Preview
NO. 22-05-06545
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
AT LAW NO. 6
Vv.
MONTGOMERY COUNTY, TEXAS
SYLVIA A MIZE AND BOBBY W MIZE
AND BOBBY W MIZE,
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), Sylvia A
Mize And Bobby W Mize AND BOBBY W MIZE, 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 146.
Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil
Procedure, which states that the judgment sought shall be rendered forthwith if the
summary judgment evidence shows that there is no genuine issue if material fact and the
moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v.
Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ).
BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1*] 2007, no pet.),
the court held that a valid contract was formed by evaluating the terms of the cardmember
agreement. The language in the agreement here and in Winchek is nearly identical in parts
relevant to the Court’s decision.
4. Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.), The agreement in the Winchek case and the agreement in the instant case contain
similar language that “use of [the credit card] means you accept this Agreement.” See
cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek
court articulated the well-established elements for a claim of breach of contract: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id.
at 202 (citing Prime Products, Inc. v. S.SJI. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.
2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. In other words, when Parties
manifest an intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No.
01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1*] Mar. 20,
2008) (citations omitted).
7. Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that each
statement reflected the total amounts due and owing by the defendant. Thus, the court
concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232
S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14""] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue of
whether sufficient evidence existed regarding the balance owed. The court’s analysis was
as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly billed
. .. We recognize [the creditor] did not present . . . evidence [of]
every monthly statement since inception of the account; rather, it
attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the cardmember
agreement in this case requiring the cardholder to object in writing within sixty days after
the statement is issued to indicate any erroneous charges. The Sikander court determined
this provision of the agreement combined with the fact that the Defendant received monthly
statements as a sufficient basis to determine she was bound to pay the total amount due
even though every statement detailing every charge was not produced. Id. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for
hearing and that after hearing the Court rule that there is “no genuine issue of material fact and
that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Sylvia A Mize And Bobby W Mize AND BOBBY W MIZE, for
the following:
The principal damages amount claimed for in Plaintiff's Complaint of
$2,479.95 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 $530.43
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: Lg
[ ] JOHNETTALANG, ESQ.
State Bar Number 24036943
[ ] OLEN MANNING, ESQ.
State Bar Number 24118453
[ ] MELISSA REED
State bar number 24046695
[ ] JASMINE LEWIS, ESQ.
STATE BAR NUMBER 24104830
X Mirza Baig, ESQ
State Bar Number 24126948
CERTIFICATE OF SERVICE
Thereby certify that on the (Praay 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
[v] First-Class Mail
opa2 1b70 O01 7462 2009
[ ] E-Service
[V] Certified Mail
SYLVIA A MIZE
705 TALLOW DR
CONROE, TX 77385
BOBBY W MIZE
705 TALLOW DR
CONROE, TX 77385
WB ace
[ ] JOHNETTA“LANG, ESQ.
[ ] OLEN MANNING, ESQ.
[ ] MELISSA REED, ESQ.
[ ] JASMINE LEWIS, ESQ.
X Mirza Baig, ESQ
NO. 22-05-06545
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
§ AT LAW NO. 6
v.
MONTGOMERY COUNTY, TEXAS
SYLVIA A MIZE AND BOBBY W MIZE
AND BOBBY W MIZE,
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
EXHIBIT “A”
Affidavit in Support of Judgment
NO. 22-05-06545
DISCOVER BANK, IN THE COUNTY COURT
Plaintiff
v AT LAW NO 6
SYLVIA A MIZE,
Defendant(s) MONTGOMERY COUNTY, TEXAS
NOTICE OF BUSINESS RECORDS AND PLAINTIFF’S EXHIBITS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Discover Bank (“Plaintiff”) and notifies parties that business records with
an affidavit of a duly authorized custodian of records will be offered into evidence at trial and is
attached hereto.
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:
[ X ] JOHNETTA LANG, ESQ.
STATE BAR NUMBER 24036943
[ ] TREVON WATSON
STATE BAR NUMBER 24125451
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of October, 2022, this office served a true and
correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil
Procedure as follows: [ X ] First-Class Mail [ ] E-Service [ ] Certified Mail
SYLVIA A MIZE, PRO SE DEFENDANT
705 TALLOW DR
CONROE, TX 77385
BY: Hey
[X ] JOHNETTA LANG, ESQ.
STATE BAR NUMBER 24036943
[ ] TREVON WATSON
STATE BAR NUMBER 24125451
STATE OF OHIO
COUNTY OF FRANKLIN
ATTORNEY: Zwicker & Associates P.C.
