR WE The arbitrator may award injunctive relief only in favor of the to arbitrate any individual Claim you bring in small Claims court
CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHTTO individual party seeking relief and only to the extent necessary or your state's equivalent court. However, if such a Claim is
LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO. to provide relief warranted by that party's individual Claim. The transferred, removed or appealed to a different court, we may then
DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. choose to arbitrate,
3.
ARBITRATION
Governing Law and Rules. This arbitration agreement is + Follow applicable statutes of limitations; Other Beneficiaries of this Agreement. In addition to you and
governed by the Federal Arbitration Act ("FAA"), Arbitration must * Honor valid Claims of privilege; us, the rights and duties described in this arbitration agreement
proceed only with the American Arbitration Association ("AAA"), Issue a written decision including the reasons for the award. apply to: our Affiliates and our and their officers, directors and
The rules for the arbitration will be those in this arbitration The arbitrator's decision will be final and binding except for any employees; any third party co-defendant of a Claim subject to this
agreement and the procedures of the AAA, but the rules in this review allowed by the FAA. However, if more than $100,000 was arbitration agreement; and all joint Accountholders and Authorized
arbitration agreement will be followed if there is disagreement genuinely in dispute, then either you or we may choose to appeal to Users of your Account(s).
between the agreement and the AAA's procedures. If the AAA's anew panel of three arbitrators. The appellate panel is completely Survival of this Agreement. This arbitration agreement shall
procedures change after the Claim is filed, the procedures in effect free to accept or reject the entire original award or any part of it. survive:
when the Claim was filed will apply. The appeal must be filed with AAA not later than 30 days after + losing of your Account;
For a copy of the AAA's procedures, to file a Claim or for other the original award issues. The appealing party pays all appellate © voluntary payment of your Account or any part of it;
information, please contact the AAA at 1101 Laurel Oak Rd., costs unless the appellate panel determines otherwise as part of
* any legal proceedings to collect money you owe;
Voorhees, NJ 08043, www.adr.org its award.
any bankruptcy by you; and
(1-877-495-4185). Claim Notice and Special Payment. If you have a Claim, before
initiating an arbitration proceeding, you may give us written notice any sale by us of your Account.
If the AAA is completely unavailable, and if you and we cannot
agree on a substitute, then either you or we may request that a of the Claim (“Claim Notice") at least 30 days before initiating the You Have the Right to Reject Arbitration for this Account.
court with jurisdiction appointa substitute, arbitration proceeding. The Claim Notice must include your name, You may reject the arbitration agreement but only if we
receive from you a written notice of rejection within
Fees and Costs. if you wish to begin arbitration against us but address, and account number and explain in reasonable detail the
30 days of your receipt of the Card after your Account is
you cannot afford to pay the AAA's or arbitrator's costs, we will nature of the Claim and any supporting facts. Any Claim Notice shall
advance those costs if you ask us in writing. Any request like this be sent to us at Discover, P.0.
Preview
Filed 8/2/2022 9:57 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Dreamy Jose NO. 21-DCV-285661 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 268TH JUDICIAL DISTRICT Vv. § FORT BEND COUNTY, TEXAS MICHAEL F ROBINSON, § 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), Michael F Robinson, 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 {il 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 $.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 Plaintiffis entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Michael F Robinson, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $6,373.64 minus any payments received after filing this litigation, and Post-judgment interest on said sums from the date of Judgment until paid at 5% which is the legal rate per annum under §304.004, TEX. FINANCE CODE. Costs of this proceeding in the amount of $385.81. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE_Litigation@ZwickerPC.com (281) 494-030 (281) 021 (fax) BY: A [ ]JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] TREVON WATSON, ESQ. State Bar Number 24125451 [ ] TABITHA HAYNES, ESQ. State Bar Number 24118986 [{DEIDRE HARRIS, ESQ. State Bar Number 24058586 [ ] AJEET BADESHA, ESQ. State Bar Number 24125994 CERTIFICATE OF SERVICE I hereby certify that on the qn day of Put ; 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 [V] E-Service [ ] Certified Mail MICHAEL J. BLANCHARD 2905 SACKETT STREET HOUSTON, TX 77098 MIKEBLANCHARD@BUTCHBOYDLAWFIRM.COM [ ] JOHNETTA LANG, ESQ. [ ] TREVON WATSON, ESQ. [ ] TABITHA HAYNES, ESQ. 4->XDEIDRE HARRIS, ESQ. [ ] AJEET BADESHA, ESQ. NO. 21-DCV-285661 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff 268TH JUDICIAL DISTRICT Vv. FORT BEND COUNTY, TEXAS MICHAEL F ROBINSON, Defendant(s) EXHIBIT LIST FOR PLAINTIFFE’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. MICHAEL F ROBINSON EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. MICHAEL F ROBINSON ACCOUNT NUMBER: XXXXXXXXXXX BALANCE: $6,373.64 CARDMEMBER (S): MICHAEL ROBINSON STATE OF OHIO COUNTY OF FRANKLIN . Viey __: personally appeared before me, on this day and after being duly sworn, a according to law, and a Goon my ath and states as follows: I 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, | 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: 3102 LA QUINTA DR MISSOURI CITY, TX 77459 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 28J.” 