Preview
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12/1/2022 12:45 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rhonda Burks DEPUTY
NO. DC-22-06821
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 160TH JUDICIAL DISTRICT
Vv. §
§ DALLAS COUNTY, TEXAS
LOUIS MCGUINN, §
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), Louis
Mceguinn, 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 683. Further, pursuant to Rule 166a(d) of the Texas Rules of Civil Procedure,
Plaintiff herein incorporates its subsequent business records affidavits and accompanying
documents that are on file with the Court within the time period proscribed by Rule 902(10)
of the Texas Rules of Evidence.
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. Tex. R. Civ. P. 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
3 In Winchek y, American Express, 232 S.W.3d 197 (Tex. App—Houston [1st Dist.] 2007,
no pet.), the court held that a valid contract was formed by evaluating the terms of the
cardmember agreement. The language in the agreement here and in Winchek is nearly
identical in parts relevant to the Court’s decision.
Parties form a binding contract when the following elements are present: (1) offer; (2)
acceptance; (3) meeting of the minds; (4) mutual consent; and (5) execution and delivery
of the agreement. 7.0. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
1992); see also Ghia v. American Express, 2007 Tex. App. LEXIS 8194 (Tex. App.—
Houston [14 Dist.] Oct. 11, 2007, no pet) (mem. op.). 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; see 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, 2006 Tex. App. LEXIS 8101, 2006 WL 2620089 (Tex. App—Houston
[14""] September 14, 2006, no pet.) (substitute op.); see also Winchek, 232 S.W.3d 197.
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. Winchek, 232 S.W.3d at 202 (citing Prime Products, Inc. v. S.SJ. Plastics,
Inc., 97 8.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 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 y. Citibank (South Dakota), N.A., 2008
Tex. App. LEXIS 2060 (Tex. App. —Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem.
op.) (citing Awad Tex. Enters., Inc. v. Homart Dey. Co., 589 S.W.2d 817, 819-820 (Tex.
Civ. App.—Dallas 1979, no writ) and Winchek, 232 S.W.3d at 204.
Regarding the final element of breach of contract claim (damages), the court in Winchek
looked to the fact 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.
Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex.
App—Houston [14th Dist.] Oct. 11,2007, no pet.) (mem. op.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Ghia 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.
Id. at *13.
9. The cardmember agreement in the Ghia 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 Ghia 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.
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), Louis Mcguinn, for the following:
1 The amount of $2,906.27 as the balance due, owing and unpaid;
2 Post-judgment interest on said sums from the date of Judgment until paid at
the legal rate of 6.25% per annum under §304.004, TEX. FINANCE CODE;
and
All costs of this proceeding.
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
17950 Preston Road
Suite 750
Dallas, TX 75252
ZATDLIT@ZWICKERPC.COM
833-510-2100
972-591-0468 (fax)
BY: [el Obwatoupac OQ, Thomae
O TIMOTHY ELDER ESQ.
STATE BAR NUMBER 00784013
0 ANTONY J. CHERIAN, ESQ.
STATE BAR NUMBER 24087291
& OLUWATOYOSI J. THOMAS, ESQ.
STATE BAR NUMBER 24118554
CERTIFICATE OF SERVICE
I hereby certify that on the day of November, 2022, this office served a true and correct
copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure
upon the below listed interested parties via
First-Class Mail
O) E-Service
LOUIS MCGUINN
417 BURBERRY
GRAND PRAIRIE, TX 75052
[eO4avateysec CQ Thomae
O TIMOTHY £. ELDER, ESQ.
0 ANTONY J. CHERIAN, ESQ.
& OLUWATOYOSI J. THOMAS, ESQ.
Department of Defense Manpower Data Center Results as of : Nov-18-2022 10:17:21 AM
SORA 5.15
ss x mm,
Status Report
/J@# Pursuant to Servicemembers Civil Relief Act
ened
SSN: XXX-XX-5585
Birth Date: Jan-XX-1970
Last Name: MCGUINN
First Name: LOUIS
Middle Name
Status As Of: Nov-18-2022
Certificate ID WS9QP4M8YBRXZ4S
On Active Duty On Active Duty Status Date
Active Duty Start Date Active Duty End Date Status Service Component
NA NA No NA
This response reflects the individuals’ active duty status based on the Active Duty Status Date
Left Active Duty Within 367 Days of Active Duty Status Date
Active Duty Start Date Active Duty End Date Status Service Component
NA NA No NA
This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date
‘The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date
(Order Notification Start Date (Order Notification End Date Status Service Component
NA NA No NA
This response reflects whether the individual or his/her unit has recelved early notification to report for active duty
Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of
the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and
Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
Michael V. Sorrento, Director
Department of Defense - Manpower Data Center
400 Gigling Rd
Seaside, CA 93955
The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility
Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems.