ACCOUNT NUMBER: XXXXXXXXXXXXX146
BALANCE: $ 2,479.95
CARDMEMBER (S): SYLVIA A MIZE
BOBBY W MIZE
jenni pI!
according to law, anf/y
eMar) personally appeared before me, on this day and after being duly sworn,
my oath, state as follows:
“My name is Man I am a Litigation Support Coordinator for DISCOVER
PRODUCTS ‘5 Successor merger to DB Servicing Corporation, the servicing affiliate of
DISCOVER BANK, an FDIC insured Delaware State Bank (hereinafter referred to as “DISCOVER.
PRODUCTS INC.”) and am familiar with the manner in which its records are created and maintained by
virtue of my duties and responsibilities. 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.
In my capacity as a Litigation Support Coordinator, 1 have knowledge regarding, and access to, records
regarding the Discover Card Account of the above-referenced Cardmember(s), the Defendant(s) in this
action and referred to herein as the Debtor(s). Attached hereto are 180 pages of records from
XXXXXXXXXXXXX146, These said 180 pages of records are kept by DISCOVER PRODUCTS INC.
in the regular course of 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 or reasonably soon thereafter. The
records were kept in the course of regularly conducted business activity and it is the regular practice of the
business activity to make the records. The documents attached are true and accurate records of the account.
The same systems that record this information also generate periodic statements that are sent to Account
holders, such as Debtor(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 a cardholder and accepted by a cardholder through the cardholder’s 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 Debtor(s), including the last periodic statement sent to the Debtor(s) by
DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said
account and whether the Debtor(s) have made payments on that balance.
The account is in default because the Debtor(s) has/have not paid the amounts due and owing to Discover
Bank on the account. The current balance due and owing on the account is $2,479.95.
The business records maintained by DISCOVER PRODUCTS INC. and described above show that the
Debtor(s)’ account with Discover Bank is governed by terms and conditions referred to by Discover Bank
and DISCOVER PRODUCTS INC. as “terms level 25J.” A true and correct copy of these terms and
conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached
hereto as Exhibit A.
Exhibit B includes true and accurate copies of the account records retrieved from the record-keeping
system described above.
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, and 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 Debtor(s), the above-referenced Debtor(s) is not engaged in any of the
military services of the United States.
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:
705 TALLOW DR
CONROE, TX 77385
I declare under penalty of perjury that the foregoing is true and correct.
A [Mogens
Affiant
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SUBSCRIBED TO AND SWORN TO before me this‘ day of {] MY) 2022.
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HEATHER MARIE HYSELL
NOTARY PUBLIC - OHIO
MY COMMISSION EXPIRES
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DISC@VER CARDMEMBER AGREEMENT
Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
the Pricing Schedule, carefully. Keep them for your records. Contact us if you have any questions. We have included a “Definitions” section for your reference on page 3.
ACCEPTANCE OF AGREEMENT
You accept this Agreement if you do not cancel your Account within 30 days after receiving @ 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. You must notify us if you wish to cancel the authority of an Authorized User to use your Account.
Joint Accounts If your Account is 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 line is. You must Keep your Account for Cash Advances. We may increase or decrease your Account credit line or your
balance below your Account credit line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available
payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment thatwe 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 prior to the date on which
charge you a Late Fee. The fee is $27 if you were not charged a Late Fee during any the fee was assessed.
of the prior six billing periods, Otherwise, the fee is $37. 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 $37, 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 priorto the date on
re-submitit. The feeis $27 if you were not charged a Returned Payment Fee during which the payment was returned to us.
ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same
adding the number of percentage points that we specify to the Prime Rate. Variable calendar month that the Prime Rate changes. An increase in the APR will increase
‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due,
Penalty APR When It Applies effect for the billing period in which you did not pay the Minimum Payment
Each time that you do not pay the Minimum Payment Due by the Payment Due Due by the Payment Due Date
Date we may: i psc
* terminate any promotional APRs on new transactions; and
iy a
« increase your APRs for new transactions to Penalty APRs.
We will not apply a Penalty APR to Cash Advances. coeial i 9 SEEN Deus
We Will Notify You
How It Affects Your Account We will notifyyou ofthe date a Penalty APR will take effect. The Penalty APR will
‘To determine the variable Penalty APR for a new transaction: only apply to new transactions with a Transaction Date more than 14 days afterwe
» We add up to 5 additional percentage points to the otherwise applicable APR. provide the notice to you.
+ We set your Penalty APR based on your creditworthiness and other factors. These We May Reduce It
factors include
your current APRs and Account history. We will review your Account from time to time as required by law to determine if
© When we first determine the Penalty APR, we use the Prime Rate that is in any Penalty APR should be reduced.
