Preview
Electronically Filed
3/6/2023 4:09 PM
Laura Richard
County Clerk
Fort Bend County, Texas
NO. 16-CCV-057130
AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT
BANK, §
Plaintiff § AT LAW NO 5
§
Vv. § FORT BEND COUNTY, TEXAS
NANNETTE RAY AKA NANNETTE M §
RAY,
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), Nannette Ray Aka Nannette M Ray, 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 000.
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 §.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
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
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. Id.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
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
s 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
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
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. /d. at *14.
10 Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this
matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of
material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be
granted summary judgment against Defendant(s), Nannette Ray Aka Nannette M Ray, for the
following:
1 The principal damages amount claimed for in Plaintiffs Complaint of
$62,700.34 minus any payments received after filing this litigation, and
2. All costs of this proceeding.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE_Litigation@ZwickerPC.com
(281) 494-0300
(281) 494-0213 fax
BY: Lasmine Lewis
[ ] JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] MELISSA REED
State bar number 24046695
[ X] JASMINE LEWIS, ESQ.
STATE BAR NUMBER 24104830
[ IMIRZA BAIG, ESQ.
State Bar Number 24126948
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of March, 2023, 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
[Vv] E-Service
[ ] Certified Mail
STEPHEN A. MENDEL
1155 DAIRY ASHFORD
STE 104
HOUSTON, TX 77079
INFO@MENDELLAWFIRM.COM
Cadmttte Lewis
[| [| JOHNETTA LANG, ESQ.
[ ] MELISSA REED, ESQ
[ X] JASMINE LEWIS, ESQ.
[ MIRZA BAIG, ESQ.
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
NO. 16-CCV-057130
AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT
BANK, §
Plaintiff AT LAW NO 5
Vv. FORT BEND COUNTY, TEXAS
NANNETTE RAY AKA NANNETTE M
RAY,
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. NANNETTE RAY AKA NANNETTE M RAY
EXHIBIT “A”
Affidavit in Support of Judgment
AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY
NANNETTE RAY AKA NANNETTE M RAY
Account ending in: 1000
No. 16-CCV-057130
AMERICAN EXPRESS NATIONAL BANK, § IN THE COUNTY COURT
Plaintiff
§ AT LAW NOS
Vv. §
§ FORT BEND COUNTY, TEXAS
NANNETTE RAY AKA NANNETTE M RAY §
Defendant §
BUSINESS RECORDS AFFIDAVIT
Before me, the undersigned authority, personally appeared Vivian Hinds, who, being by me duly sworn, deposed
as follows:
“My name is Vivian Hinds, I am of sound mind, capable of making this affidavit, and personally acquainted with
the facts herein stated:
I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK ("American Express")
Plaintiff in the above-styled and numbered cause. Attached hereto are 181 pages of records from
These said 181 pages of records are kept by American Express in the regular course of
business, and it was the regular course of business of American Express for an employee or a representative of
American Express, with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record
or to transmit information thereof to be included in such record; and the record was made at or near the time or
reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.
Further affiant sayeth naught.”
Vivian Hinds
Affiant
STATE OF ARIZONA
Ley wos
COUNTY OF MARICOPA
Subscribed and sworn (or affirmed) before me this Xr
fhen_t
LEONA PIANE
Gee? Notary Public Arizona
‘marieopa County
(Seal)
¢ Commission # 563318
My Corn. Expires Mat 23, 2023
Notary /
PRODUCTION ZATE
TX BRC_AENB 001
Cardmember Agreement: Part 1 of 2 As of: 07/21/2011
Plum Card Company Name: KIDS R KIDS 1TX
Issuer: American Express Bank, FSB Cardmember Name: NANNETTE RAY.
Account
Fees Table
Annual Membership Fee $0 for the first year, then $185
Transaction Fees
+ Foreign Transaction 2.7% of each transaction after conversion to US dollars.
Penalty Fees
+ Late Payment 1.5% then 2.99% of the past due amount (minimum: $39)
+ Returned Payment $3
MME CMAEUA0TO000011 996536 995091 Page 1 of2
How Fees Work
Annual Membership See the Rates and Fees Table on page 1 of Part 1. We will not charge for 1 additional card, we will
charge $45 for each additional card thereafter.
Late Payment Unless you follow the terms of the Defer Pay Option (See Defer Pay Option in Part 2 of this
Agreement):
$39 or 1.5% of the amount unpaid, whichever Is greater, if you do not pay the entire Amount Due shown
‘on your billing statement before the next Closing Date (lowa $15).
Also, we will charge $39 or 2.99% of the amount unpaid, whichever is greater, each next Closing Date
that an amount past due remains unpaid (lowa $15).
Returned Payment $38 if your payment is returned unpaid the first time we present it to your bank.
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.
Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Part 2 for Converting
charges made in a foreign currency.
Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement.
WEEE CMAEVA0TO000011 996536 995001 Page 2 of 2
27805
Notice of Changes to the Enclosed Cardmember Agreement
The terms of your Account are subject to change in accordance with the American Express Cardmember Agreement
(‘Agreement’) governing your Account referenced in or with this notice. Any language in the enclosed Agreement contrary
to or conflicting with terms amended herein Is replaced fully and completely. All terms of that Agreement not. amended
herein remain in full force and effect. These changes apply to existing balances and future balances on your Account. We
urge you and any Additional Cardmembers on your Account to read this notice carefully and file it along with your
Agreement in a safe place for future reference.
