Preview
NO. 22-04-04790
AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT
BANK, §
Plaintiff AT LAW NO 6
Vv. MONTGOMERY COUNTY, TEXAS
THOMAS PIERREL,
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
American Express National Bank, Plaintiff moves for Summary Judgment against
Defendant(s), Thomas Pierrel, 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 008.
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 8.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.
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. Jd.
at 202 (citing Prime Products, Inc. v. S.S.1. Plastics, Ine., 97 8.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1‘'] Mar. 20,
2008) (citations omitted).
Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. . We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. 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 judgmentas a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this
matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of
material fact and that the Plaintiff is entitled to judgment as a matter of Jaw” and that Plaintiff be
granted summary judgment against Defendant(s), Thomas Pierrel, for the following:
1 The total principal sum of the combined accounts ($10,716.79 for account
ending in 008 and $9,472.62 account ending in 003) claimed for in Plaintiff's
Complaint of $20,189.41, and
All costs of this proceeding.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE_Litigation@ZwickerPC.com
(281) 494-0300
(281) 494-0213 fax
BY Onang.,
MJOHNETTA LANG, EGO.
State Bar Number 24036943
[ ] EREVON WATSON, ESQ.
State Bar Number 24125451
THOMAS PIERREL
415 LAURA LN
CONROE, TX 77385
7 CERTIFICATE OF SERVICE
J hereby certify that on the ) day c 0c +0l0ei- -, 2022, this office served a true and correct copy
of the foregoing in accordance with the Rule 21a ofthe Texas Rules of Civil Procedure upon the
below listed interested parties via
[ ] First-Class Mail
[ ] E-Service
[ ] Certified Mail
THOMAS PIERREL
415 LAURA LN
CONROE, TX 77385
UV, HINETT. IANG, ESQ.
REVON WATSON, ESQ.
NO. 22-04-04790
AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT
BANK, §
Plaintiff AT LAW NO 6
Vv. MONTGOMERY COUNTY, TEXAS
THOMAS PIERREL,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff
Includes True and Correct Copy of Applicable Supporting Account Documents
Exhibit “B” Non-Military Status Verification
Attachments Include:
Official Printout from the United States Department of Defense-Manpower Data Center that
Defendant is Not an Active Member of the Armed Forces Currently on Duty
AMERICAN EXPRESS NATIONAL BANK V. THOMAS PIERREL
EXHIBIT “A”
Affidavit in Support of Judgment
AMERICAN EXPRESS NATIONAL BANK V. THOMAS PIERREL
THOMAS PIERREL
Account ending in: 008
AFFIDAVIT OF PLAINTIFF
I, Raquel Hernandez, declare and state as follows:
1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK
("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter),
with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070.
2. In my capacity as Assistant Custodian of Records for American Express, I am familiar with the
ongoing credit card business operations and practices of American Express, particularly with respect to its
recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by
American Express. I have access to the business records relating to credit card accounts issued by American
Express, including, in particular, the records of cardmember accounts and the applicable card agreements. I
have personal knowledge of American Express’ regular practices and procedures with respect to: (a) the
transmittal of credit card account agreements, notices, billing statements, and other documents; and (b) quality
assurance controls utilized to ensure that such transmittals are properly made. I also have access to and am
generally familiar with the cardmember account records created and maintained by American Express.
Except where based on my review of records and documents regularly maintained in the ordinary course of
business, all of the matters set forth herein are within my personal knowledge and are true and correct and, if
called as a witness, I could competently testify thereto.
3 The billing statements and other documents referred to herein were created at or near either the
time of the transactions or the time the original statements were made and have been kept by American
Express in the ordinary course of business. In my experience, the systems used by American Express to
create and maintain data for and to produce billing statements and other documents are reliable and kept in a
good state of repair, and American Express’ procedures for inserting transaction and other data into the
systems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtained
only by authorized American Express personnel or authorized agents pursuant to proper procedures, which
must be followed in order to obtain the statements. The other records referred to herein were created and kept
in the ordinary course of business by American Express and were created at or near the time of the occurrence
of the matters set forth by those records and/or were created based upon information transmitted by a person
with knowledge of the matters set forth in those records. It is the regular business practice of American
Express to make and keep said records. The statements contained in this affidavit are made based on my
personal knowledge of the business records practices of American Express.
4 All American Express credit card accounts are governed by a written agreement (the
“Cardmember Agreement”) setting forth the terms and conditions of the account. When an American Express
account is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreement
provides that use of the card constitutes acceptance of the agreement.
5 All American Express Cardmember Agreements expressly provide that American Express may
change the terms of the Cardmember Agreement from time to time. American Express advises current
cardholders of changes through change-in-terms notices, which are either mailed to American Express
cardmembers in separate mailings or included with or printed on the cardmembers’ monthly billing
statements.
ZATE
TX_AENB_001
*
THOMAS PIERREL
Account ending in: 008
6 American Express maintains computerized records of the amounts due and owing to American
Express for any transactions that occur when an individual uses an American Express credit card. The
computerized records reflect all debits and credits in connection with the use of an American Express credit
card. American Express sends or otherwise makes available monthly billing statements to cardmembers who
carry a balance or are otherwise required to receive a monthly statement.
7 I have personally reviewed American Express’ records concerning defendant THOMAS
PIERREL (“Defendant”). Those records reflect that Defendant opened an American Express credit card
account, the current account number ending in 008 (the “Account”) in 04/2018. Consistent with American
Express’ standard business practices, American Express’ records reflect that it mailed Defendant’s credit card,
together with a copy of Defendant’s Cardmember Agreement, to Defendant when American Express opened
Defendant’s Account. Copies of each of these Cardmember Agreements were transmitted to Defendant as
they were periodically revised or updated. A true and correct copy of the Cardmember Agreement in effect at
the time of cancellation of the Account is annexed hereto as Exhibit “A”.
8 American Express’ records further reflect that Defendant used the Account to pay for various
goods and services and/or obtain cash advances. Consistent with American Express’ standard business
practices, American Express’ records reflect that it transmitted monthly billing statements to Defendant.
There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due and
owing on the monthly statements provided to Defendant.