MAKING PAYMENTS
Payment Instructions » You must pay us in U.S. dollars. All checks must be drawn on funds on deposit © We may refuse to accept a payment in a foreign currency. If we do accept it, we
inthe U.S, will charge your Account our cost to convert it to U.S. dollars.
You must pay us for all amounts due on your Account, This includes charges «We can accept late payments, partial payments or payments marked
made by Authorized Users. “payment in full" or with any other restrictive endorsement without losing
any of our rights under this Agreement.
:
©2016 Discover Bank, Member FDIC ae
MAKING PAYMENTS
Payment Instructions ‘© We credit your payments in accordance with the terms contained on your billing + If you mail your payment to an address other than the address designated on
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 for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest
time. Each billing period you must pay at least the Minimum Payment Due by the Charges; and Late Fees.
Payment Due Date shown on your billing statement. The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed
will be any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance. When
© $35; 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 @ manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
required by applicable law. ‘APRs as of the date we credit your payment.
INTEREST CHARGES
How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily « We make other adjustments (including those adjustments required in the “Paying
ti
Charges—Dail Balance
Method (inclu ing current
transactions)
balance” for each Transaction Category. Transaction Categories indude standard
Purchases, standard Cash Advances and different promotional balances, such as
Interest” section),
How We Figure Your Total Interest Charges
Balance Transfers. * We multiply the daily balance for each Transaction Category by its daily periodic
How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period. This gives us the interest
‘© We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide
first day of the billing period is your balance on the last day of your previous billing 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 charges accrued on the previous day's daily balance and any the biling period.
‘new transactions and fees. We add any new transactions or fees as of the How We Include Fees
{ater of the Transaction Date or the first day of the billing period in which the ‘We add Balance Transfer Fees to the applicable Balance Transfer Transaction
transaction or fee posted to your Account. Category. We ald Cash Advance Feesto 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 Date shown on that billing statement, we will not impose interest charges on new
We begin to impose interest charges on a transaction, fee or interest Purchases, or any portion of a new Purchase, paid by the Payment Due Date on
charge from the day we add it to the daily balance. We continue to impose interest your current billing statement. New Purchases are Purchases that first appear on
charges until you pay the total amount you owe us. You can avoid paying the current billing statement.
interest on Purchases as described below. However, you cannot avoid paying How We Apply Payments May Impact Your Grace Period
interest on Balance Transfers or Cash Advances. If you do not pay your New Balance in full each month, then, depending on the
How to Avoid Paying Interest on Purchases (“Grace Period”) balance to which we apply your payment, you may not get a grace period on new
If you paid the New Balance on your previous billing statementby the Payment Due Purchases.
OTHER IMPORTANT INFORMATION
You are in default if + you fail to comply with the terms of this Agreement or any Agreement with
Default + you file bankruptcy or another insolvency proceeding is filed by you or against you; us or an Affiliate, including failing to make a required payment when due,
+ we have a reasonable belief that you are unable o unwling to repay your exceeding your Account credit line or using your Card or Account for an illegal
transaction.
obligations to us;
» you die or are legally declared incompetent or incapacitated; Ifyou are in default, we may declare the entire balance of your Account immediately
due and payable without notice,
Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection
costs, and fees and costs of any appeal,
Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account. You assign
to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing.
Automatic Billing You may set up automatic billing with a merchant. if your Account numberor Card expiration date changes, you authorize us to provide this updated information to any
Arrangements ‘such merchant at our discretion. You must contact the merchant directly if you wish to stop automatic billing,
Our Privacy Policy We send you our Privacy Policy when you open your Account and annually, © howwe safeguard its confidentiality and security;
Contact us or visit Discover.com if you would like a copy. Please read it carefully, ‘© when it may be shared with others; and
It summarizes: * how you can limit our sharing of this information.
© the personal information we collect;
Reporting to Credit ‘We may from time to time review your credit, employment and income records. We may If you believe that information we reported is inaccurate or incomplete, please
Reporting Agencies report the status and payment history of your Account to credit reporting agencies and write us at Discover, PO Box 15316, Wilmington, DE 19850-5316. Please include
other creditors, We normally report to credit reporting agencies each month, your name, address, home phone number and Account number.
2
OTHER IMPORTANT INFORMATION
Our Communications You agree that we (and our affiliates, agents, and contractors) may monitor or You must notify us if any number you provided to us or at which we contact you with
with You record any calls between you and us. If we need to contact you to service your ‘your consent or authorization changes or is no longer in use. We may contact you in
Account or to collect amounts you owe to us, you authorize us (and our affiliates, any way, such as calling, texting, or email, We may contact you using an automated
agents, and contractors) to contact you at any number () you have provided to us (i) dialer or using pre-recorded messages. We may contactyou on a mobile, wireless,
from which you called us, or (ii) which we obtained and believewe can reach you at, or similar device, even if you are charged for it by your provider.