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 en ged in active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS IN 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. SUBSCRIBED TO AND SWORN TO before me this “2 day of adh ; 2022, SRePeER Brose ana iblic & ste, % SHERYL L GEORGE NOTARY PUBLIC - OHIO 27-24 05- WY COMMISSION EXPIRES a Sn ui EXHIBIT A BICR CM, TL28),LIN.0620 DISC@®VER CARDMEMBER AGREEMENT Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement, Please read this Agreement, including the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page3 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 rejectthe 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 Ifyour Account is a joint Account + each of you aytees tobe liable individually and jointly forthe ene amount owed on the Account; and * any notice we mail to an address provided by either of you for the Account will serve as notice to both of you. Checks If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transferor 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 fine is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your balance below your Account credit line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days. FEES (See your Pricing Schedule for Additional Fees) Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will exceed the Minimum Payment Due that was due immediately prior to the date on charge you a Late Fee. The fee is $29, if you were not charged a Late Fee during which the fee was assessed. any of the prior six billing periods. Otherwise, the fee is $40, This fee will never Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the priorsix billing periods. Otherwise, the fee is $40. This fee will never charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on re-submit it. The fee is $29 if you were not charged a Returned Payment Fee during which the payment was returned to us. ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same adding the number of percentage points thatwe specify to the Prime Rate. Variable calendar month that the Prime Rate changes. An increase in the APR will increase ‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due. Penalty APR When It Applies EXAMPLE: Assume the promo ynal rate for Purchases is 2.99% and the ste Each time that you do not pay the Minimum Payment Due by the Payment Due rate for Purchases is 15:99 you pay late, the rate ie Purchases c¢ Date we may: increase up toa falco!120. 20.99' 2 © terminate any promotional APRs on new transactions; and “We Will Notify You. + increase your APRs for new transactions to Penalty APRs. We will notify you of the date a Penalty APR will take effect. The Penalty APR will ‘We will not apply a Penalty APR to Cash Advances. only apply to new transactions with a Transaction Date more than 14 days afterwe How it Affects Your Account provide the notice to you. To determine the Penalty APR for a new transaction: We May Reduce It © We add up to 5 additional percentage points to the otherwise applicable APR. We will review your Account from time to time as required by aw to determine i © We set your Penalty APR based on your creditworthiness and other factors. These any Penalty APR should be reduced. factors include your current APRs and Account history. MAKING PAYMENTS Payment Instructions You must pay in U.S. dollars. Please do not send cash. Sending cash is not © We can accept late payments, partial payments or payments marked allowed. All checks must be drawn on funds on deposit in the U.S. ‘payment in full” or with any other restrictive endorsement without losing You must pay us for all amounts due on your Account. This includes charges any of our rights under this Agreement, made by Authorized Users. We may refuse to accept a payment in a foreign currency. If we do accept it, we will charge your Account our costte convert it to U.S. dollars. ©2020 Discover Bank, Member FDIC A MAKING PAYMENTS Payment Instructions We credit your payments in accordance with the terms contained on your © Ifa third party makes a payment on your Account and we retum all or a part of billing statement. such payment, then we may adjust your Account for any amount returned. We © If you mail your payment to an address other than the address designated on reserve the right to defend ourselves against any demand to return funds we your billing statement, there may be a delay in processing and crediting the have received, and may agree to a compromise of the demanded amount as payment to your Account. part of a settlement. Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any fees for any debt protection product that you enrolled in on or after 2/1/2015; time. Each billing period you must pay at least the Minimum Payment Due by the Interest Charges; and Late Fees. Payment Due Date shown on your billing statement, The Minimum Payment Due The Minimum Payment Due may also include amounts by which you 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; or we calculate the Minimum Payment Due, we may subtract from the New Balance © 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period. The Minimum Payment * $20, plus any of the following charges as shown on your billing statement: Due is rounded up tothe nearest dollar. How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower required by applicable law, APRs as of the date we credit your payment. INTEREST CHARGES How We Calculate Interest We calculate interest charges each billing period by first figuring the “dally © We make other adjustments (including those adjustments required in the “Paying balance” for each Trarsacion Category, Tiarsaction Categories indude standard ti Charges—Dail Balance Method (inclu ing current transactions) Purchases, standard Cash Advances and different promotiona balances, such as Interest® section). How We Figure Your Total Interest Charges Balance Transfers. * We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate. We do this for each day in the billing period. This gives us the interest © We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide first day of the billing period is your balance on the last day of your previous the APR that applies tothe 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 the billing period. any new transactions and fees. We add any new transactions or fees as of the How We Include