9 Pursuant to American Express’ records, under the terms of the Cardmember Agreement,
Defendant defaulted in making the payments due on the Account. American Express’ records reflect that
American Express closed Defendant’s Account. After giving Defendant credit for all payments made, if any,
the amount justly due and owing as of 05/19/22 is $10,716.79, exclusive of court costs and attorneys’ fees. A
true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s)
12/26/21 to 01/26/22 is annexed hereto as Exhibit “B”. The attached statement dated 01/26/22 is in the
amount of $13,813.61. Payments and/or adjustments were made on or about 05/13/22 in the amount of
$3,096.82 subsequent to this statement being generated.
10. Defendant’s Account has not been sold or assigned by American Express, the original creditor
of the account.
ZATE
TX_AENB_001
THOMAS PIERREL
Account ending in: 008
11. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in
the military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an
infant, incompetent, under mental defect or infirm.
Dated: B24 \20r By: a
Name: Raquél Hernandez
Title: Assistant Custodian of Records
STATE OF ARIZONA
COUNTY OF MARICOPA
Subscribed and sworn (or affirmed) before me this oe 7 ey of , 2022
ken Lrobey
(Seal)
Notiry
o
LINDY ISENBERG
Notary Public - Arizona
Maricopa County
Commission # 573304
Sey my Comm, Expires Nov 2, 2023
ZATE
TX_AENB 001
EXHIBIT A
BICR
Cardmember Agreement: Part 1 of 2 As of: 04/02/2018
Starwood Preferred Guest
Issuer: American Express National Bank Cardmember Name: THOMAS PIERREL
Credit Limit: $15,500 (Cash Advance Limit: $3,100) Account EOS
Rates and Fees Table
Teaco)
Annual Percentage Rate
(APR) for Purchases
18.74%
This APR will vary with the market based on the Prime Rate.
APR for Balance Transfers |18.74% for any balance transfer requests we may accept.
This APR will vary with the market based on the Prime Rate.
APR for Cash Advances 26.74%
This APR will vary with the market based on the Prime Rate.
Penalty APR and When it 129.99%
Applies This APR will vary with the market based on the Prime Rate.
This APR may be applied to your account if:
1) you make one or more late payments; or
2) your payment is retumed by your bank.
We may also consider your creditworthiness in determining whether or not to apply the
penalty APR to your Account.
How Long Will the Penalty APR Apply? If the penalty APR is applied, it will apply for
at least 6 months. We will review your Account every 6 months after the penalty APR is
applied. The penalty APR will continue to apply until you have made timely payments with
no returned payments during the 6 months being reviewed.
Paying Interest Your due date is at least 25 days after the close of each billing period. We will not charge
you interest on purchases if you pay each month your entire balance (or, if you have a
plan outstanding, your balance adjusted for plans) by the due date. We will begin charging
interest on cash advances and balance transfers on the transaction date.
Plan Fee (Fixed Finance Up to 0.82% of each purchase moved into a plan based on the plan duration, the APR that
Charge) would otherwise apply to the purchase, and other factors.
For Credit Card Tips from | To learn more about factors to consider when applying for or using a credit card, visit
the Consumer Financial the website of the Consumer Financial Protection Bureau at
Protection Bureau ttp:/|www.consumerfinance.gov/learnmore
tt
Annual Membership Fee $0 for the first year, then $95
Transaction Fees
* Balance Transfer Either $5 or 3% of the amount of each transfer, whichever is greater.
* Cash Advance Either$5 or 3% of the amount of each cash advance, whichever is greater.
* Foreign Transaction None
Penalty Fees
* Late Payment Up to $38.
+ Returned Payment Up to $38,
* Overlimit None
How we calculate interest: We use the Average Daily Balance method (including newtransactions). See the How we
calculate interest section in Part 2.
Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions.
(MEN M1 UA070000004 1065928 1065879 Page 1 of 4
. .
How Rates and Fees Work
Calculating The Annual Percentage Rate (APR) for variable rates is determined by adding an amount (margin) to
APRs and DPRs the Prime Rate (see Determining the Prime Rate in Part 2). The Daily Periodic Rate (DPR) is 1/365th of
the APR, rounded to one ten-thousandth of a percentage point.
Rate Description Prime + Margin APR DPR
Purchase Prime + 13.99% 18.74% 0.0513%
Balance Transfer Prime + 13.99% 18.74% 0.0513%
Cash Advance Prime + 21.99% 28.74% 0.0733%
Penalty Prime + 25.99%" 29.99% 0,0822%
*The variable penalty APR will not exceed 29.99%
Penalty APR for new The penalty APR may apply to new transactions if: if the penalty APR applies to a balance, it will
transactions * you do not pay at least the Minimum Payment apply to charges added to that balance 15 or
Due by the Payment Due Date on one or more days after we send you notice.
more occasions; or ‘We will review your Account every 6 months after
* your payment is returned by your bank. the penalty APR is applied. The penalty APR
will continue to apply until you have made timely
payments with no returned payments during the 6
We may also consider your creditworthiness in
months being reviewed.
determining whether or not to apply the penalty
APR to your Account.
We add fees to a purchase balance, unless we tell you otherwise.
Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1.
Plan Fee Up to 0.82% of each purchase moved into a plan based on the plan duration, the APR that would
otherwise apply to the purchase, and other factors. This fee is a fixed finance charge that will be
charged each month that a plan fs active. The dollar amount of your plan fee will be disclosed when
you set up a plan. For more information, see About the Plan It Feature in Part 2 of your Cardmember
Agreement.
Late Payment Up to $38. If we do not receive the Minimum Payment Due by its Payment Due Date, the fee is $27. If
this happens again within the next 6 billing periods, the fee is $38. However, the late fee will not exceed
the Minimum Payment Due. Paying late may also result in a penalty APR. See Penalty APR for new
transactions above.
Returned Payment Up to $38. If you make a payment that is returned unpaid the first time we present it to your bank, the
fee is $27. If you do this again within the same billing period or the next 6 billing periods, the fee is $38.
However, the returned payment fee will not exceed the applicable Minimum Payment Due. A returned
payment may also result in a penalty APR. See Penalty APR for new transactions above.
Returned Check $38 if you use your card to cash a check at one of our approved locations and the check is returned
unpaid. We will also charge you the unpaid amount,
‘Overlimit None. See Credit limit and cash advance limit in Part 2.
Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so.