Late Payment Fee
On August 1, 2011, we are reducing the minimum amount of your Late Fee to $35. Accordingly, effective August 1, 2011,
the Late Fee shown on Page 1 of Part 1 of the enclosed Cardmember Agreement is deleted and replaced with “$35 or
1.5% of the past due amount, whichever is greater. tf you do not pay for two billing periods in a row, the fee is the greater
of $35 or 2.99% of the past due amount.” Also effective August 1, 2011, the description of how the Late Fee works on
Page 2 is deleted and replaced with the following:
“Unless you follow the terms of the Defer Pay Option (See Defer Pay Option in Part 2 of this Agreement):
$35 or 1.5% of the amount unpaid, whichever is greater, if you do not pay the entire Amount Due shown on your
billing statement before the next Closing Date (lowa $15).
For each following Closing Date that an amount past due remains unpaid, we may charge a fee of the greater of $35
or 2.99% of any amount past due (lowa $15).”
Returned Payment Fee
On August 1, 2011, we are reducing your Returned Payment Fee to-$35. Accordingly, effective August 1, 2011, the
Returned Payment Fee shown on Page 1 of Part 1 of the enclosed Cardmember Agreement is deleted and replaced with
“$35”. Also effective August 1, 2011, the description of how the Returned Payment Fee works on Page 2 is deleted and
replaced with the following:
“$35 if your payment is returned unpaid the first time we present it to your bank.”
CMAEUDFY1000107
Doc 27309
FDR 996536 Cardmember Agreement: Part 2 of 2
How your American Express Account Works
Introduction
About your This document together with Part 1 make up the When you or an Additional Cardmember, as defined
Cardmember Agreement Cardmember Agreement (Agreement) for the Account below, use the Account (or sign or keep a card), you and
identified on page 1 of Part 1. Any supplements or the Additional Cardmember agree to the terms of the
amendments are also part of the Agreement. Agreement.
Words we use in We, us, and our mean the issuer shown on page 1 of Card means any card or other device that we issue to
the Agreement Part 1. Except as provided below, Basic Cardmember access the Account. A charge is any amount added to the
means the person who applied for this Account or to Account, such as purchases and fees. A purchase is a
whom we address billing statements. Company means charge for goods or services.
the business for which the Account is established. To pay by a certain date means to send your payment
You and your mean the Basic Cardmember and the so that we receive it and credit it to your Account by that
Company. You agree, jointly and severally, to be bound date (see About your payments on page 2 of Part 2).
by the terms of this Agreement.
Additional At your request, we may issue cards to Additional You must tell Additional Cardmembers that:
Cardmembers ‘Cardmembers. They do not have accounts with us but * we may obtain, provide and use information about them.
they can use your Account subject to the terms of this + their use of the Account is subjectto this Agreement.
Agreement. You authorize us to give Additional Cardmembers
You are responsible for all use of the Account by information about the Account and to discuss it with
Additional Cardmembers and anyone they allow to use them.
the Account. You must pay for all charges they make. If you want to cancel an Additional Cardmember's right
You must share this agreement with all Additional to use your Account (and cancel their card) you must
Cardmembers. tell us.
Replacement Basic You must tell us if the Basic Cardmember is no longer an obligations and liabilities of the Basic Cardmember
Cardmember employee or officer of the Company or does not want to under this Agreement, as of the date that such person
be the Basic Cardmember. In that case, you must either teplaces the Basic Cardmember. That person is subject
close the Account, or propose another person to replace to our approval.
the Basic Cardmember. You agree that the Basic Cardmember remains the Basic
If you propose another person to replace the Basic Cardmember until we approve a replacement or the
Cardmember, that person must agree to assume the Account is closed.
About using your card
Using the card You may use the card to make purchases. You may also You, or any Additional Cardmembers, may arrange
use the card at an ATM to get cash from a checking for certain merchants to charge the Account at regular
account you designate. intervals. We may (but are not required to) tell these
Each Cardmember acknowledges and agrees that cards
merchants about the Account status or changes to your
card number or expiration date. You must notify the
are intended to be used for the Company's commercial merchants directly if you want them to stop charging the
or business purposes.
Account.
We decide whether to approve a charge based on how
Keep your card safe and don't let anyone else use it. If
you spend and pay on this Account and other accounts
your card is lost or stolen or your Account is being used
you have with us and our affiliates. We also consider
your credit history and your personal resources that we
without your permission, contact us right away. You may
not use your Account for illegal activities.
know about.
Promise to pay You promise to pay all charges, including: * charges that Additional Cardmembers make or permit
+ charges you make, even if you do not present your card others to make.
or sign for the transaction, Additional Cardmembers agree to be personally liable
* charges that other people make, whether or not you or for charges made using their card. We may seek pay-
an Additional Cardmember intend to let them use the ment from them for charges made on their card if neither
Account, subject to applicable law, and the Company nor the Basic Cardmember pay us.
Declined transactions We may decline to authorize a charge. Reasons we may We are not responsible for any losses you incur if we
do this include suspected fraud and our assessment do not authorize a charge. And we are not responsible if
of your creditworthiness. This may occur even if your any merchant refuses to accept the card.
Account is not in default.
Page 1 of 8
About your payments
When you must pay Payment of the New Balance is due upon receipt of your Each statement also shows a Closing Date. The Closing
statement unless you exercise the Defer Pay Option. Date is the last day of the billing period covered by the
Each statement also states the time and manner by statement. Each Closing Date is about 30 days after the
which you must make your payment for it to be credited previous statement's Closing Date.
as of the same day it is received.
