Preview
NO. 22-CCV-071084
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
§ AT LAW NO6
Vv.
§ FORT BEND COUNTY, TEXAS
EYOB N TESEMA, §
Defendant(s) §
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Eyob N
Tesema, 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 055.
Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil
Procedure, which states that the judgment sought shall be rendered forthwith if the
summary judgment evidence shows that there is no genuine issue if material fact and the
moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v.
Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ).
BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1*] 2007, no pet.),
the court held that a valid contract was formed by evaluating the terms of the cardmember
agreement. The language in the agreement here and in Winchek is nearly identical in parts
relevant to the Court’s decision.
DISCOVER BANK V. MARIE LYNNE FERRER
4. Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14 Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14""] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id.
at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 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).
DISCOVER BANK V. MARIE LYNNE FERRER
7. Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14%] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. . We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Jd. at *14.
DISCOVER BANK V. MARIE LYNNE FERRER
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for
hearing and that after hearing the Court rule that there is “no genuine issue of material fact and
that the Plaintiff is entitled to judgment as a matter of Jaw” and that Plaintiff be granted summary
judgment against Defendant(s), Eyob N Tesema, for the following:
1 The principal damages amount claimed for in Plaintiffs Complaint of
$2,797.90 minus any payments received after filing this litigation, and
Post-judgment interest on said sums from the date of Judgment until paid at
5% which is the legal rate per annum under §304.004, TEX. FINANCE
CODE.
Costs of this proceeding in the amount of $445.96
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. Mreed
[ ] JOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] OLEN MANNING, ESQ.
State Bar Number 24118453
MELISSA REED
State bar number 24046695
DISCOVER BANK V. MARIE LYNNE FERRER
CERTIFICATE OF SERVICE
Thereby certify that on the 19 day of January, 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
M1 E-Service
[ ] Certified Mail
MICHAEL WESTON
177 WEST GRAY STREET
HOUSTON, TX 77019
LAWSUITS@WESTONLEGAL.COM
Mreed
[ ]JOHNETTA LANG, ESQ.
C] LEN MANNING, ESQ.
MELISSA REED
DISCOVER BANK V. MARIE LYNNE FERRER
NO, 22-CCV-071084
DISCOVER BANK, IN THE COUNTY COURT
Plaintiff
AT LAW NO 6
Vv.
FORT BEND COUNTY, TEXAS
EYOB N TESEMA,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff
Includes True and Correct Copy of Applicable Supporting Account Documents
Exhibit “B” Non-Military Status Verification
Attachments Include:
Official Printout from the United States Department of Defense-Manpower Data Center that
Defendant is Not an Active Member of the Armed Forces Currently on Duty
DISCOVER BANK V. EYOB N TESEMA
EXHIBIT “A”
Affidavit in Support of Judgment
DISCOVER BANK V. EYOB N TESEMA.
ACCOUNT NUMBER: XXXXXXXXXXX SE
BALANCE: $2,797.90
CARDMEMBER (S): EYOB N TESEMA
STATE OF OHIO
COUNTY OF FRANKLIN
Janice Dorr, personally appeared before me, on this day and after being duly swom, according to law, and
upon my oath and states as follows:
Iam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB
SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware
State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account
records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard
to payments owed on those accounts.
This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account
against the Cardmember(s). C
In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records
regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS
INC. maintains these records in the ordinary course of its business, and the records are updated with
information on events (such as charges and payments on the account) by individuals with personal knowledge
of those events or by automated processes that track such events at or near the time that the events occur. The
same systems that record this information also generate periodic statements that are sent to Discover
Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping
systems contain information about which version of Discover Bank’s terms and conditions has been
communicated to an account holder and accepted by an account holder through the use of his or her Discover
Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the
account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by
DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said
account and whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that
account statements were generated, such statements were either provided to the Cardmember(s)
electronically or mailed to the Cardmember(s) at the address maintained on file during that time period.
According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated
with the Cardmember(s) is/are:
ae
RICHMOND, TX 77407-3377
The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover
Bank on the account.
The business records maintained by DISCOVER PRODUCTS INC. and described above show that the
Cardmember(s)’ account with Discover Bank is governed by terms and conditions referred to as “terms level
27A.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS
INC.’s counsel in this case and is attached hereto as Exhibit A.
Exhibit B is a te and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to
ZWI_TESEMA_1401570_1.4 V1.4
the Cardmember(s), retrieved from the record-keeping system described above, and shows the amount that is
now due and owing Discover Bank on the account.
DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department
of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in
active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to
query this system with respect to any account holder prior to initiating a collection action against that account
holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the
results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of
my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of
the United States.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
pgp Atihe.
SUBSCRIBED TO AND SWORN TO before me this _JY day of _ ( lands 2022.
x
-
Mi ANGELA R STERLING
Notary Public, State of Ohlo
My Commission Expires
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ZWI_TESEMA_1401570_1.4 V14
CM.TL27AG.LIN.0719
DISC@VER CARDMEMBER AGREEMENT
Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
‘the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions, We have included a “Definitions” section for your reference on page 3.
ACCEPTANCE OF AGREEMENT
You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card, You also accept this Agreement if you or an Authorized User use the
Account, You may, however, reject the “Arbitration of Disputes” section as explained in that section,
CHANGES T0 YOUR AGREEMENT
The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement, If required by law, we will give you
advance written notice of the change(s) and a right to reject the change(s), We will not charge any fee or interest charge prohibited by law.