The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 3901 et seq, as amended) (SCRA) (formerly known as
the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the
individual is currently on active duty” responses, and has experienced only a small error rate. In the event the individual referenced above, or any family
member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the
protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service. Service contact
information can be found on the SCRA website's FAQ page (Q35) via this URL: https://scra.dmdc.osd.mili/scral#fags. If you have evidence the person
was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked
against you. See 50 USC App. § 3921(c).
This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether
the individual left Active
Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active
duty on the Active Duty Status Date.
More information on "Active Duty Status"
Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less
than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service
authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the
President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the
unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve
Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S.
Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps).
Coverage Under the SCRA is Broader in Some Cases
Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be
reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods.
Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1).
Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website
certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service.
Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not
actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a numberof protections of the SCRA
extend beyond the last dates of active duty.
Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA
are protected
WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing
erroneous information will cause an erroneous certificate to be provided.
NO. DC-22-06821
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 160TH JUDICIAL DISTRICT
Vv. §
§ DALLAS COUNTY, TEXAS
LOUIS MCGUINN, §
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 “A”
Affidavit in Support of Judgment
ACCOUNT NUMBER: XXXXXXXXXXXX4683
BALANCE: $2,906.27
CARDMEMBER (S): LOUIS MCGUINN
STATE OF OHIO
COUNTY OF FRANKLIN
Maranda Harris, personally appeared before me, on this day and after being duly sworn, 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).
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:
417 BURBERRY
GRAND PRAIRIE, TX 75052-0032
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
28L.” 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 (rue and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to
ZWI_MCGUINN_1400862_1.5 V1.5
the Cardmember(s), retrieved from the record-keeping system described above.
Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s
record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account.
Exhibit C reflects the balance that includes any activity occurring on the account after the last statement
(Exhibit B).
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.
Eu a
°
‘Affiant
SUBSCRIBED TO AND SWORN 0 before me this 1 day of une 2022,
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ALEISHA MARIE WIEMKEN
NOTARY PUBLIC OHIO
SMe MY COMMISSION EXPIRES 05-08-24
HO Ker 95 PASFISTR ARERR
ZWI_MCGUINN_1400862_1.5 V1.5
CM.TL28L.LIN.0620
DISC@VER CARDMEMBER AGREEMENT
Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including
the Pricing Schedule, carefully. Keep them for your records. Contact us if you haveany 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 TO YOUR AGREEMENT
‘The rates, fees and terms of this Agreement may change from time to time, We may add or delete any term to this Agreement. If required by law, we will give you advance
written notice of the change(s) and a right to 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 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 Tf we provide you with Checks, we wil tll you whether
we will treat the Check asa Purchase, Balance Transfer or Cash Advance, You may nat ce thece 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 that we receive for up to 10 business days,
FEES (See your Pricing Schedule for Additional Fees)
Late Fee We will not charge a Late Fee the first time you do not make the Minimum Payment were not charged a Late Fee during any of the prior six bling periods, Otherwise,
Due by the Payment Due Date, After that, if you do not pay the Minimum Payment thefee is $40. This fee will never exceed the Minimum Payment Due that was due
Due by the Payment Due Date, we will charge you a Late Fee. The fee is $29, if you immediately prior to the date on which the fee was assessed,
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 $40. This fee will never
charge you a Retumed Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior tothe date on
re-submit it. The fee is $29 if you were not charged a Returned Payment Fee during ‘which the payment
was returnedto 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 None
MAKING PAYMENTS
Payment Instructions * You must pay in U.S. dollars, Please do not send cash, Sending cash is not © We credit your payments in accordance with the terms contained on your
allowed. All checks must be drawn on funds on deposit in the U.S. billing statement,
* You must pay us for all amounts due on your Account, This includes charges © Ifyou mail your payment to an address other than the address designated on
made by Authorized Users, your billing statement, there may be a delay in processing and crediting the
‘© We may refuse to accept a payment in a foreign currency. If we do accept it, Payment to your Account.
‘we will charge your Account our cost to convert it to U.S. dollars, Ifa third party makes a payment on your Account and we return all or a part of
© We can accept late payments, partial payments or payments marked such payment, then we may adjust your Account for any amount returned, We
“payment in full” or with any other restrictive endorsement without reserve the right to defend ourselves against any demand to return funds we
losing any of our rights under this Agreement. have received, and may agree to a compromise of the demanded amount
as part of a settlement.