Early Pay Discount Ifyou pay the New Balance on a statement within 10 Disputed charges do not become eligible purchases until
days after the Closing Date on that statement, then the dispute has been resolved and the charges remain
you will receive an Early Pay Discount (discount). on the Account,
The amount of your discount will be 1.5% of eligible You will receive the discount in the form of a statement
purchases made during the billing period covered by that credit.
statement.
You will not receive the discount if the Account
Eligible purchases are purchases for goods and services is closed or in default on the Closing Date of the billing
minus returns and other credits. period in which the credit is scheduled to be issued.
Eligible purchases do NOT include: You will not receive the discount for purchases that
* previoulsy deferred amounts, are not for use or consumption by the Company in its
. fees,
. purchases of traveler's checks, ordinary course of business.
. purchases or reloading of reloadable prepaid cards, or
. purchases of any cash equivalents.
Defer Pay Option Ifby the Please Pay By date on a statement you pay: Balance on that statement until the Closing Date of
* atleast 10% of the New Charges, the billing period following the one in which that New
+ any previously deferred payment amount, and Balance is due.
* any amounts past due, You cannot use the Defer Pay Option if the Account is in
then you can defer paying the remainder of the New default.
How to make payments Make payments to us in U.S. dollars with: statement. If we receive It after that time, we will credit
* asingle check drawn on a U.S. bank, or the payment on the day after we receive it.
* asingle negotiable instrument clearable through the If your payment does not meet the above requirements,
U.S. banking system, for example a money order, or there may be a delay in crediting the Account. This may
+ an electronic payment that can be cleared through the result in late fees and additional interest charges (see
USS. banking system. How Fees Work on page 2 of Part 1).
When making a payment by mail: Ifwe decide to accept a payment made in a foreign
+ make a separate payment for each Account, currency, we will choose a rate to convert your payment
+ mail your payment to the address shown on the into U.S. dollars, unless the law requires us to use a
payment coupon on the billing statement, and particular rate.
* write the Account number on your check or negotiable
instrument and include the payment coupon. If we process a late payment, a partial payment, or a
payment marked with any restrictive language, that will
If your payment meets the above requirements, we will have no effect on our rights and will not change this
credit it to the Account as of the day we receive it, as
long as we receive it by the time disclosed in the billing Agreement.
Other important information
Changing the We may change the terms of, or add new terms to, this This written Agreement is a final expression of the
Agreement Agreement. We may apply any changed or new terms to agreement governing the Account. The written
any existing and future balances on the Account, subject Agreement may not be contradicted by any alleged oral
to applicable law. agreement.
Converting charges made If you make a charge in a foreign currency, we will goverment agency or the highest interbank rate
in a foreign currency convert it into U.S. doflars on the date we or our we identify from customary banking sources on the
agents process it. Unless a particular rate is required conversion date or the prior business day. This rate may
by law, we will choose a conversion rate that is differ from rates that are in effect on the date of your
acceptable to us for that date. The rate we use is no charge. We will bill charges converted by establishments
more than the highest official rate published by a (such as airlines) at the rates they use.
Changing your You must notify us immediately if you change the: if you have more than one account, you need to notify us
billing address * mailing address to which we send billing statements. separately for each account.
* email address to which we send notice that the We may update your billing address if we receive
billing statement is available online. Information that it has changed or is incorrect.
* telephone and fax numbers.
+ legal entity of the Company.
+ tax identification number,
Closing your Account You may instruct us to close the Account by calling us or The Basic Cardmember and the Company remain jointly
writing to us. The Basic Cardmember agrees to inform and severally liable for all Charges made on the Account.
the Company prior to instructing us to do so.
Version 996536 Page 2 of 8
5
‘We may: We may do any of these things at our discretion, even if
Cancelling or
. cancel the Account. you pay on time and the Account is not in default.
suspending your Account
suspend the ability to make charges. If the Account is cancelled, you must destroy all cards.
. cancel or suspend any feature on the Account.
. We may agree to reinstate the Account after a
notify merchants that the Account has been cancellation. If we do this, we may:
cancelled or suspended.
+ reinstate any cards, including additional cards.
If we do any of these, you must still pay us for all + charge you any applicable fees, including annual fees.
charges under the terms of this Agreement. + charge you a fee for reinstating the Account.
About default ‘We may consider your Account to be in default if: If we consider the Account in default, we may:
. you violate a provision of this Agreement, + suspend the ability to make charges.
. you give us false information, * cancel or suspend any feature on the Account.
. you file for bankruptcy, * cancel the Account and require you to pay the Account
. you default under another agreement you have with us balance immediately.
oran affiliate,
. you become incapacitated or die, or
. we believe you are unable or unwilling to pay your
debts when due.
to collect amounts you owe or to
Collection costs You agree to pay all reasonable costs, including attorneys’ fees, that we incur
protect ourselves from loss, harm or risk relating to default.
Credit reports You agree that we may obtain credit reports about credit reporting agency if you fail to comply with any term
you (and, subjectto applicable law, any Additional of this Agreement. This may have a negative impact on
your or any Additional Cardmember’s credit report.
Cardmembers), investigate your and any Additional
Cardmembers’ ability to pay, and obtain information If you believe information we have given to a credit
about you and any Additional Cardmembers from reporting agency is incorrect, write to us at: American
other sources. And you agree that we may use such Express Credit Bureau Unit, P.O. Box 981537, El Paso,
information for any purposes, subject to applicable law. TX 79998-1537. When you write to us, tell us the specific
You agree that we may give information about the information you believe is incorrect.