USING YOUR ACCOUNT
Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances, You may not use it for illegal transactions,
Authorized Users ‘You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized
User to use your Account, You are responsible for all charges made by your Authorized Users,
Joint Accounts if your Accounts a joint Account
«each of you agrees to be liable individually and jointly for the entire amount owed on the Account; and
* any notice we mail to an address provided by either of you for the Account will serve as notice to both of you,
Checks: If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay
any amount you owe us.
Credit Authorizations We may not authorize a transaction for security or other reasons. We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card,
Check or Account number.
Credit Lines ‘We will tell you what your Account credit fine is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your
balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice, We may delay increasing your available
paymentof the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days,
FEES (See your Pricing Schedule for Additional Fees)
Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will the Minimum Payment Due that was due immediately priorto the date on which
charge you a Late Fee. The fee is $28 if you were not charged a Late Fee during any the fee was assessed.
of the prior six billing periods. Otherwise, the fee is $39. This fee will never exceed
Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $39, This fee will never
charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on
fe-submit it. The fee is $28 if you were not charged a Returned Payment Fee during wihich the payment was returned
to us.
ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs, These APRs are determined by will take effect on the first day of the billing period that begins during the same
addingthe number of perceritage points that we specifyto the Prime Rate, Variable calendar month that the Prime Rate changes. An increase in the APR will increase
‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest cages and may increase: ‘your Minn Payment Due,
a
Penalty APR When It Applies
Each time that you do not pay the Minimum Payment Due by the Payment Due is
Date we may: oe
terminate any promotional APRs on new transactions; and We will Notify You
increase your APRs for new transactions to Penalty APRs. We will notify you of the date a Penalty APR will take effect, The Penalty APR will
‘We will not apply a Penalty APR to Cash Advances, only apply to new transactions with a Transaction Date mor than
14 days afterwe
How It Affects Your Account provide the notice to you.
To determinethe Penalty APR for a new transaction: We May Reduce It
© We add up to 5 additional percentage points to the otherwise applicable APR, ‘We will review your Account from time to time as required by law to determine if
© We set your Penalty APR based on your creditworthiness and other factors. These ‘any Penalty APR should be reduced,
factors include
your current APRs and Account history.
MAKING PAYMENTS
Payment Instructions: You must pay in U.S. dollars. Pleasedo not send cash. Sending cash is not © We can accept late payments, partial payments or payments marked
allowed. All checks must be drawn on funds on deposit in the U.S, “payment in full” or with any other restrictive endorsement without losing
You must pay us for all amounts due on your Account, This includes charges any of our rights under this Agreement,
made by Authorized Users, Ifa third party makes a payment on your Account and we retum all or a part of such
‘© We may refuse to accept a payment in a foreign currency. if we do accept it, we payment, then we may adjust your Account for any amount returned, We reserve the
will charge your Account our cost to convert it to U.S, dollars, rightto defend ourselves against any demand to return funds we have received, and
‘may agree toa compromise of the demanded amount as pat of a settlement,
ems Discover Bank, Member FDIC Ae
MAKING PAYMENTS
Payment Instructions + We credit your payments in accordance with the terms contained on your Ifyou mail your payment to an address other than the address designated on
billing statement, your billing statement, there may be a delay in processing and crediting the
payment to your Account.
Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any time, for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest
Each billing periodyou must pay at least the Minimum Payment Due by the Payment Charges; and Late Fees,
Due Date shown an your billing statement, The Minimum Payment Due will be any ‘The Minimum Payment Due may also include amounts by which you exceed
amount past due plus the greater of; ‘your Account cr line, However, it will never exceed the New Balance, When
© $35; or we calculate the Minimum Payment Due, we may subtract from the New Balance
+ 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period, The Minimum Payment
* $20, plus any of the following charges as shown on your billing statement: fees Due is rounded up to the nearest dollar,
How We Apply Payments ‘We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
required by applicable law, ‘APRsas of the date we credit your payment,
INTEREST CHARGES
How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily ‘© We make other adjustments (including those adjustments required in the “Paying
Charges—Daily Balance balance" for each Transaction Category. Transaction Categories include standard Interest” section),
Method {including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges
transactions) Balance Transfers. © We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period, This gives us the interest
© We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide
first day of the billing period is your balance on the last day of your previous biling ‘the APR that applies to the Transaction Category by 365.
period. * We add up all the daily interest charges. The sum is the total interest charge for
+» We add any interest
ma accrued on the previous day's daily balance and any
new transactions and fees. We add any new transactions or fees as of the
later of the Transaction Date or the first day of the billing period in which the
the billing period,
How We Include Fees
‘We add Balance Transfer Fees to the applicable Balance Transfer Transaction
transaction or fee posted to your Account, Category. We add Cash Advance Fees to the applicable Cash Advance Transaction
+ We subtract any new credits and payments, Category. We add all other fees to the standard Purchase Transaction Category.