Balance Transfer 3% of the transaction, with a minimum of $5. A different fee may apply if stated in a promotional offer
or at the time of a transaction. This fee is a finance charge. We will add it to the same balance as the
balance transfer.
Cash Advance 3% of the withdrawal and other services you obtain (including any fee charged by the ATM operator),
with a minimum of $5. We will add this fee to the cash advance balance.
Foreign Transaction None
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
(NNN C1. £UA0710000004 1065928 1065879 Page 2 of 4
Supplement to the Cardmember Agreement
How Your Reward Program Works
Starwood Preferred Guest’ Starpoints”
Eligible purchases do NOT include:
How you receive points You receive 1 Starpoint® (point) for each $1 of
eligible purchases on your Starwood Preferred * fees or interest charges,
. balance transfers,
Guest® Credit Card from American Express (Card . cash advances,
Account). . purchases of traveler's checks,
Eligible purchases are purchases for goods and . purchases or reloading of prepaid cards, or
services minus returns and other credits. ° purchases of any cash equivalents.
How you receive You receive 1 additional point (for a total of 2 Merchants are typically assigned codes and
additional points points) for each $1 of eligible purchases on your categorized based on what they primarily sell. A
Card Account charged directly with participating purchase will not receive additional points if the
Starwood properties, standalone Starwood retail merchant, or a particular merchant location, uses
establishments, and Starwood online stores that, a code that is not eligible for additional points. For
in each case, are wholly owned by Starwood questions about additional points on a purchase,
Hotels & Resorts Worldwide, LLC (a subsidiary of call the number on the back of your Card.
Marriott International, Inc.) and its affiliates. A purchase may not receive additional points if
You will receive 1 additional point (for a total of the merchant submits the purchase using a mobile
2 points) for each $1 of eligible purchases on or wireless card reader or if you use a mobile or
your Card Account charged directly with hotels digital wallet.
participating in Marriott Rewards®, standalone Please visit americanexpress.com/rewards-info
Marriott branded retail establishments, and for more information about rewards.
Marriott branded online stores (including online From time to time, we may make promotional
purchases of Marriott branded gift cards), that in offers of bonus points. These offers include
each case, are owned by Marriott International, terms about how you can earn the bonus points
Inc. and its affiliates. and when you can use them. These offer terms
Purchases made through a third-party payment may differ from the terms above concerning
account or on an online marketplace (with multiple points earned for eligible purchases to your Card
retailers) will not receive additional points. Account, including about when you can use the
points.
You can view your points earned yearto date on
the Card by logging onto your online account at
americanexpress.com and viewing your account
summary page.
When we transfer points We transfer points to your loyalty program account after the end of the billing period in which you
received them.
Bonus points received from your Card will be posted to your SPG ® account up to 12 weeks after the
end of each month. Your account must not be cancelled or delinquent at the time of bonus fulfillment.
When you will ifthe Minimum Payment Due is not paid by the You may reinstate those points within the next 12
forfeit points Closing Date of the billing period in which it is billing periods if your Card Account is not past due
due, you will forfeit the points you received for and you pay a $35 fee.
eligible purchases during that billing period. For
example, if your billing period closes January 15
and the minimum payment for that billing period
is due on February 10, and you do not make that
minimum payment due by the close of your next
billing period on February 15 , then you will not
earn points for spend in the billing period ending
February 15.
EN CMAEUP'SP0000205 Page 3 of 4
. +
Starwood Gold Preferred You may receive enrollment in the Gold Preferred again qualifies you for enrollment, or you qualify
Guest Level Guest level of the loyalty program based on your for Gold Preferred Guest status under the loyalty
eligible purchases for the calendar year. If your program terms.
eligible purchases during a calendar year total You cannot receive enrollment in the Gold
$30,000 or more, you will be enrolled for at least Preferred Guest level through this reward program
12 months in the Gold Preferred Guest level of the if you are already enrolled at the Gold Preferred
loyalty program. Guest level or any higher level.
Itwill take about 12 to 16 weeks for your A calendar year is from January 1 to December 31
enrollment in the Gold Preferred Guest level to regardless of when you open your Card Account.
become effective.
Only the Basic Cardmember will be enrolled. Your
enroliment will expire after 12 months unless your
eligible purchases during the next calendar year
Starwood Elite Status Upon opening your Card Account and, by February 15th of each subsequent calendar year it is open,
Credit for 2 stays towards your Starwood Preferred Guest elite status
you will receive from Starwood credit
and credit for 5 nights toward your Starwood Preferred Guest Elite status. This benefit is limited to one
annual 2 stay credit and one annual 5 night Elite status credit per Starwood Preferred Guest Credit Card
account. You will not receive additional 2 stay or 5 night Elite status credits if you have multiple Card
Accounts. Credits and status are subject to the terms and conditions of the Starwood Preferred Guest
program.
Other things you should You will only receive rewards for eligible Points, certificates and membership in the loyalty
know about this program purchases for personal, family or household use. program are subject to the Starwood Preferred
Guest Loyalty Program Terms and Conditions.
‘We may change the terms of this reward program
You should refer to that document, which can be
at our discretion. If you violate or abuse this
found at www.SPG.com, for details on:
reward program, you may forfeit some or all of
your points. « Starwood's right to change its program terms.
« other conditions that may apply to Starwood's
We are not responsible for points after they program.
are credited to your Starwood Preferred Guest
Account. We are also not responsible for the
actions of Starwood on your Starwood Preferred
Guest Account.
ME CAEUPSP0000205 Page 4 of 4
27775
Detail of Changes to Your Cardmember Agreement
This notice amends the Cardmember Agreement (the “Agreement") as described below. We have the right to amend as described in
the Agreement. Any terms in the Agreement conflicting with this change are replaced fully and completely. Terms not changed by this
notice remain in full force and effect.
A. Issuer
American Express Bank, FSB ("FSB") will undergo a legal entity change and be known as American Express National Bank ("AENB")
as of April 1, 2018. Following that date, AENB will become the issuer of your Account. To review our Privacy Notice, please visit
americanexpress.com/privacycenter.
B, Determining the Prime Rate
Effective with billing periods beginning in April 2018, in Part 2 of the Agreement, we are amending the Determining Prime Rate sub
section of the About Interest Charges section by deleting the following paragraph:
We use the Prime Rate from the rates section of The Wall Street Journal. The Prime Rate for each billing period is the Prime
Rate published in The Wall Street Journal 2 days before the Closing Date of the billing period.