Accountto credit reporting agencies. We may tell a
‘We mail you notices through the U.S. mail, postage prepaid, and address them to you at the latest billing address
Sending you notices
shown on our records. Any notice that we send you this way is deemed to be given when deposited in the U.S.
their request
mail. Additionally, we may mail notices and information to Additional Cardmembers at
From time to time, we may contact you and any to ensure the quality of customer service or when itis
We may contact you required by law.
Additional Cardmembers about topics ranging from
servicing to marketing offers to collecting amounts you You can choose to not receive marketing offers from us.
we. We may monitor and record phone calls between To do this, call us at 1-800-297-8378 or log on to
you (or any Additional Cardmembers) and us. We do this www.americanexpress.com/communications
We or our affiliates may tell you about insurance and Company or another affiliate is the insurer or reinsurer.
About insurance products
non-insurance products, services or features that may Compensation may influence what products and
have a fee. One of our affiliates may act on behalf providers we or our affiliates tell you about.
of a provider of these products. The affiliate may be We may share information about you with our affiliates
compensated for this. The insurance products are not so they can identify products that may interest you. We
offered or sold by us or on our behalf. Our affiliates may may be compensated for this information.
get additional compensation when Amex Assurance
When you pay us by check, you authorize us to {fwe do this, your payment may be deducted from your
How we handle bank or other asset account on the same day we receive
electronic debits from electronically deduct the amount from your bank or other
asset account. your check. Also, you will not receive that cancelled
your checking account check with your bank or asset account billing statement.
We may process the check electronically by transmitting
to your financial institution: If we cannot collect the funds electronically, we may
+ the amount, issue a draft against your bank or other asset account
+ the routing number, for the amount of the check.
+ the account number, and
+ the check serial number.
enables you to make charges without
ExpressPay Cards issued on the Account may be equipped with ExpressPay. ExpressPay
having the card swiped or imprinted. You can call us to deactivate ExpressPay at any time. Also, we may deactivate
ExpressPay at any time.
Privacy Act of 1974 notice Some federal agencies may accey pt the card under authority of statute. When you or Additional Cardmembers make
uses such
charges at these agencies, we collect certain charge informatio n. That information may be put to routine
marketing use. Other
as processing, billing and collections. It may also be aggregated for reporting, analysis and
routine uses by agencies may be published in the Federal Register.
Account at our discretion.
Change the benefits We have the rightto add, modify or delete any benefit, service, or feature of the
Version 996536 Page 3 of 8
6
Assigning the We may sell, transferor assign this Agreement and the Account. We may do so at any time without notifying you.
Agreement You may not sell, assign or transfer the Account or any of your obligations under this Agreement.
Assigning claims If you dispute a charge with a merchant, we may credit the Account for all or part of the disputed charge. If we do
80, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You and any
Additional Cardmembers agree not to pursue any claim against the merchant for the credited amount. And you and
any Additional Cardmembers must cooperate with us if we decide to do so.
We do not waive We may choose to delay enforcing or to not exercise rights under this Agreement. If we do this, we do not waive our
our rights. rights to exercise or enforce them on any other occasion.
Governing law Utah law and federal law govern this Agreement and the Account. They govern without regard to internal principles
of conflicts of law. We are located in Utah. We hold the Account in Utah. We entered into this Agreement with you in
Utah.
Version 996536 Page 4 of 8
Arbitration
This Arbitration provision sets forth the circum- electing to use arbitration. If our selection of Arbit ion Procedures.
‘stances and procedures under which claims may either of these organizations is unacceptable to This Arbitration provision is made pursuant to
be arbitrated instead of litigated in court. you, you may select the other organization within transactions involving interstate commerce and
Definitions
30 days after you receive notice of our selection. ‘shall be governed by the FAA. The arbitration
As used in this Arbitration provision, the term For a copy of the code, to file a claim or for other shall be governed by the applicable code, except
information, contact either JAMS (1920 Main St that this Agreement shall apply if there are any
claim means any claim, dispute or controversy
between you and us arising from or relating to
#300, Irvine, CA 92614 or jamsadr.com) or AAA conflicts, The arbitrator shall apply applicable
(335 Madison Ave, New York, NY 10017 or adr. substantive law consistent with the FAA and ap-
your Account, this Agreement, the Electronic plicable statutes of limitations, shall honor claims
org).
Funds Transfer Services Agreement, and of privilege recognized at law, and, at the timely
any other related or prior agreement that you In addition to the organizations listed above, request of either party, shall provide a brief
may have had with us, or the relationships claims may be referred to any other arbitration
written explanation of the basis for the decision.
resulting from any of the above agreements, organization that is mutually agreed upon
The arbitration proceeding shall not be governed
except for the validity, enforceability or scope in writing by you and us, or to an arbitration
by any federal or state rules of civil procedure
of this Arbitration provision. For purposes of organization or arbitrator(s) appointed pursuant
or rules of evidence. Any party may request that
to § 5 of the Federal Arbitration Act, 9 U.S.C.
this Arbitration provision, you and us also
Includes any corporate parent, or wholly or §§ 1-16, as it may be amended (FAA), provided
the arbitrator expand the scope of discovery by
that any such organization and arbitrator(s)
doing so in writing and copying any other par-
majority owned subsidiaries, affiliates, any
licensees, predecessors, successors, assigns, will enforce the terms of the Restrictions on
ties, who shall have 15 days to make objections.