Paying Interest When Interest Charges Begin Due Date shown on that billing statement, we will not impose interest charges on
We beginto impose interest charges on a transaction, fee or interest charge from the new Purchases, or any portion of a new Purchase, paid by the Payment Due Date
day we add it to the daily balance, We continue to impose interest charges until you onyour current billing statement, New Purchases ate Purchases that first appear on
pay the total amountyou owe us. You can avoid paying interest on Purchases as the current billing statement,
described below. However, you cannot avoid paying interest on Balance Transfers or How
We Apply Payments May Impact Your Grace Period
Cash Advances, {you do not pay your New Balance in full each month, then, depending on the balance
How to Avoid Paying Interest on Purchases ("Grace Period") ‘to which we apply your payment, you maynot get a grace period on new Purchases.
If you paid the New Balance on your previous billing statement by the Payment
OTHER IMPORTANT INFORMATION
Default You are in default if: * you fail to comply with the terms of this Agreement or any Agreement with us or
you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding
© we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction,
obligations to us; Ifyou arein default, we may declare the entire balance of your Account immediately
you die or are legally declared incompetentor incapacitated; due and payable without notice,
Collection Costs Ifwe use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection
costs, and fees and costs of any appeal.
Merchant Disputes If you have a dispute with a merchant, you may request a credit to your Account, If we resolve the dispute in your favor, we will issue a creditto your Account, You assign
‘to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing.
‘Automatic Account You may set up automatic billing or store your Account information with an Affiliate, merchant, wallet provider, or other third party ("Permitted Party”), If you do,
Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account. If
your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our
discretion, You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing
or Account updates,
Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. Contactus + howwe safeguard its confidentiality and security;
‘1 visit Discover.com if you would like a copy. Please read it carefully. It summarizes: ‘« when it may be shared with others; and
© the personal information we collect; © how you can limit our sharing of this information,
Credit Reporting Agency You authorize us to review your credit, employment, and income for the purpose of ‘that information we reported is inaccurate or incomplete, please write us at Discover,
Information ‘this Account, as well as to consider
you for other products and services, We may report P.O. Box 30939, Salt Lake City, UT, 84130-0939, Please include your name, address,
‘the status and payment history of your Account to credit reporting agencies and other ‘home phone number and Account number,
creditors, We normally report to credit reporting agencies each month. if you believe
2
OTHER IMPORTANT INFORMATION
Our Communications You agree that we, our Affiliates, and agents, including service providers (“Authorized phone number you provide. You agree that the Authorized Parties may contact you
with You Parties") may contact you, including calls, text message or email, about any current using an automatic dialer or pre-recorded voice message. If you no longer wish to be
or accounts or applications, with respect to all products you have with us contacted on yourcell phone by an automated dialer or pre-recorded voice message,
at any phone number or email (i) you have provided to us, (ii) from which you you must provide us written notice cancelling your consent at this address: Discover
contacted us, or (if) which we obtained and believe we can reach you at, even if Bank, P.O. Box 30937, Salt Lake City, UT 84130-0937, The written notice must include:
‘your phone provider may charge you message and data rates for calls or texts, You your name, mailing address, the last four digits of your Account number and the
agree that the Authorized Parties may record or monitorany calls between you and specific cell phone number(s) for which you would like to cancel your consent to be
‘the Authotized Parties, You agree to notify us if you change or discontinue using any contacted by an automated dialer or pre-recorded voice message.
Unauthorized Use ‘You must notify us immediately if:
* your Card is lost or stolen; or
* you believe someone is using your Account or a Card without your permission.
Cancellation of + You may cancel your Account. You will remain responsible for any amount you © We may cancel, suspend or not renew your Account
at any time without notice,
Your Account ‘owe us under this Agreement.
‘Any joint Account holder may cancel a joint Account. However, both of you will
remain responsible for paying all amounts owed,
Purchases and Cash Advances Ifyou make a Purchase or Cash Advance in a foreign currency, we will convert it to ‘the country and currency in which the transaction is made, We use the rate in effect
in Foreign Currencies U.S, dollars using a rate we choose, This rate will either be a government-mandated ‘on the conversion date for the transaction, This rate may be different than the rate
rate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction,
Governing Law ‘This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the
statute of limitations of the state where the lawsuit is filed will apply, without regard to that state's conflicts of laws principles or its “borrowing statute.”
Severability Except as set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect,
Enforcing this Agreement We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving any of them.
Assignment of Account ‘We may sell, assign or transfer your Account or any portion of it without notice to you, You may not sell, assign or transfer your Account without first obtaining our prior
written consent,
CONTACT US
Unless we tell you otherwise, you can notify us: » by phone at 1-800 DISCOVER (1-800-347-2683) or # in writing to Discover, P.0. Box 30943, Salt Lake City, UT 84130-0943,
When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your e-mail address, mailing address or phone number.
DEFINITIONS
“Account” means your Discover card account, “Check” means any check we send to you to access your Account.
“Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule“, which lists the APRs that
“Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information,
notify us ornot “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
“Balance Transfer” means a balance transferred from another creditor to your Account section of The Wall Street Jounalon the last business day of the month,
“Card” means any one or more Discover cards issuedto you or someone else with your authorization, “Purchase” means the use of your Account to purchase or lease goods or services at
“Cash Advance” means the use of your Account for: participating merchants,
© obtaining cash from participating automated teller machines, financial institutions
or other "We," “us” and “our” referto Discover Bank, the issuer of your Card,
locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually fable
* online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or under this Agreement,
similar items. “Transaction Date” means the date shown on your billing statement
for a transaction or fee.