And replacing with the following paragraph:
We use the Prime Rate from the rates section of The Wall Street Journal. The Prime Rate for each billing period is the Prime
Rate published in The Wall Street Journal on the Closing Date of the billing period.
CMAEUDFY 1000106. Page 1 of 2
This page intentionally left blank.
CMAEUDFY1000106 Page 2 of 2
.
Doc 28255
FDR 1065928 Cardmember Agreement: Part 2 of 2
How Your American Express Account Works
Introduction
About your Cardmember This document together with Part 1 make up the When you use the Account (or you sign or keep the
Agreement Cardmember Agreement (Agreement) tor the Account card), you agree to the terms of the Agreement.
identified on page 1 of Part 1. Any supplements or
amendments are also part of the Agreement.
Changing the Agreement We may change this Agreement, subject to applicable Changes to some terms may require 45 days advance
law. We may do this in response to the business, legal or notice, and we will tell you in the notice if you have
competitive environment. This written Agreement is a final the right to reject a change. We cannot change certain
expression of the agreement governing the Account. The terms during the first year of your Cardmembership.
written Agreement may not be contradicted by any alleged
oral agreement.
We cannot increase the interest rate on existing balances
except in limited circumstances.
Words we use in We, us, and ourmean the issuer shown on page 1 of A purchase is a charge for goods or services. A cash
the Agreement Part 1. You and your mean the person who applied for advance is a charge to get cash or cash equivalents.
this Account and for whom we opened the Account. You A balance transfer is a charge to pay an amount
and your also mean anyone who agrees to pay for this you owe on another credit card account. A planis
Account, You are the Basic Cardmember. You may a portion of your account balance that you have
request a card for an Additional Cardmember
(see selected to pay over time through a set number of
About Additional Cardmembers in Part 2). monthly payments using Plan It.
Card means any card or other device that we issue to To pay by a certain date means to send your payment
access your Account. A charge is any amount added ‘so that we receive it and credit it to your Account by
to your Account, such as purchases, cash advances, that date (see About your payments in Part 2).
balance transters, fees and interest charges.
About using your card
Using the card You may use the card to make purchases. At our We may (but are not required to) tell these merchants
discretion, we may permit you to create plans, make and third parties if your expiration date or card
cash advances or balance transfers. You cannot transfer number changes or if your account status is updated,
balances from any other account issued by us or our including if your account is cancelled. If you do not
affiliates. want us to share your updated account information,
please contact us using the number on the back of
You may arrange for certain merchants and third parties your card.
to store your card number and expiration date, so that, for
example: Keep your card safe and don't let anyone else use it.
® the merchant may charge your account at regular If your card is lost or stolen or your Account is being
intervals; or used without your permission, contact us right away.
© you may make charges using that stored card You may not use your Account for illegal activities.
intormation.
Promise to pay You promise to pay all charges, including:
© charges you make, even if you do not present your card or sign for the transaction,
® charges that other people make if you let them use your Account, and
charges that Additional Cardmembers make or permit others to make.
Credit limit and cash We assign a Credit Limitto your Account. We may make your Account balance (including fees and interest)
advance limit part of your Credit Limit available for cash advances is not more than your Credit Limit, and
(Cash Advance Limit). There may also be a limit on the your cash advance balance (including fees and
amount you can withdraw from ATMs in a given period. interest) is not more than your Cash Advance
The Credit Limit and Cash Advance Limit are shown on Limit.
age 1 of Part 1 and on each billing statement. We may approve charges that cause your Account
balance to go over your Credit Limit. If we do this,
We may increase or reduce your Credit Limit and Cash ‘we will not charge an overlimit fee. If we ask you to
Advance Limit. We may do so even if you pay on time and promptly pay the amount of your Account balance
your Account is not in default. above your Credit Limit, you agree to do so.
You agree to manage your Account so that:
Declined transactions We may decline to authorize a charge. Reasons we may and your Account is not in default. We are not
do this include suspected fraud and our assessment of responsible for any losses you incur if we do not
your creditworthiness. This may occur even if the charge authorize a charge. And we are not responsible if any
would not cause you to go over your Credit Limit merchant refuses to accept the card.
Version 1065928 Page 1 of 10
About the Plan It feature ‘We may offer you Plan It, which allows you to create to us, including Annual Membership fees.
payment plan for qualifying purchases, subject to a
Your ability to initiate new plans will be based on a
plan fee. This fee is a fixed finance charge that will be
variety of factors such as your creditworthiness or
charged each month that a plan is active. your Credit Limit. You will not be able to initiate new
You may use this feature by selecting a qualifying plans if you enroll into a debt management program,
purchase and a plan duration. You will be able to view if you make a payment that is returned unpaid, if
the monthly plan payments, including the plan fee, your Account is delinquent, or if your Account is
for your selection. Each plan fee will be disclosed cancelled. We will tell you the number of active plans
prior to your establishing the applicable plan and will you may have and we may change this number at
be based on the plan duration, the APR that would any time. The plan durations offered to you will be at
otherwise apply to the purchase, and other factors. our discretion and will be based on a variety of factors
When you set up a plan, the purchase will be moved such as your creditworthiness, the purchase amount,
to aplan balance and will be subject to a plan fee and your Account history.
instead of the APR for purchases.
Plans cannot be cancelled after they have been set
A qualifying purchase tor Plan itis a purchase of at up but you can choose to pay them early by paying
least a specified dollar amount and does not include the New Balance shown on your most recent billing
a purchase of cash or cash equivalent, a purchase statement in full. If you pay a plan off early, you will
subject to Foreign Transaction Fees or any fee owed not incur any future plan fees on that plan.
About your payments
When you must pay You must pay at least the Minimum Payment Due by at least the Minimum Payment Due in such time and
the Payment Due Date. The Minimum Payment Due manner by the Payment Due Date shown on your
and Payment Due Date ate shown on each billing billing statement.
statement, Each statement also shows a Closing Date. The
Each statement also states the time and manner Closing Date is the last day of the billing period
by which you must make your payment for it to be covered by the statement. Each Closing Date is about
credited as of the same day it is received, For your 80 days after the previous statement's Closing Date.
payment to be considered on time, we must receive
How to make payments Make payments to us in U.S. dollars with: If we receive it after that time, we will credit the
. asingle check drawn on a U.S. bank, or payment on the day after we receive it.