The arbitrator will notify the parties of his/her
Arbitration subsection set forth below.
any purchaser of any accounts, all agents,
employees, directors and representatives of any
decision within 20 days of any objecting party's
Significance of Arbitration submission. The arbitrator shall take reason-
of the foregoing, and other persons referred to IF ARBITRATION IS CHOSEN BY ANY PARTY able steps to preserve privacy. The arbitrator's
below in the definition of claims. Ciaim includes WITH RESPECT TO ACLAIM, NEITHER award shail be final and binding, except for any
claims of every kind and nature, including but YOU NOR WE WILL HAVE THE RIGHT TO right of appeal provided by the FAA; however,
not limited to, initial claims, counterclaims, cross- LITIGATE THAT CLAIM IN COURT OR HAVE elther party shall h
Preview
Electronically Filed 3/6/2023 4:09 PM Laura Richard County Clerk Fort Bend County, Texas NO. 16-CCV-057130 AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT BANK, § Plaintiff § AT LAW NO 5 § Vv. § FORT BEND COUNTY, TEXAS NANNETTE RAY AKA NANNETTE M § RAY, 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), Nannette Ray Aka Nannette M Ray, 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 000. 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 §.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 AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY 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. Id. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY 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 s 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 AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY 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. /d. at *14. 10 Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, American Express National Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Nannette Ray Aka Nannette M Ray, for the following: 1 The principal damages amount claimed for in Plaintiffs Complaint of $62,700.34 minus any payments received after filing this litigation, and 2. All costs of this proceeding. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE_Litigation@ZwickerPC.com (281) 494-0300 (281) 494-0213 fax BY: Lasmine Lewis [ ] JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] MELISSA REED State bar number 24046695 [ X] JASMINE LEWIS, ESQ. STATE BAR NUMBER 24104830 [ IMIRZA BAIG, ESQ. State Bar Number 24126948 AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY CERTIFICATE OF SERVICE I hereby certify that on the 6th day of March, 2023, 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 [Vv] E-Service [ ] Certified Mail STEPHEN A. MENDEL 1155 DAIRY ASHFORD STE 104 HOUSTON, TX 77079 INFO@MENDELLAWFIRM.COM Cadmttte Lewis [| [| JOHNETTA LANG, ESQ. [ ] MELISSA REED, ESQ [ X] JASMINE LEWIS, ESQ. [ MIRZA BAIG, ESQ. AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY NO. 16-CCV-057130 AMERICAN EXPRESS NATIONAL § IN THE COUNTY COURT BANK, § Plaintiff AT LAW NO 5 Vv. FORT BEND COUNTY, TEXAS NANNETTE RAY AKA NANNETTE M RAY, 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. NANNETTE RAY AKA NANNETTE M RAY EXHIBIT “A” Affidavit in Support of Judgment AMERICAN EXPRESS NATIONAL BANK V. NANNETTE RAY AKA NANNETTE M RAY NANNETTE RAY AKA NANNETTE M RAY Account ending in: 1000 No. 16-CCV-057130 AMERICAN EXPRESS NATIONAL BANK, § IN THE COUNTY COURT Plaintiff § AT LAW NOS Vv. § § FORT BEND COUNTY, TEXAS NANNETTE RAY AKA NANNETTE M RAY § Defendant § BUSINESS RECORDS AFFIDAVIT Before me, the undersigned authority, personally appeared Vivian Hinds, who, being by me duly sworn, deposed as follows: “My name is Vivian Hinds, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: I am an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK ("American Express") Plaintiff in the above-styled and numbered cause. Attached hereto are 181 pages of records from These said 181 pages of records are kept by American Express in the regular course of business, and it was the regular course of business of American Express for an employee or a representative of American Express, with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. Further affiant sayeth naught.” Vivian Hinds Affiant STATE OF ARIZONA Ley wos COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this Xr fhen_t LEONA PIANE Gee? Notary Public Arizona ‘marieopa County (Seal) ¢ Commission # 563318 My Corn. Expires Mat 23, 2023 Notary / PRODUCTION ZATE TX BRC_AENB 001 Cardmember Agreement: Part 1 of 2 As of: 07/21/2011 Plum Card Company Name: KIDS R KIDS 1TX Issuer: American Express Bank, FSB Cardmember Name: NANNETTE RAY. Account Fees Table Annual Membership Fee $0 for the first year, then $185 Transaction Fees + Foreign Transaction 2.7% of each transaction after conversion to US dollars. Penalty Fees + Late Payment 1.5% then 2.99% of the past due amount (minimum: $39) + Returned Payment $3 MME CMAEUA0TO000011 996536 995091 Page 1 of2 How Fees Work Annual Membership See the Rates and Fees Table on page 1 of Part 1. We will not charge for 1 additional card, we will charge $45 for each additional card thereafter. Late Payment Unless you follow the terms of the Defer Pay Option (See Defer Pay Option in Part 2 of this Agreement): $39 or 1.5% of the amount unpaid, whichever Is greater, if you do not pay the entire Amount Due shown ‘on your billing statement before the next Closing Date (lowa $15). Also, we will charge $39 or 2.99% of the amount unpaid, whichever is greater, each next Closing Date that an amount past due remains unpaid (lowa $15). Returned Payment $38 if your payment is returned unpaid the first time we present it to your bank. 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. Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Part 2 for Converting charges made in a foreign currency. Part 1, Part 2 and any supplements or amendments make up your Cardmember Agreement. WEEE CMAEVA0TO000011 996536 995001 Page 2 of 2 27805 Notice of Changes to the Enclosed Cardmember Agreement The terms of your Account are subject to change in accordance with the American Express Cardmember Agreement (‘Agreement’) governing your Account referenced in or with this notice. Any language in the enclosed Agreement contrary to or conflicting with terms amended herein Is replaced fully and completely. All terms of that Agreement not. amended herein remain in full force and effect. These changes apply to existing balances and future balances on your Account. We urge you and any Additional Cardmembers on your Account to read this notice carefully and file it along with your Agreement in a safe place for future reference. Late Payment Fee On August 1, 2011, we are reducing the minimum amount of your Late Fee to $35. Accordingly, effective August 1, 2011, the Late Fee shown on Page 1 of Part 1 of the enclosed Cardmember Agreement is deleted and replaced with “$35 or 1.5% of the past due amount, whichever is greater. tf you do not pay for two billing