ARBITRATION
Agreement to Arbitrate. In the event of a dispute between you CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN an arbitrator, shall determine the validity, scope, and effect of the
and us arising out of or relating to this Account or the relationships INDIVIDUAL BASIS, THIS MEANS NEITHER YOU NOR WE MAY Class Action Waiver.
resulting from this Account or any other dispute between you or JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST Your Right to Go To Small Claims Court, We will not choose to
us ("Claim"), either you or we may choose to resolve the Claim by OTHER CARDMEMBERS, OR LITIGATE IN COURT OR ARBITRATE arbitrate any individual claim you bring in small claims court or your
binding arbitration, as described below, instead of in court. Any ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR state's equivalent court. However, if such a claim is transferred,
Claim (except for a claim challenging the validity or enforceability IN A PRIVATE ATTORNEY GENERAL CAPACITY, removed or appealed to a different court, we may then choose to
of this arbitration agreement, including the Class Action Waiver) The arbitrator may award injunctive relief only in favor of the atbitrate.
may be resolved by binding arbitration if either side requests it. individual party seeking relief and only to the extent necessary Governing Lawand Rules. This arbitration agreementis governed
THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, to provide relief warranted by that party's individual claim. The by the Federal Arbitration Act (FAA), Arbitration must proceed only
NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH arbitrator may not award class, representative or public injunctive with the American Arbitration Association (AAA) or JAMS. The
CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO DISCOVERY relief, If a court decides that applicable law precludes enforcement ules for the arbitration will be those in this arbitration agreement
AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION, of any of this paragraph’s limitations as to a particular claim and the procedures of the chosen arbitration organization, but
Even if all parties have opted to litigate a Claim in court, you or for relief, then after all appeals from that decision have been the rules in this arbitration agreement will be followed if there
we may elect arbitration with respect to any Claim made by a new exhausted, that claim (and only that claim) must be severed from is disagreement between the agreement and the organization's
party or any new Claims later asserted in that lawsuit. ‘the arbitration and may be brought in court, Only a court, and not procedures the organization's procedures change after the claim
3.
ARBITRATION
is filed, the procedures in effect when the claim was filed will apply. © Issue a written decision including the reasons for the award. Other Beneficiaries of this Provision. In addition to you and
For a copy of each organization's procedures, to file a claim or for ‘The arbitrator's decision will be final and binding except for any us, the rights and duties described in this arbitration agreement
other information, please contact: review allowed by the FAA, However, if more than $100,000 was apply to: our Affiliates and our and their officers, directors and
‘© AAA at 1101 Laurel Oak Rd, Voorhees, NJ 08043, www.adr.org genuinely in dispute, then either you or we may choose to appeal to employees; any third party co-defendant of a claim subjectto this
(phone 1-877-495-4185) of anew panel of three arbitrators, The appellate panel is completely arbitration provision; and all joint Accountholders and Authorized
free to accept or reject the entire original award or any part of it. Users of your Accountis),
JAMS at 620 Eighth Ave., Floor 34, New York, NY 10018,
www jamsadr.com (phone 1-800-352-5267), The appeal must be filed with the arbitration organization not later Survival of this Provision. This arbitration provision shall survive:
‘than 30 days after the original award issues. The appealing party + closing of your Account;
If both AAA and JAMS are completely unavailable, and if you and pays all appellate costs unless the appellate panel determines
‘we cannot agree ona substitute, then either you or we may request +» voluntary payment of your Account or any part of it;
otherwise as part of its award, any legal proceedingsto collect money you owe;
that a court with jurisdiction appoint a substitute.
Claim Notice and Special Payment. If you have a Claim, before any bankruptcy by you; and
Fees and Costs. If you wish to begin arbitration against us but initiating an arbitration proceeding, you may give us written notice
you cannot afford to pay the organization's or arbitrator's costs, » any sale by us of your Account.
will advance those costs if you ask us in writing, Any request like of the Claim ("Claim Notice") at least 30 days before initiatingthe
arbitration proceeding, The Claim Notice must include your name, You Have the Right to Reject Arbitration for this Account.