. a single negotiable instrument clearable through if your payment does not meet the above
the U.S. banking system, for example a money
order, or
requirements, there may be a delay in crediting your
Account. This may result in late fees and additional
. an electronic payment that can be cleared through interest charges (see How Rates and Fees Work on
Preview
NO. 22-04-04790 AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT BANK, § Plaintiff AT LAW NO 6 Vv. MONTGOMERY COUNTY, TEXAS THOMAS PIERREL, Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: American Express National Bank, Plaintiff moves for Summary Judgment against Defendant(s), Thomas Pierrel, 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 008. 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 8.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. 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. Jd. at 202 (citing Prime Products, Inc. v. S.S.1. Plastics, Ine., 97 8.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1‘'] Mar. 20, 2008) (citations omitted). Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . . We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. 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 judgmentas a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of Jaw” and that Plaintiff be granted summary judgment against Defendant(s), Thomas Pierrel, for the following: 1 The total principal sum of the combined accounts ($10,716.79 for account ending in 008 and $9,472.62 account ending in 003) claimed for in Plaintiff's Complaint of $20,189.41, and All costs of this proceeding. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE_Litigation@ZwickerPC.com (281) 494-0300 (281) 494-0213 fax BY Onang., MJOHNETTA LANG, EGO. State Bar Number 24036943 [ ] EREVON WATSON, ESQ. State Bar Number 24125451 THOMAS PIERREL 415 LAURA LN CONROE, TX 77385 7 CERTIFICATE OF SERVICE J hereby certify that on the ) day c 0c +0l0ei- -, 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a ofthe Texas Rules of Civil Procedure upon the below listed interested parties via [ ] First-Class Mail [ ] E-Service [ ] Certified Mail THOMAS PIERREL 415 LAURA LN CONROE, TX 77385 UV, HINETT. IANG, ESQ. REVON WATSON, ESQ. NO. 22-04-04790 AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT BANK, § Plaintiff AT LAW NO 6 Vv. MONTGOMERY COUNTY, TEXAS THOMAS PIERREL, Defendant(s) EXHIBIT LIST FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff Includes True and Correct Copy of Applicable Supporting Account Documents Exhibit “B” Non-Military Status Verification Attachments Include: Official Printout from the United States Department of Defense-Manpower Data Center that Defendant is Not an Active Member of the Armed Forces Currently on Duty AMERICAN EXPRESS NATIONAL BANK V. THOMAS PIERREL EXHIBIT “A” Affidavit in Support of Judgment AMERICAN EXPRESS NATIONAL BANK V. THOMAS PIERREL THOMAS PIERREL Account ending in: 008 AFFIDAVIT OF PLAINTIFF I, Raquel Hernandez, declare and state as follows: 1 I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK ("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter), with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, Utah 84070. 2. In my capacity as Assistant Custodian of Records for American Express, I am familiar with the ongoing credit card business operations and practices of American Express, particularly with respect to its recordkeeping computer systems, credit card agreements and billing for various types of accounts issued by American Express. I have access to the business records relating to credit card accounts issued by American Express, including, in particular, the records of cardmember accounts and the applicable card agreements. I have personal knowledge of American Express’ regular practices and procedures with respect to: (a) the transmittal of credit card account agreements, notices, billing statements, and other documents; and (b) quality assurance controls utilized to ensure that such transmittals are properly made. I also have access to and am generally familiar with the cardmember account records created and maintained by American Express. Except where based on my review of records and documents regularly maintained in the ordinary course of business, all of the matters set forth herein are within my personal knowledge and are true and correct and, if called as a witness, I could competently testify thereto. 3 The billing statements and other documents referred to herein were created at or near either the time of the transactions or the time the original statements were made and have been kept by American Express in the ordinary course of business. In my experience, the systems used by American Express to create and maintain data for and to produce billing statements and other documents are reliable and kept in a good state of repair, and American Express’ procedures for inserting transaction and other data into the systems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtained only by authorized American Express personnel or authorized agents pursuant to proper procedures, which must be followed in order to obtain the statements. The other records referred to herein were created and kept in the ordinary course of business by American Express and were created at or near the time of the occurrence of the matters set forth by those records and/or were created based upon information transmitted by a person with knowledge of the matters set forth in those records. It is the regular business practice of American Express to make and keep said records. The statements contained in this affidavit are made based on my personal knowledge of the business records practices of American Express. 4 All American Express credit card accounts are governed by a written agreement (the “Cardmember Agreement”) setting forth the terms and conditions of the account. When an American Express account is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreement provides that use of the card constitutes acceptance of the agreement. 5 All American Express Cardmember Agreements expressly provide that American Express may change the terms of the Cardmember Agreement from time to time. American Express advises current cardholders of changes through change-in-terms notices, which are either mailed to American Express cardmembers in separate mailings or included with or printed on the cardmembers’ monthly billing statements. ZATE TX_AENB_001 * THOMAS PIERREL Account ending in: 008 6 American Express maintains computerized records of the amounts due and owing to American Express for any transactions that occur when an individual uses an American Express credit card. The computerized records reflect all debits and credits in connection with the use of an American Express credit card. American Express sends or otherwise makes available monthly billing statements to cardmembers who carry a balance or are otherwise required to receive a monthly statement. 7 I have personally reviewed American Express’ records concerning defendant THOMAS PIERREL (“Defendant”). Those records reflect that Defendant opened an American Express credit card account, the current account number ending in 008 (the “Account”) in 04/2018. Consistent with American Express’ standard business practices, American Express’ records reflect that it mailed Defendant’s credit card, together with a copy of Defendant’s Cardmember Agreement, to Defendant when American Express opened Defendant’s Account. Copies of each of these Cardmember Agreements were transmitted to Defendant as they were periodically revised or updated. A true and correct copy of the Cardmember Agreement in effect at the time of cancellation of the Account is annexed hereto as Exhibit “A”. 