periods in a row, the fee is the greater of $35 or 2.99% of the past due amount.” Also effective August 1, 2011, the description of how the Late Fee works on Page 2 is deleted and replaced with the following: “Unless you follow the terms of the Defer Pay Option (See Defer Pay Option in Part 2 of this Agreement): $35 or 1.5% of the amount unpaid, whichever is greater, if you do not pay the entire Amount Due shown on your billing statement before the next Closing Date (lowa $15). For each following Closing Date that an amount past due remains unpaid, we may charge a fee of the greater of $35 or 2.99% of any amount past due (lowa $15).” Returned Payment Fee On August 1, 2011, we are reducing your Returned Payment Fee to-$35. Accordingly, effective August 1, 2011, the Returned Payment Fee shown on Page 1 of Part 1 of the enclosed Cardmember Agreement is deleted and replaced with “$35”. Also effective August 1, 2011, the description of how the Returned Payment Fee works on Page 2 is deleted and replaced with the following: “$35 if your payment is returned unpaid the first time we present it to your bank.” CMAEUDFY1000107 Doc 27309 FDR 996536 Cardmember Agreement: Part 2 of 2 How your American Express Account Works Introduction About your This document together with Part 1 make up the When you or an Additional Cardmember, as defined Cardmember Agreement Cardmember Agreement (Agreement) for the Account below, use the Account (or sign or keep a card), you and identified on page 1 of Part 1. Any supplements or the Additional Cardmember agree to the terms of the amendments are also part of the Agreement. Agreement. Words we use in We, us, and our mean the issuer shown on page 1 of Card means any card or other device that we issue to the Agreement Part 1. Except as provided below, Basic Cardmember access the Account. A charge is any amount added to the means the person who applied for this Account or to Account, such as purchases and fees. A purchase is a whom we address billing statements. Company means charge for goods or services. the business for which the Account is established. To pay by a certain date means to send your payment You and your mean the Basic Cardmember and the so that we receive it and credit it to your Account by that Company. You agree, jointly and severally, to be bound date (see About your payments on page 2 of Part 2). by the terms of this Agreement. Additional At your request, we may issue cards to Additional You must tell Additional Cardmembers that: Cardmembers ‘Cardmembers. They do not have accounts with us but * we may obtain, provide and use information about them. they can use your Account subject to the terms of this + their use of the Account is subjectto this Agreement. Agreement. You authorize us to give Additional Cardmembers You are responsible for all use of the Account by information about the Account and to discuss it with Additional Cardmembers and anyone they allow to use them. the Account. You must pay for all charges they make. If you want to cancel an Additional Cardmember's right You must share this agreement with all Additional to use your Account (and cancel their card) you must Cardmembers. tell us. Replacement Basic You must tell us if the Basic Cardmember is no longer an obligations and liabilities of the Basic Cardmember Cardmember employee or officer of the Company or does not want to under this Agreement, as of the date that such person be the Basic Cardmember. In that case, you must either teplaces the Basic Cardmember. That person is subject close the Account, or propose another person to replace to our approval. the Basic Cardmember. You agree that the Basic Cardmember remains the Basic If you propose another person to replace the Basic Cardmember until we approve a replacement or the Cardmember, that person must agree to assume the Account is closed. About using your card Using the card You may use the card to make purchases. You may also You, or any Additional Cardmembers, may arrange use the card at an ATM to get cash from a checking for certain merchants to charge the Account at regular account you designate. intervals. We may (but are not required to) tell these Each Cardmember acknowledges and agrees that cards merchants about the Account status or changes to your card number or expiration date. You must notify the are intended to be used for the Company's commercial merchants directly if you want them to stop charging the or business purposes. Account. We decide whether to approve a charge based on how Keep your card safe and don't let anyone else use it. If you spend and pay on this Account and other accounts your card is lost or stolen or your Account is being used you have with us and our affiliates. We also consider your credit history and your personal resources that we without your permission, contact us right away. You may not use your Account for illegal activities. know about. Promise to pay You promise to pay all charges, including: * charges that Additional Cardmembers make or permit + charges you make, even if you do not present your card others to make. or sign for the transaction, Additional Cardmembers agree to be personally liable * charges that other people make, whether or not you or for charges made using their card. We may seek pay- an Additional Cardmember intend to let them use the ment from them for charges made on their card if neither Account, subject to applicable law, and the Company nor the Basic Cardmember pay us. Declined transactions We may decline to authorize a charge. Reasons we may We are not responsible for any losses you incur if we do this include suspected fraud and our assessment do not authorize a charge. And we are not responsible if of your creditworthiness. This may occur even if your any merchant refuses to accept the card. Account is not in default. Page 1 of 8 About your payments When you must pay Payment of the New Balance is due upon receipt of your Each statement also shows a Closing Date. The Closing statement unless you exercise the Defer Pay Option. Date is the last day of the billing period covered by the Each statement also states the time and manner by statement. Each Closing Date is about 30 days after the which you must make your payment for it to be credited previous statement's Closing Date. as of the same day it is received. Early Pay Discount Ifyou pay the New Balance on a statement within 10 Disputed charges do not become eligible purchases until days after the Closing Date on that statement, then the dispute has been resolved and the charges remain you will receive an Early Pay Discount (discount). on the Account, The amount of your discount will be 1.5% of eligible You will receive the discount in the form of a statement purchases made during the billing period covered by that credit. statement. You will not receive the discount if the Account Eligible purchases are purchases for goods and services is closed or in default on the