Minimum Payment Due ‘You may pay the entire New Balance shown on your billing statement at any time, —S$15, plus any of the following charges as shown on your billing statement:
Each billing period you must pay at least the Minimum Payment Due by the Payment fees for any debt protection product thatyou enrolled in on or after 2/1/2015;
Due Date shown on your billing statement, The Minimum Payment Due will be the Interest Charges; and Late Fees (not to exceed 4% of the New Balance).
greater of The Minimum Payment Due may also include amounts by which you exceed your
© $20; or Account credit line, It will never exceed the New Balance, When we calculate the
any past due amount plus the greaterof: Minimum Payment Due, we may subtract from the New Balance certain fees added
— 3% of the New Balance shown on your billing statement (excluding any Interest toyour Account during the biling period, The Minimum Payment Due is rounded up
Charges and Late Fee shown on your billing statement); or to the nearest dollar,
©2020 Discover Bank, Member FDIC 1.
MAKING PAYMENTS
How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the
favorable or convenient for us, In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower
required by applicable law. APRs as of the date we credit your payment.
INTEREST CHARGES
How We Calculate Interest ‘We calculate interest charges each billing period by first figuring the “daily balance” How We Figure Your Total Interest Charges
Charges—Daily Balance for each Transaction Category, Transaction Categories include standard Purchases, ‘© We multiply the daily balance for each Transaction Category by its daily periodic
Method (including current standard Cash Advances and different promotional balances, suchas Balance Transfers, tate, We do this for each day in the billing period. This gives us the interest
transactions) How We Figure the Daily Balance for Each Transaction Category charges for each Transaction Category. To geta daily periodic rate, we divide the
© We start with the beginning balance for each day. The beginning balance for the APR that applies to the Transaction Category by 365,
first day ofthe billing period is your balanceon the last day of your previous biling period. © We add up all the daily interest charges. The sum is the total interest chargefor
© We add any interest charges accrued on the previous day's daily balance and any the billing period.
new transactions and fees, We add any new transactions or fees as of the later of How We Include Fees
the Transaction Date orth fst day of the bling period in which the transaction We add Balance Transfer Fees to the applicable Balance Transfer 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,
‘© We make other adjustments (including those adjustments required in the “Paying
Interest section).
Paying Interest When Interest Charges Begin Date shown on that billing statement, we will not impose interest charges on
We begin to impose interest charges on a transaction, fee or interest charge from New Purchases, New Purchases are Purchases that first appear on the next billing
the day we add it to the daily balance. We continue to impose interest charges statement. Interest will continue to accrue each day on Purchases that appeared on
until you pay the total amount you owe us. You can avoid paying interest on previous billing statements until you pay the New Balance in full and will be billed
Purchases as described below. However, you cannot avoid paying interest on in the next billing cycle,
Balance Transfers or Cash Advances. HowWe Apply Payments May Impact Your Grace Period
How to Avoid Paying Interest on Purchases ("Grace Period”) |fyou do not pay your New Balance in full each month, then, depending on the balance
If you pay the New Balance on your current billing statement by the Payment Due to which we apply your payment, you may not get a grace period on new Purchases.
OTHER IMPORTANT INFORMATION
Default You are in default ift * 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 Affliate, 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 are in default, we may declare the entire balance of your Account immediately
* you die or are legally declared incompetent or incapacitated; due and payable without notice.
Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs,
and fees and costs of any appeal.
Merchant Disputes Ifyou have a dispute with a merchant, you may requesta credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account, You assign lo 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, Account information changes, which may include your billing address, you authorize us
Information Updates merchant, wallet provider, or other third party ("Permitted Party"). tf you do, you ‘to provide this updated information to any such Permitted Party at our discretion. You
authorize us to share your Account information, which may include your rewards ‘must contact the Permitted Party directly or remove your credit card information from
account balance, with the Permitted Party, regarding the use of your Account. If your the Permitted Party website if you wish to stop automatic billing or Account updates,
Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. © how we safeguard its contidentiality 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;
Credit Reporting You authorize us to get information from credit reporting agencies and other agencies and other creditors. We normally reportto credit reporting agencies each
Agency Information sources for servicing or review of your Account, collection and any other use month, If you believe that information we reported is inaccurate or incomplete,
permitted by law, including to consider you for other products and services, We please write us at Discover, P.O, Box 30939, Salt Lake City, UT 84130-0939, Please
Tay report the status and payment history of your Account to credit reporting include your name, address, home phone number and Account number,
Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized You agree that the Authorized Parties may contact you using an automatic dialer or
with You Parties”) may contact you, including calls, text message or email, about any current or pre-recorded voice message. If you no longer wishto be contacted on your cell phone
future accounts or applications, with respect to all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written
phone number or email (} you have provided to us, (i) from which you contacted us, notice cancelling your consent at this address: Discover Bank, PO, Box 30937, Salt Lake
‘or (i which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937. The written notice must include: your name, mailing address,
may chargeyou message and data rates for calls or texts. You agree that the Authorized the last four digits of your Account number and the specific cell phone number(s) for
Parties may record ot monitor any calls between you and the Authorized Parties. You which you would like to cancel your consent to be contacted by an automated dialer or
agree to notify us if you change or discontinue using any phone number you provide, pre-recorded voice message,
Unauthorized Use ‘You must notify us immediately if: * you believe someone is using your Account or a Card without your permission.