this should be sent to Discover, P.0. Box 30421, Salt Lake City, UT You may reject the arbitration agreement but only if we
84130-0421. H you lose the arbitration, the arbitrator will decide address, and account number and explain in reasonable detail the
nature of the Claim and any supporting facts. Any Claim Notice shall receive from you a written notice of rejection within 30 days
whether you must reimburse us for money we advanced for you
Preview
NO. 22-CCV-071084 DISCOVER BANK, § IN THE COUNTY COURT Plaintiff § § AT LAW NO6 Vv. § FORT BEND COUNTY, TEXAS EYOB N TESEMA, § Defendant(s) § PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Eyob N Tesema, 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 055. Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil Procedure, which states that the judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue if material fact and the moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v. Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ). BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1*] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. DISCOVER BANK V. MARIE LYNNE FERRER 4. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14 Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14""] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id. at 202 (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 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). DISCOVER BANK V. MARIE LYNNE FERRER 7. Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14%] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . . We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Jd. at *14. DISCOVER BANK V. MARIE LYNNE FERRER 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of Jaw” and that Plaintiff be granted summary judgment against Defendant(s), Eyob N Tesema, for the following: 1 The principal damages amount claimed for in Plaintiffs Complaint of $2,797.90 minus any payments received after filing this litigation, and Post-judgment interest on said sums from the date of Judgment until paid at 5% which is the legal rate per annum under §304.004, TEX. FINANCE CODE. Costs of this proceeding in the amount of $445.96 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. Mreed [ ] JOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] OLEN MANNING, ESQ. State Bar Number 24118453 MELISSA REED State bar number 24046695 DISCOVER BANK V. MARIE LYNNE FERRER CERTIFICATE OF SERVICE Thereby certify that on the 19 day of January, 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 M1 E-Service [ ] Certified Mail MICHAEL WESTON 177 WEST GRAY STREET HOUSTON, TX 77019 LAWSUITS@WESTONLEGAL.COM Mreed [ ]JOHNETTA LANG, ESQ. C] LEN MANNING, ESQ. MELISSA REED DISCOVER BANK V. MARIE LYNNE FERRER NO, 22-CCV-071084 DISCOVER BANK, IN THE COUNTY COURT Plaintiff AT LAW NO 6 Vv. FORT BEND COUNTY, TEXAS EYOB N TESEMA, Defendant(s) EXHIBIT LIST FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff Includes True and Correct Copy of Applicable Supporting Account Documents Exhibit “B” Non-Military Status Verification Attachments Include: Official Printout from the United States Department of Defense-Manpower Data Center that Defendant is Not an Active Member of the Armed Forces Currently on Duty DISCOVER BANK V. EYOB N TESEMA EXHIBIT “A” Affidavit in Support of Judgment DISCOVER BANK V. EYOB N TESEMA. ACCOUNT NUMBER: XXXXXXXXXXX SE BALANCE: $2,797.90 CARDMEMBER (S): EYOB N TESEMA STATE OF OHIO COUNTY OF FRANKLIN Janice Dorr, personally appeared before me, on this day and after being duly swom, according to law, and upon my oath and states as follows: Iam a Litigation Support Coordinator for DISCOVER PRODUCTS INC., successor by merger to DB SERVICING CORPORATION, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER PRODUCTS INC. is responsible for, among other things, maintaining account records pertaining to Discover Card accounts and interacting with Discover Card account holders with regard to payments owed on those accounts. This affidavit is made on the basis of my personal knowledge and in support of the Plaintiff's suit on account against the Cardmember(s). C In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records regarding the Discover Card account of the above referenced Cardmember(s). DISCOVER PRODUCTS INC. maintains these records in the ordinary course of its business, and the records are updated with information on events (such as charges and payments on the account) by individuals with personal knowledge of those events or by automated processes that track such events at or near the time that the events occur. The same systems that record this information also generate periodic statements that are sent to Discover Cardmember(s), and store copies of these periodic statements. In addition, these same record-keeping systems contain information about which version of Discover Bank’s terms and conditions has been communicated to an account holder and accepted by an account holder through the use of his or her Discover Card after receipt of the terms and conditions. I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmember(s) have made payments on that balance. According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that account statements were generated, such statements were either provided to the Cardmember(s) electronically or mailed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is/are: ae RICHMOND, TX 77407-3377 The account is in default because the Cardmember(s) have not paid the amounts due and owing to Discover Bank on the account. The business records maintained by DISCOVER PRODUCTS INC. and described above show that the Cardmember(s)’ account with Discover Bank is governed by terms and conditions referred to as “terms level 27A.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached hereto as Exhibit A. Exhibit B is a te and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to ZWI_TESEMA_1401570_1.4 V1.4 the Cardmember(s), retrieved from the record-keeping system described above, and shows the amount that is now due and owing Discover Bank on the account. DISCOVER PRODUCTS INC. has access to a system of records maintained by the United States Department of Defense, which allows DISCOVER PRODUCTS INC. to ascertain whether a particular person is engaged in active duty in any branch of the U.S. military. It is the regular practice of DISCOVER PRODUCTS INC. to query this system with respect to any account holder prior to initiating a collection action against that account holder. DISCOVER PRODUCTS INC. maintains records in the normal course of its business that indicate the results of that query. Based on my review of the account records applicable to Cardmember(s), to the best of my knowledge and belief the above referenced Cardmember(s) is not engaged in any of the military services of the United States. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. pgp Atihe. SUBSCRIBED TO AND SWORN TO before me this _JY day of _ ( lands 2022. x - Mi ANGELA R STERLING Notary Public, State of Ohlo My Commission Expires " aig ge oS ZWI_TESEMA_1401570_1.4 V14 CM.TL27AG.LIN.0719 DISC@VER CARDMEMBER AGREEMENT Thank you for choosing Discover® card. This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including ‘the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions, We have included a “Definitions” section for your reference on page 3. ACCEPTANCE OF AGREEMENT You accept this Agreement if you do not cancel your Account within 30 days after receiving a Card, You also accept this Agreement if you or an Authorized User use the Account, You may, however, reject the “Arbitration of Disputes” section as explained in that section, CHANGES T0 YOUR AGREEMENT The rates, fees and terms of this Agreement may change from time to time. We may add or delete any term to this Agreement, If required by law, we will give you advance written notice of the change(s) and a right to reject the change(s), We will not charge any fee or interest charge prohibited by law. USING YOUR ACCOUNT Permitted Uses You may use your Account for Purchases, Balance Transfers and Cash Advances, You may not use it for illegal transactions, Authorized Users ‘You may request additional Cards for Authorized Users to make transactions on your Account, You must notify us if you wish to cancel the authority of an Authorized User to use your Account, You are responsible for all charges made by your Authorized Users, Joint Accounts if your Accounts a joint Account «each of you agrees to be liable individually and jointly for the entire amount owed on the Account; and * any notice we mail to an address provided by either of you for the Account will serve as notice to both of you, Checks: If we provide you with Checks, we will tell you whether we will treat the Check as a Purchase, Balance Transfer or Cash Advance. You may not use these Checks to pay any amount you owe us. Credit Authorizations We may not authorize a transaction for security or other reasons. We will not be liable to you if we decline to authorize a transaction or if anyone refuses your Card, Check or Account number. Credit Lines ‘We will tell you what your Account credit fine is. You must keep your Account for Cash Advances. We may increase or decrease your Account credit line or your balance below your Account credit line, If you do not, we may request immediate Cash Advance credit line without notice, We may delay increasing your available paymentof the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment that we receive for up to 10 business days, FEES (See your Pricing Schedule for Additional Fees) Late Fee If you do not pay the Minimum Payment Due by the Payment Due Date, we will the Minimum Payment Due that was due immediately priorto the date on which charge you a Late Fee. The fee is $28 if you were not charged a Late Fee during any the fee was assessed. of the prior six billing periods. Otherwise, the fee is $39. This fee will never exceed Returned Payment Fee If you make a payment that is not honored by your financial institution, we will any of the prior six billing periods. Otherwise, the fee is $39, This fee will never charge you a Returned Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior to the date on fe-submit it. The fee is $28 if you were not charged a Returned Payment Fee during wihich the payment was returned to us. ANNUAL PERCENTAGE RATES ("APRs") (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs, These APRs are determined by will take effect on the first day of the billing period that begins during the same addingthe number of perceritage points that we specifyto the Prime Rate, Variable calendar month that the Prime Rate changes. An increase in the APR will increase ‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest cages and may increase: ‘your Minn Payment Due, a Penalty APR When It Applies Each time that you do not pay the Minimum Payment Due by the Payment Due is Date we may: oe terminate any promotional APRs on new transactions; and We will Notify You increase your APRs for new transactions to Penalty APRs. We will notify you of the date a Penalty APR will take effect, The Penalty APR will ‘We will not apply a Penalty APR to Cash Advances, only apply to new transactions with a Transaction Date mor than 14 days afterwe How It Affects Your Account provide the notice to you. To determinethe Penalty APR for a new transaction: We May Reduce It © We add up to 5 additional percentage points to the otherwise applicable APR, ‘We will review your Account from time to time as required by law to determine if © We set your Penalty APR based on your creditworthiness and other factors. These ‘any Penalty APR should be reduced, factors include your current APRs and Account history. MAKING PAYMENTS Payment Instructions: You must pay in U.S. dollars. Pleasedo not send cash. Sending cash is not © We can accept late payments, partial payments or payments marked allowed. All checks must be drawn on funds on deposit in the U.S, “payment in full” or with any other restrictive endorsement without losing You must pay us for all amounts due on your Account, This includes charges any of our rights under this Agreement, made by Authorized Users, Ifa third party makes a payment on your Account and we retum all or a part of such ‘© We may refuse to accept a payment in a foreign currency. if we do accept it, we payment, then we may adjust your Account for any amount returned, We reserve the will charge your Account our cost to convert it to U.S, dollars, rightto defend ourselves against any demand to return funds we have received, and ‘may agree toa compromise of the demanded amount as pat of a settlement, ems Discover Bank, Member FDIC Ae MAKING PAYMENTS Payment Instructions + We credit your payments in accordance with the terms contained on your Ifyou mail your payment to an address other than the address designated on billing statement, your billing statement, there may be a delay in processing and crediting the payment to your Account. Minimum Payment Due You may pay the entire New Balance shown on your billing statement at any time, for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest Each billing periodyou must pay at least the Minimum Payment Due by the Payment Charges; and Late Fees, Due Date shown an your billing statement, The Minimum Payment Due will be any ‘The Minimum Payment Due may also include amounts by which you exceed amount past due plus the greater of; ‘your Account cr line, However, it will never exceed the New Balance, When © $35; or we calculate the Minimum Payment Due, we may subtract from the New Balance + 2% of the New Balance shown on your billing statement; or certain fees added to your Account during the billing period, The Minimum Payment * $20, plus any of the following charges as shown on your billing statement: fees Due is rounded up to the nearest dollar, How We Apply Payments ‘We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower required by applicable law, ‘APRsas of the date we credit your payment, INTEREST CHARGES How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily ‘© We make other adjustments (including those adjustments required in the “Paying Charges—Daily Balance balance" for each Transaction Category. Transaction Categories include standard Interest” section), Method {including current Purchases, standard Cash Advances and different promotional balances, such as How We Figure Your Total Interest Charges transactions) Balance Transfers. © We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period, This gives us the interest © We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide first day of the billing period is your balance on the last day of your previous biling ‘the APR that applies to the Transaction Category by 365. period. * We add up all the daily interest charges. The sum is the total interest charge for +» We add any interest ma accrued on the previous day's daily balance and any new transactions and fees. We add any new transactions or fees as of the later of the Transaction Date or the first day of the billing period in which the the billing period, How We Include Fees ‘We add Balance Transfer Fees to the applicable Balance Transfer Transaction transaction or fee posted to your Account, Category. We add Cash Advance Fees to the applicable Cash Advance Transaction + We subtract any new credits and payments, Category. We add all other fees to the standard Purchase Transaction Category. Paying Interest When Interest Charges Begin Due Date shown on that billing statement, we will not impose interest charges on We beginto impose interest charges on a transaction, fee or interest charge from the new Purchases, or any portion of a new Purchase, paid by the Payment Due Date day we add it to the daily balance, We continue to impose interest charges until you onyour current billing statement, New Purchases ate Purchases that first appear on pay the total amountyou owe us. You can avoid paying interest on Purchases as the current billing statement, described below. However, you cannot avoid paying interest on Balance Transfers or How We Apply Payments May Impact Your Grace Period Cash Advances, {you do not pay your New Balance in full each month, then, depending on the balance How to Avoid Paying Interest on Purchases ("Grace Period") ‘to which we apply your payment, you maynot get a grace period on new Purchases. If you paid the New Balance on your previous billing statement by the Payment OTHER IMPORTANT INFORMATION Default You are in default if: * you fail to comply with the terms of this Agreement or any Agreement with us or you file bankruptcy or another insolvency proceeding is filed by you or against you; an Affiliate, including failing to make a required payment when due, exceeding © we have a reasonable belief that you are unable or unwilling to repay your your Account credit line or using your Card or Account for an illegal transaction, obligations to us; Ifyou arein default, we may declare the entire balance of your Account immediately you die or are legally declared incompetentor incapacitated; due and payable without notice, Collection Costs Ifwe use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal. Merchant Disputes If you have a dispute with a merchant, you may request a credit to your Account, If we resolve the dispute in your favor, we will issue a creditto your Account, You assign ‘to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing. ‘Automatic Account You may set up automatic billing or store your Account information with an Affiliate, merchant, wallet provider, or other third party ("Permitted Party”), If you do, Information Updates you authorize us to share your Account information, which may include your rewards account balance, with the Permitted Party, regarding the use of your Account. If your Account information changes, which may include your billing address, you authorize us to provide this updated information to any such Permitted Party at our discretion, You must contact the Permitted Party directly or remove your credit card information from the Permitted Party website if you wish to stop automatic billing or Account updates, Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. Contactus + howwe safeguard its confidentiality and security; ‘1 visit Discover.com if you would like a copy. Please read it carefully. It summarizes: ‘« when it may be shared with others; and © the personal information we collect; © how you can limit our sharing of this information, Credit Reporting Agency You authorize us to review your credit, employment, and income for the purpose of ‘that information we reported is inaccurate or incomplete, please write us at Discover, Information ‘this Account, as well as to consider you for other products and services, We may report P.O. Box 30939, Salt Lake City, UT, 84130-0939, Please include your name, address, ‘the status and payment history of your Account to credit reporting agencies and other ‘home phone number and Account number, creditors, We normally report to credit reporting agencies each month. if you believe 2 OTHER IMPORTANT INFORMATION Our Communications You agree that we, our Affiliates, and agents, including service providers (“Authorized phone number you provide. You agree that the Authorized Parties may contact you with You Parties") may contact you, including calls, text message or email, about any current using an automatic dialer or pre-recorded voice message. If you no longer wish to be or accounts or applications, with respect to all products you have with us contacted on yourcell phone by an automated dialer or pre-recorded voice message, at any phone number or email (i) you have provided to us, (ii) from which you you must provide us written notice cancelling your consent at this address: Discover contacted us, or (if) which we obtained and believe we can reach you at, even if Bank, P.O. Box 30937, Salt Lake City, UT 84130-0937, The written notice must include: ‘your phone provider may charge you message and data rates for calls or texts, You your name, mailing address, the last four digits of your Account number and the agree that the Authorized Parties may record or monitorany calls between you and specific cell phone number(s) for which you would like to cancel your consent to be ‘the Authotized Parties, You agree to notify us if you change or discontinue using any contacted by an automated dialer or pre-recorded voice message. Unauthorized Use ‘You must notify us immediately if: * your Card is lost or stolen; or * you believe someone is using your Account or a Card without your permission. Cancellation of + You may cancel your Account. You will remain responsible for any amount you © We may cancel, suspend or not renew your Account at any time without notice, Your Account ‘owe us under this Agreement. ‘Any joint Account holder may cancel a joint Account. However, both of you will remain responsible for paying all amounts owed, Purchases and Cash Advances Ifyou make a Purchase or Cash Advance in a foreign currency, we will convert it to ‘the country and currency in which the transaction is made, We use the rate in effect in Foreign Currencies U.S, dollars using a rate we choose, This rate will either be a government-mandated ‘on the conversion date for the transaction, This rate may be different than the rate rate, a government-published rate or the interbank exchange rate, depending on in effect on the Transaction Date for the transaction, Governing Law ‘This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regard to that state's conflicts of laws principles or its “borrowing statute.” Severability Except as set forth in the “Arbitration” section, if any part of this Agreement is found to be invalid, the rest of it will still remain in effect, Enforcing this Agreement We may delay enforcing or not enforce any of our rights under this