8 American Express’ records further reflect that Defendant used the Account to pay for various goods and services and/or obtain cash advances. Consistent with American Express’ standard business practices, American Express’ records reflect that it transmitted monthly billing statements to Defendant. There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due and owing on the monthly statements provided to Defendant. 9 Pursuant to American Express’ records, under the terms of the Cardmember Agreement, Defendant defaulted in making the payments due on the Account. American Express’ records reflect that American Express closed Defendant’s Account. After giving Defendant credit for all payments made, if any, the amount justly due and owing as of 05/19/22 is $10,716.79, exclusive of court costs and attorneys’ fees. A true and correct copy of the monthly Account Statements for the defendant’s Account for the period(s) 12/26/21 to 01/26/22 is annexed hereto as Exhibit “B”. The attached statement dated 01/26/22 is in the amount of $13,813.61. Payments and/or adjustments were made on or about 05/13/22 in the amount of $3,096.82 subsequent to this statement being generated. 10. Defendant’s Account has not been sold or assigned by American Express, the original creditor of the account. ZATE TX_AENB_001 THOMAS PIERREL Account ending in: 008 11. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, in the military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor an infant, incompetent, under mental defect or infirm. Dated: B24 \20r By: a Name: Raquél Hernandez Title: Assistant Custodian of Records STATE OF ARIZONA COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this oe 7 ey of , 2022 ken Lrobey (Seal) Notiry o LINDY ISENBERG Notary Public - Arizona Maricopa County Commission # 573304 Sey my Comm, Expires Nov 2, 2023 ZATE TX_AENB 001 EXHIBIT A BICR Cardmember Agreement: Part 1 of 2 As of: 04/02/2018 Starwood Preferred Guest Issuer: American Express National Bank Cardmember Name: THOMAS PIERREL Credit Limit: $15,500 (Cash Advance Limit: $3,100) Account EOS Rates and Fees Table Teaco) Annual Percentage Rate (APR) for Purchases 18.74% This APR will vary with the market based on the Prime Rate. APR for Balance Transfers |18.74% for any balance transfer requests we may accept. This APR will vary with the market based on the Prime Rate. APR for Cash Advances 26.74% This APR will vary with the market based on the Prime Rate. Penalty APR and When it 129.99% Applies This APR will vary with the market based on the Prime Rate. This APR may be applied to your account if: 1) you make one or more late payments; or 2) your payment is retumed by your bank. We may also consider your creditworthiness in determining whether or not to apply the penalty APR to your Account. How Long Will the Penalty APR Apply? If the penalty APR is applied, it will apply for at least 6 months. We will review your Account every 6 months after the penalty APR is applied. The penalty APR will continue to apply until you have made timely payments with no returned payments during the 6 months being reviewed. Paying Interest Your due date is at least 25 days after the close of each billing period. We will not charge you interest on purchases if you pay each month your entire balance (or, if you have a plan outstanding, your balance adjusted for plans) by the due date. We will begin charging interest on cash advances and balance transfers on the transaction date. Plan Fee (Fixed Finance Up to 0.82% of each purchase moved into a plan based on the plan duration, the APR that Charge) would otherwise apply to the purchase, and other factors. For Credit Card Tips from | To learn more about factors to consider when applying for or using a credit card, visit the Consumer Financial the website of the Consumer Financial Protection Bureau at Protection Bureau ttp:/|www.consumerfinance.gov/learnmore tt Annual Membership Fee $0 for the first year, then $95 Transaction Fees * Balance Transfer Either $5 or 3% of the amount of each transfer, whichever is greater. * Cash Advance Either$5 or 3% of the amount of each cash advance, whichever is greater. * Foreign Transaction None Penalty Fees * Late Payment Up to $38. + Returned Payment Up to $38, * Overlimit None How we calculate interest: We use the Average Daily Balance method (including newtransactions). See the How we calculate interest section in Part 2. Your Billing Rights: See Part 2 for information on how to exercise your rights to dispute transactions. (MEN M1 UA070000004 1065928 1065879 Page 1 of 4 . . How Rates and Fees Work Calculating The Annual Percentage Rate (APR) for variable rates is determined by adding an amount (margin) to APRs and DPRs the Prime Rate (see Determining the Prime Rate in Part 2). The Daily Periodic Rate (DPR) is 1/365th of the APR, rounded to one ten-thousandth of a percentage point. Rate Description Prime + Margin APR DPR Purchase Prime + 13.99% 18.74% 0.0513% Balance Transfer Prime + 13.99% 18.74% 0.0513% Cash Advance Prime + 21.99% 28.74% 0.0733% Penalty Prime + 25.99%" 29.99% 0,0822% *The variable penalty APR will not exceed 29.99% Penalty APR for new The penalty APR may apply to new transactions if: if the penalty APR applies to a balance, it will transactions * you do not pay at least the Minimum Payment apply to charges added to that balance 15 or Due by the Payment Due Date on one or more days after we send you notice. more occasions; or ‘We will review your Account every 6 months after * your payment is returned by your bank. the penalty APR is applied. The penalty APR will continue to apply until you have made timely payments with no returned payments during the 6 We may also consider your creditworthiness in months being reviewed. determining whether or not to apply the penalty APR to your Account. We add fees to a purchase balance, unless we tell you otherwise. Annual Membership This fee is on the Rates and Fees Table on page 1 of Part 1. Plan Fee Up to 0.82% of each purchase moved into a plan based on the plan duration, the APR that would otherwise apply to the purchase, and other factors. This fee is a fixed finance charge that will be charged each month that a plan fs active. The dollar amount of your plan fee will be disclosed when you set up a plan. For more information, see About the Plan It Feature in Part 2 of your Cardmember Agreement. Late Payment Up to $38. If we do not receive the Minimum Payment Due by its Payment Due Date, the fee is $27. If this happens again within the next 6 billing periods, the fee is $38. However, the late fee will not exceed the Minimum Payment Due. Paying late may also result in a penalty APR. See Penalty APR for new transactions above. Returned Payment Up to $38. If you make a payment that is returned unpaid the first time we present it to your bank, the fee is $27. If you do this again within the same billing period or the next 6 billing periods, the fee is $38. However, the returned payment fee will not exceed the applicable Minimum Payment Due. A returned payment may also result in a penalty APR. See Penalty APR for new transactions above. Returned Check $38 if you use your card to cash a check at one of our approved locations and the check is returned unpaid. We will also charge you the unpaid amount, ‘Overlimit None. See Credit limit and cash advance limit in Part 2. Account Re-opening $25 if your Account is cancelled, you ask us to re-open it, and we do so. Balance Transfer 3% of the transaction, with a minimum of $5. A different fee may apply if stated in a promotional offer or at the time of a transaction. This fee is a finance charge. We will add it to the same balance as the balance transfer. Cash Advance 3% of the withdrawal and other services you obtain (including any fee charged by the ATM operator), with a minimum of $5. We will add this fee to the cash advance balance. Foreign Transaction None Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. (NNN C1. £UA0710000004 1065928 1065879 Page 2 of 4 Supplement to the Cardmember Agreement How Your Reward Program Works Starwood Preferred Guest’ Starpoints” Eligible purchases do NOT include: How you receive points You receive 1 Starpoint® (point) for each $1 of eligible purchases on your Starwood Preferred * fees or interest charges, . balance transfers, Guest® Credit Card from American Express (Card . cash advances, Account). . purchases of traveler's checks, Eligible purchases are purchases for goods and . purchases or reloading of prepaid cards, or services minus returns and other credits. ° purchases of any cash equivalents. How you receive You receive 1 additional point (for a total of 2 Merchants are typically assigned codes and additional points points) for each $1 of eligible purchases on your categorized based on what they primarily sell. A Card Account charged directly with participating purchase will not receive additional points if the Starwood properties, standalone Starwood retail merchant, or a particular merchant location, uses establishments, and Starwood online stores that, a code that is not eligible for additional points. For in each case, are wholly owned by Starwood questions about additional points on a purchase, Hotels & Resorts Worldwide, LLC (a subsidiary of call the number on the back of your Card. Marriott International, Inc.) and its affiliates. A purchase may not receive additional points if You will receive 1 additional point (for a total of the merchant submits the purchase using a mobile 2 points) for each $1 of eligible purchases on or wireless card reader or if you use a mobile or your Card Account charged directly with hotels digital wallet. participating in Marriott Rewards®, standalone Please visit americanexpress.com/rewards-info Marriott branded retail establishments, and for more information about rewards. Marriott branded online stores (including online From time to time, we may make promotional purchases of Marriott branded gift cards), that in offers of bonus points. These offers include each case, are owned by Marriott International, terms about how you can earn the bonus points Inc. and its affiliates. and when you can use them. These offer terms Purchases made through a third-party payment may differ from the terms above concerning account or on an online marketplace (with multiple points earned for eligible purchases to your Card retailers) will not receive additional points. Account, including about when you can use the points. You can view your points earned yearto date on the Card by logging onto your online account at americanexpress.com and viewing your account summary page. When we transfer points We transfer points to your loyalty program account after the end of the billing period in which you received them. Bonus points received from your Card will be posted to your SPG ® account up to 12 weeks after the end of each month. Your account must not be cancelled or delinquent at the time of bonus fulfillment. When you will ifthe Minimum Payment Due is not paid by the You may reinstate those points within the next 12 forfeit points Closing Date of the billing period in which it is billing periods if your Card Account is not past due due, you will forfeit the points you received for and you pay a $35 fee. eligible purchases during that billing period. For example, if your billing period closes January 15 and the minimum payment for that billing period is due on February 10, and you do not make that minimum payment due by the close of your next billing period on February 15 , then you will not earn points for spend in the billing period ending February 15. EN CMAEUP'SP0000205 Page 3 of 4 . + Starwood Gold Preferred You may receive enrollment in the Gold Preferred again qualifies you for enrollment, or you qualify Guest Level Guest level of the loyalty program based on your for Gold Preferred Guest status under the loyalty eligible purchases for the calendar year. If your program terms. eligible purchases during a calendar year total You cannot receive enrollment in the Gold $30,000 or more, you will be enrolled for at least Preferred Guest level through this reward program 12 months in the Gold Preferred Guest level of the if you are already enrolled at the Gold Preferred loyalty program. Guest level or any higher level. Itwill take about 12 to 16 weeks for your A calendar year is from January 1 to December 31 enrollment in the Gold Preferred Guest level to regardless of when you open your Card Account. become effective. Only the Basic Cardmember will be enrolled. Your enroliment will expire after 12 months unless your eligible purchases during the next calendar year Starwood Elite Status Upon opening your Card Account and, by February 15th of each subsequent calendar year it is open, Credit for 2 stays towards your Starwood Preferred Guest elite status you will receive from Starwood credit and credit for 5 nights toward your Starwood Preferred Guest Elite status. This benefit is limited to one annual 2 stay credit and one annual 5 night Elite status credit per Starwood Preferred Guest Credit Card account. You will not receive additional 2 stay or 5 night Elite status credits if you have multiple Card Accounts. Credits and status are subject to the terms and conditions of the Starwood Preferred Guest program. Other things you should You will only receive rewards for eligible Points, certificates and membership in the loyalty know about this program purchases for personal, family or household use. program are subject to the Starwood Preferred Guest Loyalty Program Terms and Conditions. ‘We may change the terms of this reward program You should refer to that document, which can be at our discretion. If you violate or abuse this found at www.SPG.com, for details on: reward program, you may forfeit some or all of your points. « Starwood's right to change its program terms. « other conditions that may apply to Starwood's We are not responsible for points after they program. are credited to your Starwood Preferred Guest Account. We are also not responsible for the actions of Starwood on your Starwood Preferred Guest Account. ME CAEUPSP0000205 Page 4 of 4 27775 Detail of Changes to Your Cardmember Agreement This notice amends the Cardmember Agreement (the “Agreement") as described below. We have the right to amend as described in the Agreement. Any terms in the Agreement conflicting with this change are replaced fully and completely. Terms not changed by this notice remain in full force and effect. A. Issuer American Express Bank, FSB ("FSB") will undergo a legal entity change and be known as American Express National Bank ("AENB") as of April 1, 2018. Following that date, AENB will become the issuer of your Account. To review our Privacy Notice, please visit americanexpress.com/privacycenter. B, Determining the Prime Rate Effective with billing periods beginning in April 2018, in Part 2 of the Agreement, we are amending the Determining Prime Rate sub section of the About Interest Charges section by deleting the following paragraph: We use the Prime Rate from the rates section of The Wall Street Journal. The Prime Rate for each billing period is the Prime Rate published in The Wall Street Journal 2 days before the Closing Date of the billing period. And replacing with the following paragraph: We use the Prime Rate from the rates section of The Wall Street Journal. The Prime Rate for each billing period is the Prime Rate published in The Wall Street Journal on the Closing Date of the billing period. CMAEUDFY 1000106. Page 1 of 2 This page intentionally left blank. CMAEUDFY1000106 Page 2 of 2 . Doc 28255 FDR 1065928 Cardmember Agreement: Part 2 of 2 How Your American Express Account Works Introduction