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
temain responsible for paying all amounts owed.
Purchases and Cash Hf you make a Purchase or Cash Advance in a foreign currency, we will convert depending on the country and currency in which the transaction is made, We use
Advances in Foreign it to U.S. dollars using a rate we choose. This rate will either be a government- the rate in effect on the conversion date for the transaction. This rate may be
Currencies mandated rate, a government-published rate or the interbank exchange rate, different than the rate in effect on the Transaction Date for the transaction.
Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the eventyou default and we file a lawsuit to recover funds loaned to you, the
statute of limitations
of the state where the lawsuitis filed will apply, without regard to that state's conflicts of laws principles or its "borrowing statute.”
Severability If any part of this Agreement is found to be invalid, the rest of it will still remain in effect. However, if the Class Action Waiver in the “Arbitration of Disputes” section is
invalidated in any proceeding in which you and we are involved, then the “Arbitration of Disputes” section will be void with respect to that proceeding.
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, PO 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, “Pricing Schedule” means the document entitled, “Pricing Schedule’, which lists the APRs that
“affiliate” means our parent corporations, subsidiaries and affiliates. apply to your Account and other important information,
“Authorized User” means any person you authorize to use your Account or a Card, whether you “Prime Rate" means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
notify us or not. section of The Wall Street Journalon the last business day of the month,
“Balance Transfer” means a balance transferred from another creditor to your Account. “Purchase” means the use of your Account to purchase ot lease goods or services at
participating merchants.
“Card” means any one or more Discover cards issued to you or someone else with your authorization.
“We," “us” and “our” refer to Discover Bank, the issuer of your Card.
“Cash Advance” means the use of your Account to:
“You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable
© obtain cash from participating automated teller machines, financial institutions or other locations; under this Agreement.
© purchase lottery tickets, money orders, casino chips, foreign currency or similar items. “Transaction Date” means the date shown on your billing statement
for a transaction or fee.
“Check” means any check we send to you to access your Account,
ARBITRATION
Agreement to arbitrate. In the event of a dispute between you respect to any claim made by a new party or any new claims later + JAMS at 620 Eighth Ave,, Floor 34, New York, NY 10018,
and us arising under or relating to this Account, either may choose asserted in that lawsuit. www jamsadr.com (phone 1-800-352-5267).
to resolve the dispute by binding arbitration, as described below, Your Right to Go To Small Claims Court. We will not choose If both AAA and JAMS are completely unavailable, and if you and
instead of in court. Any claim (except for a claim challenging the to arbitrate any claim you bring in small claims court. However, ‘we cannot agree on a substitute, then either you or we may request
validity or enforceability of this arbitration. agreement, including if such a claim is transferred, removed or appealed to a different that a court appoint a substitute,
the Class Action Waiver) may be resolved by binding arbitration if court, we may then choose to arbitrate. Fees and Costs, if you wish to begin arbitration against us but
either side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE Governing Law and Rules. This arbitration agreementis governed ‘you cannot afford to pay the organization's or arbitrator's costs,we
ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO by the Federal Arbitration Act (FAA). Arbitration must proceed only will advance those costs if you ask us in writing. Any request like
LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO with the American Arbitration Association (AAA) or JAMS. The this should be sent to Discover, PO Box 30421, Salt Lake City, UT
DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. tules for the arbitration will be those in this arbitration agreement 84130-0421. If you lose the arbitration, the arbitrator will decide
CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN and the procedures of the chosen arbitration organization, but whether you must reimburse us for money we advanced for you
INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY the rules in this arbitration agreement will be followed if there for the arbitration. if you win the arbitration, we will not ask for
JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR is disagreement between the agreement and the organization's reimbursement
of money we advanced, Additionally
if you win the
AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR procedures. If the organization's procedures change after the claim atbitration, the arbitrator may decide that you are entitled to be
ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER is filed, the procedures in effect when the claim was filed will apply. reimbursed your reasonable attorneys’ fees and costs (if actually
OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. For a copyof each organization's procedures, to file a claim or for paid by you).
Only a court, and not an arbitrator, shall determine the validity and other information, please contact:
effect of the Class Action Waiver. Even if all parties have opted * AAA at 1101 Laurel Oak Rd., Voorhees, NJ 08043,
to litigate a claim in court, you or we may elect arbitration with ‘wwweadrorg (phone 1-877-495-4185) or
3.
ARBITRATION
Hearings and Decisions. Arbitration hearings will take place in organization not later than 30 days after the original award issues. © any bankruptcy by you; and
the federal judicial district where you live. A single arbitrator will ‘The appealing party pays all appellate costs unless the appellate * any sale by us of your Account.
be appointed panel determines otherwise as part of its award. You Have the Right to Reject Arbitration for this Account.