Closing Date of the billing minus returns and other credits. period in which the credit is scheduled to be issued. Eligible purchases do NOT include: You will not receive the discount for purchases that * previoulsy deferred amounts, are not for use or consumption by the Company in its . fees, . purchases of traveler's checks, ordinary course of business. . purchases or reloading of reloadable prepaid cards, or . purchases of any cash equivalents. Defer Pay Option Ifby the Please Pay By date on a statement you pay: Balance on that statement until the Closing Date of * atleast 10% of the New Charges, the billing period following the one in which that New + any previously deferred payment amount, and Balance is due. * any amounts past due, You cannot use the Defer Pay Option if the Account is in then you can defer paying the remainder of the New default. How to make payments Make payments to us in U.S. dollars with: statement. If we receive It after that time, we will credit * asingle check drawn on a U.S. bank, or the payment on the day after we receive it. * asingle negotiable instrument clearable through the If your payment does not meet the above requirements, U.S. banking system, for example a money order, or there may be a delay in crediting the Account. This may + an electronic payment that can be cleared through the result in late fees and additional interest charges (see USS. banking system. How Fees Work on page 2 of Part 1). When making a payment by mail: Ifwe decide to accept a payment made in a foreign + make a separate payment for each Account, currency, we will choose a rate to convert your payment + mail your payment to the address shown on the into U.S. dollars, unless the law requires us to use a payment coupon on the billing statement, and particular rate. * write the Account number on your check or negotiable instrument and include the payment coupon. If we process a late payment, a partial payment, or a payment marked with any restrictive language, that will If your payment meets the above requirements, we will have no effect on our rights and will not change this credit it to the Account as of the day we receive it, as long as we receive it by the time disclosed in the billing Agreement. Other important information Changing the We may change the terms of, or add new terms to, this This written Agreement is a final expression of the Agreement Agreement. We may apply any changed or new terms to agreement governing the Account. The written any existing and future balances on the Account, subject Agreement may not be contradicted by any alleged oral to applicable law. agreement. Converting charges made If you make a charge in a foreign currency, we will goverment agency or the highest interbank rate in a foreign currency convert it into U.S. doflars on the date we or our we identify from customary banking sources on the agents process it. Unless a particular rate is required conversion date or the prior business day. This rate may by law, we will choose a conversion rate that is differ from rates that are in effect on the date of your acceptable to us for that date. The rate we use is no charge. We will bill charges converted by establishments more than the highest official rate published by a (such as airlines) at the rates they use. Changing your You must notify us immediately if you change the: if you have more than one account, you need to notify us billing address * mailing address to which we send billing statements. separately for each account. * email address to which we send notice that the We may update your billing address if we receive billing statement is available online. Information that it has changed or is incorrect. * telephone and fax numbers. + legal entity of the Company. + tax identification number, Closing your Account You may instruct us to close the Account by calling us or The Basic Cardmember and the Company remain jointly writing to us. The Basic Cardmember agrees to inform and severally liable for all Charges made on the Account. the Company prior to instructing us to do so. Version 996536 Page 2 of 8 5 ‘We may: We may do any of these things at our discretion, even if Cancelling or . cancel the Account. you pay on time and the Account is not in default. suspending your Account suspend the ability to make charges. If the Account is cancelled, you must destroy all cards. . cancel or suspend any feature on the Account. . We may agree to reinstate the Account after a notify merchants that the Account has been cancellation. If we do this, we may: cancelled or suspended. + reinstate any cards, including additional cards. If we do any of these, you must still pay us for all + charge you any applicable fees, including annual fees. charges under the terms of this Agreement. + charge you a fee for reinstating the Account. About default ‘We may consider your Account to be in default if: If we consider the Account in default, we may: . you violate a provision of this Agreement, + suspend the ability to make charges. . you give us false information, * cancel or suspend any feature on the Account. . you file for bankruptcy, * cancel the Account and require you to pay the Account . you default under another agreement you have with us balance immediately. oran affiliate, . you become incapacitated or die, or . we believe you are unable or unwilling to pay your debts when due. to collect amounts you owe or to Collection costs You agree to pay all reasonable costs, including attorneys’ fees, that we incur protect ourselves from loss, harm or risk relating to default. Credit reports You agree that we may obtain credit reports about credit reporting agency if you fail to comply with any term you (and, subjectto applicable law, any Additional of this Agreement. This may have a negative impact on your or any Additional Cardmember’s credit report. Cardmembers), investigate your and any Additional Cardmembers’ ability to pay, and obtain information If you believe information we have given to a credit about you and any Additional Cardmembers from reporting agency is incorrect, write to us at: American other sources. And you agree that we may use such Express Credit Bureau Unit, P.O. Box 981537, El Paso, information for any purposes, subject to applicable law. TX 79998-1537. When you write to us, tell us the specific You agree that we may give information about the information you believe is incorrect. Accountto credit reporting agencies. We may tell a ‘We mail you notices through the U.S. mail, postage prepaid, and address them to you at the latest billing address Sending you notices shown on our records. Any notice that we send you this way is deemed to be given when deposited in the U.S. their request mail. Additionally, we may mail notices and information to Additional Cardmembers at From time to time, we may contact you and any to ensure the quality of customer service or when itis We may contact you required by law. Additional