Fees later of the Transaction Date or the first day of the billing period in which the We add Balance Transfer Fees to the applicable Balance Transfer Transaction ‘transaction or fee posted to your Account, Category. We add Cash Advance Fees to the applicable Cash Advance Transaction * We subtract any new credits and payments, Category. We add al other fees to the standard Purchase Transaction Category. Paying Interest When Interest Charges Begin 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 New Purchases. New Purchases are Purchases that first appear on the next billing charge from the day we add it to the daily balance. We continue to impose interest statement. Interest will continue to accrue each day on Purchases that appeared on charges until you pay the total amount you owe us. You can avoid paying previous billing statements until you pay the New Balance in full and will be billed interest on Purchases as described below. However, you cannot avoid paying inthe next biling cycle, interest on Balance Transfers or Cash Advances. How We Apply Payments May Impact Your Grace Period How to Avoid Paying Interest on Purchases (“Grace Period”) Ifyou do not pay your New Balance in full each month, then, depending on the balance f you pay the New Balance on your current billing statement by the Payment Due to which we apply your payment, you may not get a grace period on 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 © we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction. obligations to us; lf you are in default, we may declare the entire balance of your Account immediately © you die or are legally declared incompetent or incapacitated, due and payable without notice. Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal, Merchant Disputes 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 creditto 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, merchant, wallet provider, or other third party ("Permitted Party"). If you do, Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account. If your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our discretion, You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing or Account updates. Our Privacy Policy We send you our Privacy Policy when you open your Account and annually. + how we safequard 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 tt summarizes: * how you can limit our sharing of this information. the personal information we collect; 2- Credit Reporting You authorize us to get information from credit reporting agencies and other sources creditors, We normally report o credit reporting agencies each month Ifyou belive Agency Information for servicing or review of your Account, collection and any other use permitted by that information we reported is inaccurate or incomplete, please write us at Discover, law, including to consider you for other products and services. We may report the P.O, Box 30939, Salt Lake City, UT 84130-0939, Please include your name, address, status and payment history of your Account to credit reporting agencies and other home phone number and Account number. OTHER IMPORTANT INFORMATION Our Communications You agree that we, our Affiliates, and agents, including service providers using an automatic dialer or pre-recorded voice message. If you no longer wish to be with You (‘Authorized Parties") may contact you, including calls, text message or email, about contacted on your cell phone by an automated dialeror pre-recorded voice message, any currentor future accounts or applications, with respect to all products you have you must provide us written notice cancelling your consent at this address: Discover with us at any phone number or email (i} you have provided to us, (i) from which Bank, P.0. Box 30937, Salt Lake City, UT 84130-0937, The written notice must you contacted us, or (ii) which we obtained and believe we can reach you at, even if include: your name, mailing address, the last four digits of your Account number and your phone provider may charge you message and data rates for calls or texts. You the specific cell phone number(s) for which you would like to cancel your consentto agree that the Authorized Parties may record or monitor any calls between you and be contacted by an automated dialer or pre-recorded voice message. the Authorized Parties. You agree to notify us if you change or discontinue using any phone number you provide. You agree that the Authorized Parties may contact you Unauthorized Use You must notify us immediately if: + your Card is lost or stolen; or you believe someone is using your Account or a Card without your permission. Cancellation of » You may cancel your Account. You will remain responsible for any amount you © We may cancel, suspend or not renew your Account at any time without notice, Your Account owe us under this Agreement, Any joint Account holder may cancel a joint Account. However, both of you will remain responsible for paying all amounts owed, Purchases and Cash Ifyou make a Purchase or Cash Advance in a foreign currency, we will convert it to the country and. curency in which the transaction is made. We use the rate in effect Advances in Foreign U.S, dollars using a rate we choose. This rate will either be a government-mandated ‘on the conversion date for the transaction, This rate may be different than the rate Currencies rate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction. Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, 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 stil 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, CONTACT US Unless we tell you otherwise, you can notify us: # by phone at 1-800 DISCOVER (1-800-347-2683) or « in writing to Discover, P.0, Box 30943, Salt Lake City, UT 84130-0943, When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number. DEFINITIONS Account” means your Discover card account, “Check” means any check we send to you to access your Account. “Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule,’ which lists the APRs that “Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information. notify us or not. “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates “Balance Transfer” means a balance transferred from another creditor to your Account, section of the online Wall Street Journal (www.wsj.com) on the last business day of the month. “Card” means any one or more Discover cards issued to you or someone else with your “Purchase” means the use of your Account to purchase or lease goods or services at authorization, participating merchants, “Cash Advance” means the use of your Account for: “We,” “us” and “our” refer to Discover Bank, the issuer of your Card, © obtaining cash from participating automated teller machines, financial institutions or other "You," “your” or “yours” refer to you and any other person(s) who are also contractually liable locations; and tunder this Agreement, * online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or “Transaction Date” means the date shown on your billing statement fora transaction or fee. similar items. ARBITRATION Agreement to Arbitrate. In the event of a dispute between you Even if all parties have opted to litigate a Claim in court, you or arbitrator may not award class, representative or public injunctive and us arising out of or relating to this Account or the relationships ‘we may elect arbitration with respect to any Claim made by anew relief. If a court decides that applicable law precludes enforcement resulting from this Account or any other dispute between you or party or any new Claims later asserted in that lawsuit. ‘of any of this paragraph’s limitations as to a particular Claim us, including, for example, a dispute based on a federal or state CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN for relief, then after all appeals from that decision have been statute or local ordinance ("Claim"), either you or we may choose INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY exhausted, that Claim (and only that Claim) must be severed from to resolve the Claim by binding arbitration, as described below, JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST ‘the arbitration and may be brought in court. Only a court, and not instead of in court. Any Claim (except for a Claim challenging the OTHER CARDMEMBERS, OR LITIGATE IN COURT OR ARBITRATE an arbitrator, shall determine the validity, scope, and effect of the validity or enforceability of this arbitration agreement, including ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR Class Action Waiver. the Class Action Waiver) may be resolved by binding arbitration IN A PRIVATE ATTORNEY GENERAL CAPACITY, Your Right to Go To Small Claims Court. We will not choose if either side requests it. THIS MEANS IF EITHER YOU OR WE The arbitrator may award injunctive relief only in favor of the to arbitrate any individual Claim you bring in small Claims court CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHTTO individual party seeking relief and only to the extent necessary or your state's equivalent court. However, if such a Claim is LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO. to provide relief warranted by that party's individual Claim. The transferred, removed or appealed to a different court, we may then DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. choose to arbitrate, 3. ARBITRATION Governing Law and Rules. This arbitration agreement is + Follow applicable statutes of limitations; Other Beneficiaries of this Agreement. In addition to you and governed by the Federal Arbitration Act ("FAA"), Arbitration must * Honor valid Claims of privilege; us, the rights and duties described in this arbitration agreement proceed only with the American Arbitration Association ("AAA"), Issue a written decision including the reasons for the award. apply to: our Affiliates and our and their officers, directors and The rules for the arbitration will be those in this arbitration The arbitrator's decision will be final and binding except for any employees; any third party co-defendant of a Claim subject to this agreement and the procedures of the AAA, but the rules in this review allowed by the FAA. However, if more than $100,000 was arbitration agreement; and all joint Accountholders and Authorized arbitration agreement will be followed if there is disagreement genuinely in dispute, then either you or we may choose to appeal to Users of your Account(s). between the agreement and the AAA's procedures. If the AAA's anew panel of three arbitrators. The appellate panel is completely Survival of this Agreement. This arbitration agreement shall procedures change after the Claim is filed, the procedures in effect free to accept or reject the entire original award or any part of it. survive: when the Claim was filed will apply. The appeal must be filed with AAA not later than 30 days after + losing of your Account; For a copy of the AAA's procedures, to file a Claim or for other the original award issues. The appealing party pays all appellate © voluntary payment of your Account or any part of it; information, please contact the AAA at 1101 Laurel Oak Rd., costs unless the appellate panel determines otherwise as part of * any legal proceedings to collect money you owe; Voorhees, NJ 08043, www.adr.org its award. any bankruptcy by you; and (1-877-495-4185). Claim Notice and Special Payment. If you have a Claim, before initiating an arbitration proceeding, you may give us written notice any sale by us of your Account. If the AAA is completely unavailable, and if you and we cannot agree on a substitute, then either you or we may request that a of the Claim (“Claim Notice") at least 30 days before initiating the You Have the Right to Reject Arbitration for this Account. court with jurisdiction appointa substitute, arbitration proceeding. The Claim Notice must include your name, You may reject the arbitration agreement but only if we receive from you a written notice of rejection within Fees and Costs. if you wish to begin arbitration against us but address, and account number and explain in reasonable detail the 30 days of your receipt of the Card after your Account is you cannot afford to pay the AAA's or arbitrator's costs, we will nature of the Claim and any supporting facts. Any Claim Notice shall advance those costs if you ask us in writing. Any request like this be sent to us at Discover, P.0.