The arbitrator must: Any arbitration award may be enforced (such as through a You may reject the arbitration agreement but only if we
* Follow all applicable substantive law, except whe
Preview
NO. 22-05-06545 DISCOVER BANK, § IN THE COUNTY COURT Plaintiff § AT LAW NO. 6 Vv. MONTGOMERY COUNTY, TEXAS SYLVIA A MIZE AND BOBBY W MIZE AND BOBBY W MIZE, 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), Sylvia A Mize And Bobby W Mize AND BOBBY W MIZE, 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 146. Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil Procedure, which states that the judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue if material fact and the moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v. Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ). BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS In Winchek v. American Express, 232 S.W.3d 197 (Tex. App. - Houston [1*] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. 4. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.), The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay v. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Id. at 202 (citing Prime Products, Inc. v. S.SJI. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. In other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1*] Mar. 20, 2008) (citations omitted). 7. Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14""] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . .. We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Id. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Sylvia A Mize And Bobby W Mize AND BOBBY W MIZE, for the following: The principal damages amount claimed for in Plaintiff's Complaint of $2,479.95 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 $530.43 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: Lg [ ] JOHNETTALANG, ESQ. State Bar Number 24036943 [ ] OLEN MANNING, ESQ. State Bar Number 24118453 [ ] MELISSA REED State bar number 24046695 [ ] JASMINE LEWIS, ESQ. STATE BAR NUMBER 24104830 X Mirza Baig, ESQ State Bar Number 24126948 CERTIFICATE OF SERVICE Thereby certify that on the (Praay 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 [v] First-Class Mail opa2 1b70 O01 7462 2009 [ ] E-Service [V] Certified Mail SYLVIA A MIZE 705 TALLOW DR CONROE, TX 77385 BOBBY W MIZE 705 TALLOW DR CONROE, TX 77385 WB ace [ ] JOHNETTA“LANG, ESQ. [ ] OLEN MANNING, ESQ. [ ] MELISSA REED, ESQ. [ ] JASMINE LEWIS, ESQ. X Mirza Baig, ESQ NO. 22-05-06545 DISCOVER BANK, § IN THE COUNTY COURT Plaintiff § § AT LAW NO. 6 v. MONTGOMERY COUNTY, TEXAS SYLVIA A MIZE AND BOBBY W MIZE AND BOBBY W MIZE, 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 EXHIBIT “A” Affidavit in Support of Judgment NO. 22-05-06545 DISCOVER BANK, IN THE COUNTY COURT Plaintiff v AT LAW NO 6 SYLVIA A MIZE, Defendant(s) MONTGOMERY COUNTY, TEXAS NOTICE OF BUSINESS RECORDS AND PLAINTIFF’S EXHIBITS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Discover Bank (“Plaintiff”) and notifies parties that business records with an affidavit of a duly authorized custodian of records will be offered into evidence at trial and is attached hereto. 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: [ X ] JOHNETTA LANG, ESQ. STATE BAR NUMBER 24036943 [ ] TREVON WATSON STATE BAR NUMBER 24125451 CERTIFICATE OF SERVICE I hereby certify that on the 7th day of October, 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure as follows: [ X ] First-Class Mail [ ] E-Service [ ] Certified Mail SYLVIA A MIZE, PRO SE DEFENDANT 705 TALLOW DR CONROE, TX 77385 BY: Hey [X ] JOHNETTA LANG, ESQ. STATE BAR NUMBER 24036943 [ ] TREVON WATSON STATE BAR NUMBER 24125451 STATE OF OHIO COUNTY OF FRANKLIN ATTORNEY: Zwicker & Associates P.C. ACCOUNT NUMBER: XXXXXXXXXXXXX146 BALANCE: $ 2,479.95 CARDMEMBER (S): SYLVIA A MIZE BOBBY W MIZE jenni pI! according to law, anf/y eMar) personally appeared before me, on this day and after being duly sworn, my oath, state as follows: “My name is Man I am a Litigation Support Coordinator for DISCOVER PRODUCTS ‘5 Successor merger to DB Servicing Corporation, the servicing affiliate of DISCOVER BANK, an FDIC insured Delaware State Bank (hereinafter referred to as “DISCOVER. PRODUCTS INC.”) and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities. 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. In my capacity as a Litigation Support Coordinator, 1 have knowledge regarding, and access to, records regarding the Discover Card Account of the above-referenced Cardmember(s), the Defendant(s) in this action and referred to herein as the Debtor(s). Attached hereto are 180 pages of records from XXXXXXXXXXXXX146, These said 180 pages of records are kept by DISCOVER PRODUCTS INC. in the regular course of 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 or reasonably soon thereafter. The records were kept in the course of regularly conducted business activity and it is the regular practice of the business activity to make the records. The documents attached are true and accurate records of the account. The same systems that record this information also generate periodic statements that are sent to Account holders, such as Debtor(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 a cardholder and accepted by a cardholder through the cardholder’s 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 Debtor(s), including the last periodic statement sent to the Debtor(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Debtor(s) have made payments on that balance. The account is in default because the Debtor(s) has/have not paid the amounts due and owing to Discover Bank on the account. The current balance due and owing on the account is $2,479.95. The business records maintained by DISCOVER PRODUCTS INC. and described above show that the Debtor(s)’ account with Discover Bank is governed by terms and conditions referred to by Discover Bank and DISCOVER PRODUCTS INC. as “terms level 25J.