About your Cardmember This document together with Part 1 make up the When you use the Account (or you sign or keep the Agreement Cardmember Agreement (Agreement) tor the Account card), you agree to the terms of the Agreement. identified on page 1 of Part 1. Any supplements or amendments are also part of the Agreement. Changing the Agreement We may change this Agreement, subject to applicable Changes to some terms may require 45 days advance law. We may do this in response to the business, legal or notice, and we will tell you in the notice if you have competitive environment. This written Agreement is a final the right to reject a change. We cannot change certain expression of the agreement governing the Account. The terms during the first year of your Cardmembership. written Agreement may not be contradicted by any alleged oral agreement. We cannot increase the interest rate on existing balances except in limited circumstances. Words we use in We, us, and ourmean the issuer shown on page 1 of A purchase is a charge for goods or services. A cash the Agreement Part 1. You and your mean the person who applied for advance is a charge to get cash or cash equivalents. this Account and for whom we opened the Account. You A balance transfer is a charge to pay an amount and your also mean anyone who agrees to pay for this you owe on another credit card account. A planis Account, You are the Basic Cardmember. You may a portion of your account balance that you have request a card for an Additional Cardmember (see selected to pay over time through a set number of About Additional Cardmembers in Part 2). monthly payments using Plan It. Card means any card or other device that we issue to To pay by a certain date means to send your payment access your Account. A charge is any amount added ‘so that we receive it and credit it to your Account by to your Account, such as purchases, cash advances, that date (see About your payments in Part 2). balance transters, fees and interest charges. About using your card Using the card You may use the card to make purchases. At our We may (but are not required to) tell these merchants discretion, we may permit you to create plans, make and third parties if your expiration date or card cash advances or balance transfers. You cannot transfer number changes or if your account status is updated, balances from any other account issued by us or our including if your account is cancelled. If you do not affiliates. want us to share your updated account information, please contact us using the number on the back of You may arrange for certain merchants and third parties your card. to store your card number and expiration date, so that, for example: Keep your card safe and don't let anyone else use it. ® the merchant may charge your account at regular If your card is lost or stolen or your Account is being intervals; or used without your permission, contact us right away. © you may make charges using that stored card You may not use your Account for illegal activities. intormation. Promise to pay You promise to pay all charges, including: © charges you make, even if you do not present your card or sign for the transaction, ® charges that other people make if you let them use your Account, and charges that Additional Cardmembers make or permit others to make. Credit limit and cash We assign a Credit Limitto your Account. We may make your Account balance (including fees and interest) advance limit part of your Credit Limit available for cash advances is not more than your Credit Limit, and (Cash Advance Limit). There may also be a limit on the your cash advance balance (including fees and amount you can withdraw from ATMs in a given period. interest) is not more than your Cash Advance The Credit Limit and Cash Advance Limit are shown on Limit. age 1 of Part 1 and on each billing statement. We may approve charges that cause your Account balance to go over your Credit Limit. If we do this, We may increase or reduce your Credit Limit and Cash ‘we will not charge an overlimit fee. If we ask you to Advance Limit. We may do so even if you pay on time and promptly pay the amount of your Account balance your Account is not in default. above your Credit Limit, you agree to do so. You agree to manage your Account so that: Declined transactions We may decline to authorize a charge. Reasons we may and your Account is not in default. We are not do this include suspected fraud and our assessment of responsible for any losses you incur if we do not your creditworthiness. This may occur even if the charge authorize a charge. And we are not responsible if any would not cause you to go over your Credit Limit merchant refuses to accept the card. Version 1065928 Page 1 of 10 About the Plan It feature ‘We may offer you Plan It, which allows you to create to us, including Annual Membership fees. payment plan for qualifying purchases, subject to a Your ability to initiate new plans will be based on a plan fee. This fee is a fixed finance charge that will be variety of factors such as your creditworthiness or charged each month that a plan is active. your Credit Limit. You will not be able to initiate new You may use this feature by selecting a qualifying plans if you enroll into a debt management program, purchase and a plan duration. You will be able to view if you make a payment that is returned unpaid, if the monthly plan payments, including the plan fee, your Account is delinquent, or if your Account is for your selection. Each plan fee will be disclosed cancelled. We will tell you the number of active plans prior to your establishing the applicable plan and will you may have and we may change this number at be based on the plan duration, the APR that would any time. The plan durations offered to you will be at otherwise apply to the purchase, and other factors. our discretion and will be based on a variety of factors When you set up a plan, the purchase will be moved such as your creditworthiness, the purchase amount, to aplan balance and will be subject to a plan fee and your Account history. instead of the APR for purchases. Plans cannot be cancelled after they have been set A qualifying purchase tor Plan itis a purchase of at up but you can choose to pay them early by paying least a specified dollar amount and does not include the New Balance shown on your most recent billing a purchase of cash or cash equivalent, a purchase statement in full. If you pay a plan off early, you will subject to Foreign Transaction Fees or any fee owed not incur any future plan fees on that plan. About your payments When you must pay You must pay at least the Minimum Payment Due by at least the Minimum Payment Due in such time and the Payment Due Date. The Minimum Payment Due manner by the Payment Due Date shown on your and Payment Due Date ate shown on each billing billing statement. statement, Each statement also shows a Closing Date. The Each statement also states the time and manner Closing Date is the last day of the billing period by which you must make your payment for it to be covered by the statement. Each Closing Date is about credited as of the same day it is received, For your 80 days after the previous statement's Closing Date. payment to be considered on time, we must receive How to make payments Make payments to us in U.S. dollars with: If we receive it after that time, we will credit the . asingle check drawn on a U.S. bank, or payment on the day after we receive it. . a single negotiable instrument clearable through if your payment does not meet the above the U.S. banking system, for example a money order, or requirements, there may be a delay in crediting your Account. This may result in late fees and additional . an electronic payment that can be cleared through interest charges (see How Rates and Fees Work on