Agreement without losing or waiving any of them. Assignment of Account ‘We may sell, assign or transfer your Account or any portion of it without notice to you, You may not sell, assign or transfer your Account without first obtaining our prior written consent, CONTACT US Unless we tell you otherwise, you can notify us: » by phone at 1-800 DISCOVER (1-800-347-2683) or # in writing to Discover, P.0. Box 30943, Salt Lake City, UT 84130-0943, When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your e-mail address, mailing address or phone number. DEFINITIONS “Account” means your Discover card account, “Check” means any check we send to you to access your Account. “Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule“, which lists the APRs that “Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information, notify us ornot “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates “Balance Transfer” means a balance transferred from another creditor to your Account section of The Wall Street Jounalon the last business day of the month, “Card” means any one or more Discover cards issuedto you or someone else with your authorization, “Purchase” means the use of your Account to purchase or lease goods or services at “Cash Advance” means the use of your Account for: participating merchants, © obtaining cash from participating automated teller machines, financial institutions or other "We," “us” and “our” referto Discover Bank, the issuer of your Card, locations; and “You,” “your” or “yours” refer to you and any other person(s) who are also contractually fable * online gambling, or to purchase lottery tickets, money orders, casino chips, foreign currency or under this Agreement, similar items. “Transaction Date” means the date shown on your billing statement for a transaction or fee. ARBITRATION Agreement to Arbitrate. In the event of a dispute between you CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN an arbitrator, shall determine the validity, scope, and effect of the and us arising out of or relating to this Account or the relationships INDIVIDUAL BASIS, THIS MEANS NEITHER YOU NOR WE MAY Class Action Waiver. resulting from this Account or any other dispute between you or JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST Your Right to Go To Small Claims Court, We will not choose to us ("Claim"), either you or we may choose to resolve the Claim by OTHER CARDMEMBERS, OR LITIGATE IN COURT OR ARBITRATE arbitrate any individual claim you bring in small claims court or your binding arbitration, as described below, instead of in court. Any ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR state's equivalent court. However, if such a claim is transferred, Claim (except for a claim challenging the validity or enforceability IN A PRIVATE ATTORNEY GENERAL CAPACITY, removed or appealed to a different court, we may then choose to of this arbitration agreement, including the Class Action Waiver) The arbitrator may award injunctive relief only in favor of the atbitrate. may be resolved by binding arbitration if either side requests it. individual party seeking relief and only to the extent necessary Governing Lawand Rules. This arbitration agreementis governed THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, to provide relief warranted by that party's individual claim. The by the Federal Arbitration Act (FAA), Arbitration must proceed only NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH arbitrator may not award class, representative or public injunctive with the American Arbitration Association (AAA) or JAMS. The CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO DISCOVERY relief, If a court decides that applicable law precludes enforcement ules for the arbitration will be those in this arbitration agreement AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION, of any of this paragraph’s limitations as to a particular claim and the procedures of the chosen arbitration organization, but Even if all parties have opted to litigate a Claim in court, you or for relief, then after all appeals from that decision have been the rules in this arbitration agreement will be followed if there we may elect arbitration with respect to any Claim made by a new exhausted, that claim (and only that claim) must be severed from is disagreement between the agreement and the organization's party or any new Claims later asserted in that lawsuit. ‘the arbitration and may be brought in court, Only a court, and not procedures the organization's procedures change after the claim 3. ARBITRATION is filed, the procedures in effect when the claim was filed will apply. © Issue a written decision including the reasons for the award. Other Beneficiaries of this Provision. In addition to you and For a copy of each organization's procedures, to file a claim or for ‘The arbitrator's decision will be final and binding except for any us, the rights and duties described in this arbitration agreement other information, please contact: review allowed by the FAA, However, if more than $100,000 was apply to: our Affiliates and our and their officers, directors and ‘© AAA at 1101 Laurel Oak Rd, Voorhees, NJ 08043, www.adr.org genuinely in dispute, then either you or we may choose to appeal to employees; any third party co-defendant of a claim subjectto this (phone 1-877-495-4185) of anew panel of three arbitrators, The appellate panel is completely arbitration provision; and all joint Accountholders and Authorized free to accept or reject the entire original award or any part of it. Users of your Accountis), JAMS at 620 Eighth Ave., Floor 34, New York, NY 10018, www jamsadr.com (phone 1-800-352-5267), The appeal must be filed with the arbitration organization not later Survival of this Provision. This arbitration provision shall survive: ‘than 30 days after the original award issues. The appealing party + closing of your Account; If both AAA and JAMS are completely unavailable, and if you and pays all appellate costs unless the appellate panel determines ‘we cannot agree ona substitute, then either you or we may request +» voluntary payment of your Account or any part of it; otherwise as part of its award, any legal proceedingsto collect money you owe; that a court with jurisdiction appoint a substitute. Claim Notice and Special Payment. If you have a Claim, before any bankruptcy by you; and Fees and Costs. If you wish to begin arbitration against us but initiating an arbitration proceeding, you may give us written notice you cannot afford to pay the organization's or arbitrator's costs, » any sale by us of your Account. will advance those costs if you ask us in writing, Any request like of the Claim ("Claim Notice") at least 30 days before initiatingthe arbitration proceeding, The Claim Notice must include your name, You Have the Right to Reject Arbitration for this Account. this should be sent to Discover, P.0. Box 30421, Salt Lake City, UT You may reject the arbitration agreement but only if we 84130-0421. H you lose the arbitration, the arbitrator will decide address, and account number and explain in reasonable detail the nature of the Claim and any supporting facts. Any Claim Notice shall receive from you a written notice of rejection within 30 days whether you must reimburse us for money we advanced for you