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s counsel in this case and is attached hereto as Exhibit A. Exhibit B includes true and accurate copies of the account records retrieved from the record-keeping system described above. 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, and 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 Debtor(s), the above-referenced Debtor(s) is not engaged in any of the military services of the United States. 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: 705 TALLOW DR CONROE, TX 77385 I declare under penalty of perjury that the foregoing is true and correct. A [Mogens Affiant AN eg le’ DiaQemw) nv SUBSCRIBED TO AND SWORN TO before me this‘ day of {] MY) 2022. (A Notary Publi ’L{YOoRLY oe os Win, t Sein, HEATHER MARIE HYSELL NOTARY PUBLIC - OHIO MY COMMISSION EXPIRES “she, 01-09-27 i PE OF dare EXHIBITA ICR CM.TL25).LIN.0716. 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 @ 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. You must notify us if you wish to cancel the authority of an Authorized User to use your Account. Joint Accounts If your Account is 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 line is. You must Keep your Account for Cash Advances. We may increase or decrease your Account credit line or your balance below your Account credit line. If you do not, we may request immediate Cash Advance credit line without notice. We may delay increasing your available payment of the amount by which you exceed it. We may establish a lower credit line credit by the amount of any payment thatwe 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 prior to the date on which charge you a Late Fee. The fee is $27 if you were not charged a Late Fee during any the fee was assessed. of the prior six billing periods, Otherwise, the fee is $37. 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 $37, 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 priorto the date on re-submitit. The feeis $27 if you were not charged a Returned Payment Fee during which the payment was returned to us. ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs Your Pricing Schedule may include variable APRs. These APRs are determined by will take effect on the first day of the billing period that begins during the same adding the number of percentage points that we specify to the Prime Rate. Variable calendar month that the Prime Rate changes. An increase in the APR will increase ‘APRs will increase or decrease when the Prime Rate changes. The APR change your interest charges and may increase your Minimum Payment Due, Penalty APR When It Applies effect for the billing period in which you did not pay the Minimum Payment Each time that you do not pay the Minimum Payment Due by the Payment Due Due by the Payment Due Date Date we may: i psc * terminate any promotional APRs on new transactions; and iy a « increase your APRs for new transactions to Penalty APRs. We will not apply a Penalty APR to Cash Advances. coeial i 9 SEEN Deus We Will Notify You How It Affects Your Account We will notifyyou ofthe date a Penalty APR will take effect. The Penalty APR will ‘To determine the variable Penalty APR for a new transaction: only apply to new transactions with a Transaction Date more than 14 days afterwe » We add up to 5 additional percentage points to the otherwise applicable APR. provide the notice to you. + We set your Penalty APR based on your creditworthiness and other factors. These We May Reduce It factors include your current APRs and Account history. We will review your Account from time to time as required by law to determine if © When we first determine the Penalty APR, we use the Prime Rate that is in any Penalty APR should be reduced. MAKING PAYMENTS Payment Instructions » You must pay us in U.S. dollars. All checks must be drawn on funds on deposit © We may refuse to accept a payment in a foreign currency. If we do accept it, we inthe U.S, will charge your Account our cost to convert it to U.S. dollars. You must pay us for all amounts due on your Account, This includes charges «We can accept late payments, partial payments or payments marked made by Authorized Users. “payment in full" or with any other restrictive endorsement without losing any of our rights under this Agreement. : ©2016 Discover Bank, Member FDIC ae MAKING PAYMENTS Payment Instructions ‘© We credit your payments in accordance with the terms contained on your billing + If you mail your payment to an address other than the address designated on 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 for any debt protection product thatyou enrolled in on or after 2/1/2015; Interest time. Each billing period you must pay at least the Minimum Payment Due by the Charges; and Late Fees. Payment Due Date shown on your billing statement. The Minimum Payment Due The Minimum Payment Due may also include amounts by which you exceed will be any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance. When © $35; 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 @ manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us. In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower required by applicable law. ‘APRs as of the date we credit your payment. INTEREST CHARGES How We Calculate Interest We calculate interest charges each billing period by first figuring the “daily « We make other adjustments (including those adjustments required in the “Paying ti Charges—Dail Balance Method (inclu ing current transactions) balance” for each Transaction Category. Transaction Categories indude standard Purchases, standard Cash Advances and different promotional balances, such as Interest” section), How We Figure Your Total