Cardmembers about topics ranging from servicing to marketing offers to collecting amounts you You can choose to not receive marketing offers from us. we. We may monitor and record phone calls between To do this, call us at 1-800-297-8378 or log on to you (or any Additional Cardmembers) and us. We do this www.americanexpress.com/communications We or our affiliates may tell you about insurance and Company or another affiliate is the insurer or reinsurer. About insurance products non-insurance products, services or features that may Compensation may influence what products and have a fee. One of our affiliates may act on behalf providers we or our affiliates tell you about. of a provider of these products. The affiliate may be We may share information about you with our affiliates compensated for this. The insurance products are not so they can identify products that may interest you. We offered or sold by us or on our behalf. Our affiliates may may be compensated for this information. get additional compensation when Amex Assurance When you pay us by check, you authorize us to {fwe do this, your payment may be deducted from your How we handle bank or other asset account on the same day we receive electronic debits from electronically deduct the amount from your bank or other asset account. your check. Also, you will not receive that cancelled your checking account check with your bank or asset account billing statement. We may process the check electronically by transmitting to your financial institution: If we cannot collect the funds electronically, we may + the amount, issue a draft against your bank or other asset account + the routing number, for the amount of the check. + the account number, and + the check serial number. enables you to make charges without ExpressPay Cards issued on the Account may be equipped with ExpressPay. ExpressPay having the card swiped or imprinted. You can call us to deactivate ExpressPay at any time. Also, we may deactivate ExpressPay at any time. Privacy Act of 1974 notice Some federal agencies may accey pt the card under authority of statute. When you or Additional Cardmembers make uses such charges at these agencies, we collect certain charge informatio n. That information may be put to routine marketing use. Other as processing, billing and collections. It may also be aggregated for reporting, analysis and routine uses by agencies may be published in the Federal Register. Account at our discretion. Change the benefits We have the rightto add, modify or delete any benefit, service, or feature of the Version 996536 Page 3 of 8 6 Assigning the We may sell, transferor assign this Agreement and the Account. We may do so at any time without notifying you. Agreement You may not sell, assign or transfer the Account or any of your obligations under this Agreement. Assigning claims If you dispute a charge with a merchant, we may credit the Account for all or part of the disputed charge. If we do 80, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You and any Additional Cardmembers agree not to pursue any claim against the merchant for the credited amount. And you and any Additional Cardmembers must cooperate with us if we decide to do so. We do not waive We may choose to delay enforcing or to not exercise rights under this Agreement. If we do this, we do not waive our our rights. rights to exercise or enforce them on any other occasion. Governing law Utah law and federal law govern this Agreement and the Account. They govern without regard to internal principles of conflicts of law. We are located in Utah. We hold the Account in Utah. We entered into this Agreement with you in Utah. Version 996536 Page 4 of 8 Arbitration This Arbitration provision sets forth the circum- electing to use arbitration. If our selection of Arbit ion Procedures. ‘stances and procedures under which claims may either of these organizations is unacceptable to This Arbitration provision is made pursuant to be arbitrated instead of litigated in court. you, you may select the other organization within transactions involving interstate commerce and Definitions 30 days after you receive notice of our selection. ‘shall be governed by the FAA. The arbitration As used in this Arbitration provision, the term For a copy of the code, to file a claim or for other shall be governed by the applicable code, except information, contact either JAMS (1920 Main St that this Agreement shall apply if there are any claim means any claim, dispute or controversy between you and us arising from or relating to #300, Irvine, CA 92614 or jamsadr.com) or AAA conflicts, The arbitrator shall apply applicable (335 Madison Ave, New York, NY 10017 or adr. substantive law consistent with the FAA and ap- your Account, this Agreement, the Electronic plicable statutes of limitations, shall honor claims org). Funds Transfer Services Agreement, and of privilege recognized at law, and, at the timely any other related or prior agreement that you In addition to the organizations listed above, request of either party, shall provide a brief may have had with us, or the relationships claims may be referred to any other arbitration written explanation of the basis for the decision. resulting from any of the above agreements, organization that is mutually agreed upon The arbitration proceeding shall not be governed except for the validity, enforceability or scope in writing by you and us, or to an arbitration by any federal or state rules of civil procedure of this Arbitration provision. For purposes of organization or arbitrator(s) appointed pursuant or rules of evidence. Any party may request that to § 5 of the Federal Arbitration Act, 9 U.S.C. this Arbitration provision, you and us also Includes any corporate parent, or wholly or §§ 1-16, as it may be amended (FAA), provided the arbitrator expand the scope of discovery by that any such organization and arbitrator(s) doing so in writing and copying any other par- majority owned subsidiaries, affiliates, any licensees, predecessors, successors, assigns, will enforce the terms of the Restrictions on ties, who shall have 15 days to make objections. The arbitrator will notify the parties of his/her Arbitration subsection set forth below. any purchaser of any accounts, all agents, employees, directors and representatives of any decision within 20 days of any objecting party's Significance of Arbitration submission. The arbitrator shall take reason- of the foregoing, and other persons referred to IF ARBITRATION IS CHOSEN BY ANY PARTY able steps to preserve privacy. The arbitrator's below in the definition of claims. Ciaim includes WITH RESPECT TO ACLAIM, NEITHER award shail be final and binding, except for any claims of every kind and nature, including but YOU NOR WE WILL HAVE THE RIGHT TO right of appeal provided by the FAA; however, not limited to, initial claims, counterclaims, cross- LITIGATE THAT CLAIM IN COURT OR HAVE elther party shall h