Interest Charges Balance Transfers. * We multiply the daily balance for each Transaction Category by its daily periodic How We Figure the Daily Balance for Each Transaction Category rate, We do this for each day in the billing period. This gives us the interest ‘© We start with the beginning balance for each day. The beginning balance for the charges for each Transaction Category. To get a daily periodic rate, we divide first day of the billing period is your balance on the last day of your previous billing 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 charges accrued on the previous day's daily balance and any the biling period. ‘new transactions and fees. We add any new transactions or fees as of the How We Include Fees {ater of the Transaction Date or the first day of the billing period in which the ‘We add Balance Transfer Fees to the applicable Balance Transfer Transaction transaction or fee posted to your Account. Category. We ald Cash Advance Feesto 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 Date shown on that billing statement, we will not impose interest charges on new We begin to impose interest charges on a transaction, fee or interest Purchases, or any portion of a new Purchase, paid by the Payment Due Date on charge from the day we add it to the daily balance. We continue to impose interest your current billing statement. New Purchases are Purchases that first appear on charges until you pay the total amount you owe us. You can avoid paying the current billing statement. interest on Purchases as described below. However, you cannot avoid paying How We Apply Payments May Impact Your Grace Period interest on Balance Transfers or Cash Advances. If you do not pay your New Balance in full each month, then, depending on the How to Avoid Paying Interest on Purchases (“Grace Period”) balance to which we apply your payment, you may not get a grace period on new If you paid the New Balance on your previous billing statementby the Payment Due Purchases. OTHER IMPORTANT INFORMATION You are in default if + you fail to comply with the terms of this Agreement or any Agreement with Default + you file bankruptcy or another insolvency proceeding is filed by you or against you; us or an Affiliate, including failing to make a required payment when due, + we have a reasonable belief that you are unable o unwling to repay your exceeding your Account credit line or using your Card or Account for an illegal transaction. obligations to us; » you die or are legally declared incompetent or incapacitated; Ifyou are in default, we may declare the entire balance of your Account immediately due and payable without notice, Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal, Merchant Disputes Ifyou have a dispute with a merchant, you may request a credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account. You assign to us your claim for the credited amount against the merchant and/or any third party, At our request, you agree to provide this assignment in writing. Automatic Billing You may set up automatic billing with a merchant. if your Account numberor Card expiration date changes, you authorize us to provide this updated information to any Arrangements ‘such merchant at our discretion. You must contact the merchant directly if you wish to stop automatic billing, Our Privacy Policy We send you our Privacy Policy when you open your Account and annually, © howwe safeguard its confidentiality and security; Contact us or visit Discover.com if you would like a copy. Please read it carefully, ‘© when it may be shared with others; and It summarizes: * how you can limit our sharing of this information. © the personal information we collect; Reporting to Credit ‘We may from time to time review your credit, employment and income records. We may If you believe that information we reported is inaccurate or incomplete, please Reporting Agencies report the status and payment history of your Account to credit reporting agencies and write us at Discover, PO Box 15316, Wilmington, DE 19850-5316. Please include other creditors, We normally report to credit reporting agencies each month, your name, address, home phone number and Account number. 2 OTHER IMPORTANT INFORMATION Our Communications You agree that we (and our affiliates, agents, and contractors) may monitor or You must notify us if any number you provided to us or at which we contact you with with You record any calls between you and us. If we need to contact you to service your ‘your consent or authorization changes or is no longer in use. We may contact you in Account or to collect amounts you owe to us, you authorize us (and our affiliates, any way, such as calling, texting, or email, We may contact you using an automated agents, and contractors) to contact you at any number () you have provided to us (i) dialer or using pre-recorded messages. We may contactyou on a mobile, wireless, from which you called us, or (ii) which we obtained and believewe can reach you at, or similar device, even if you are charged for it by your provider. 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 temain responsible for paying all amounts owed. Purchases and Cash Hf you make a Purchase or Cash Advance in a foreign currency, we will convert depending on the country and currency in which the transaction is made, We use Advances in Foreign it to U.S. dollars using a rate we choose. This rate will either be a government- the rate in effect on the conversion date for the transaction. This rate may be Currencies mandated rate, a government-published rate or the interbank exchange rate, different than the rate in effect on the Transaction Date for the transaction. Governing Law This Agreement is governed by applicable federal law and by Delaware law. However, in the eventyou default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuitis filed will apply, without regard to that state's conflicts of laws principles or its "borrowing statute.” Severability If any part of this Agreement is found to be invalid, the rest of it will still remain in effect. However, if the Class Action Waiver in the “Arbitration of Disputes” section is invalidated in any proceeding in which you and we are involved, then the “Arbitration of Disputes” section will be void with respect to that proceeding. 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, PO 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, “Pricing Schedule” means the document entitled, “Pricing Schedule’, which lists the APRs that “affiliate” means our parent corporations, subsidiaries and affiliates. apply to your Account and other important information, “Authorized User” means any person you authorize to use your Account or a Card, whether you “Prime Rate" means the highest rate of interest listed as the U.S. Prime rate in the Money Rates notify us or not. section of The Wall Street Journalon the last business day of the month, “Balance Transfer” means a balance transferred from another creditor to your Account. “Purchase” means the use of your Account to purchase ot lease goods or services at participating merchants. “Card” means any one or more Discover cards issued to you or someone else with your authorization. “We," “us” and “our” refer to Discover Bank, the issuer of your Card. “Cash Advance” means the use of your Account to: “You,” “your” or “yours” refer to you and any other person(s) who are also contractually liable © obtain cash from participating automated teller machines, financial institutions or other locations; under this Agreement. © purchase lottery tickets, money orders, casino chips, foreign currency or similar items. “Transaction Date” means the date shown on your billing statement for a transaction or fee. “Check” means any check we send to you to access your Account, ARBITRATION Agreement to arbitrate. In the event of a dispute between you respect to any claim made by a new party or any new claims later + JAMS at 620 Eighth Ave,, Floor 34, New York, NY 10018, and us arising under or relating to this Account, either may choose asserted in that lawsuit. www jamsadr.com (phone 1-800-352-5267). to resolve the dispute by binding arbitration, as described below, Your Right to Go To Small Claims Court. We will not choose If both AAA and JAMS are completely unavailable, and if you and instead of in court. Any claim (except for a claim challenging the to arbitrate any claim you bring in small claims court. However, ‘we cannot agree on a substitute, then either you or we may request validity or enforceability of this arbitration. agreement, including if such a claim is transferred, removed or appealed to a different that a court appoint a substitute, the Class Action Waiver) may be resolved by binding arbitration if court, we may then choose to arbitrate. Fees and Costs, if you wish to begin arbitration against us but either side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE Governing Law and Rules. This arbitration agreementis governed ‘you cannot afford to pay the organization's or arbitrator's costs,we ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO by the Federal Arbitration Act (FAA). Arbitration must proceed only will advance those costs if you ask us in writing. Any request like LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, ALSO with the American Arbitration Association (AAA) or JAMS. The this should be sent to Discover, PO Box 30421, Salt Lake City, UT DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. tules for the arbitration will be those in this arbitration agreement 84130-0421. If you lose the arbitration, the arbitrator will decide CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN and the procedures of the chosen arbitration organization, but whether you must reimburse us for money we advanced for you INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY the rules in this arbitration agreement will be followed if there for the arbitration. if you win the arbitration, we will not ask for JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR is disagreement between the agreement and the organization's reimbursement of money we advanced, Additionally if you win the AGAINST OTHER CARDMEMBERS, OR LITIGATE IN COURT OR procedures. If the organization's procedures change after the claim atbitration, the arbitrator may decide that you are entitled to be ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER is filed, the procedures in effect when the claim was filed will apply. reimbursed your reasonable attorneys’ fees and costs (if actually OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. For a copyof each organization's procedures, to file a claim or for paid by you). Only a court, and not an arbitrator, shall determine the validity and other information, please contact: effect of the Class Action Waiver. Even if all parties have opted * AAA at 1101 Laurel Oak Rd., Voorhees, NJ 08043, to litigate a claim in court, you or we may elect arbitration with ‘wwweadrorg (phone 1-877-495-4185) or 3. ARBITRATION Hearings and Decisions. Arbitration hearings will take place in organization not later than 30 days after the original award issues. © any bankruptcy by you; and the federal judicial district where you live. A single arbitrator will ‘The appealing party pays all appellate costs unless the appellate * any sale by us of your Account. be appointed panel determines otherwise as part of its award. You Have the Right to Reject Arbitration for this Account. The arbitrator must: Any arbitration award may be enforced (such as through a You may reject the arbitration agreement but only if we * Follow all applicable substantive law, except whe