© your Card is lost or stolen; or
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 Accountholder may cancel a joint Account, However, both of you will
remain responsible for paying all amounts owed. “2+
OTHER IMPORTANT INFORMATION
Purchases and Cash Advances If 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
in Foreign Currencies it to U.S, dollars using a rate we choose, This rate will either be a government- tuse the rate in effect on the conversion date for the transaction. This rate may
mandated rate, a government-published rate or the interbank exchange rate, be 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 event you default and we file a lawsuit to recaver funds loaned tn 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.
MILITARY BORROWERS
Statement of MAPR Federal law provides important protections to members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application
their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee
consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account). If you
not exceed an Annual Percentage Rate of 36 percent, This rate must include, as would like more information about whether this section applies to you, please
applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7. If calling outside
insurance premiums; (2) fees for ancillary products sold in connection with the the U.S., you can contact us at +1-801-451-3730,
Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645)
anytime 24/7. If calling outside the U.S., you can contact us at +1-801-451-3730,
CONTACT US
Unless we tell you otherwise, you can notify us: © by phone at 1-800-347-3085 or © in writing to Discover, P.O. Box 30943, Salt Lake City, UT 84130-0943.
When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number,
DEFINITIONS
“Account” means your Discover card account. “Check” means any check we send to you to access your Account,
“Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule” which lists the APRs that
“Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information.
notify us or not. “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates
“Balance Transfer” means a balance transferred from another creditor to your Account. section of the online Wall Street Journal (iwww.wsj.com) on the last business day of the month.
“Card” means any one or more Discover cards issued to you or someone else with your “Purchase” means the use of your Account to purchase or lease goods or services at
authorization. participating merchants.
“Cash Advance” means the use of your Account for: “We,” “us” and “our” refer to Discover Bank, the issuer of your Card,
* obtaining cash from partic
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I 12/1/2022 12:45 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rhonda Burks DEPUTY NO. DC-22-06821 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 160TH JUDICIAL DISTRICT Vv. § § DALLAS COUNTY, TEXAS LOUIS MCGUINN, § 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), Louis Mceguinn, 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 683. Further, pursuant to Rule 166a(d) of the Texas Rules of Civil Procedure, Plaintiff herein incorporates its subsequent business records affidavits and accompanying documents that are on file with the Court within the time period proscribed by Rule 902(10) of the Texas Rules of Evidence. 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. Tex. R. Civ. P. 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 3 In Winchek y, American Express, 232 S.W.3d 197 (Tex. App—Houston [1st Dist.] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. Parties form a binding contract when the following elements are present: (1) offer; (2) acceptance; (3) meeting of the minds; (4) mutual consent; and (5) execution and delivery of the agreement. 7.0. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); see also Ghia v. American Express, 2007 Tex. App. LEXIS 8194 (Tex. App.— Houston [14 Dist.] Oct. 11, 2007, no pet) (mem. op.). 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; see 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, 2006 Tex. App. LEXIS 8101, 2006 WL 2620089 (Tex. App—Houston [14""] September 14, 2006, no pet.) (substitute op.); see also Winchek, 232 S.W.3d 197. 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. Winchek, 232 S.W.3d at 202 (citing Prime Products, Inc. v. S.SJ. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 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 y. Citibank (South Dakota), N.A., 2008 Tex. App. LEXIS 2060 (Tex. App. —Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem. op.) (citing Awad Tex. Enters., Inc. v. Homart Dey. Co., 589 S.W.2d 817, 819-820 (Tex. Civ. App.—Dallas 1979, no writ) and Winchek, 232 S.W.3d at 204. Regarding the final element of breach of contract claim (damages), the court in Winchek looked to the fact 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. Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App—Houston [14th Dist.] Oct. 11,2007, no pet.) (mem. op.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Ghia 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. Id. at *13. 9. The cardmember agreement in the Ghia 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 Ghia 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. 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), Louis Mcguinn, for the following: 1 The amount of $2,906.27 as the balance due, owing and unpaid; 2 Post-judgment interest on said sums from the date of Judgment until paid at the legal rate of 6.25% per annum under §304.004, TEX. FINANCE CODE; and All costs of this proceeding. Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 17950 Preston Road Suite 750 Dallas, TX 75252 ZATDLIT@ZWICKERPC.COM 833-510-2100 972-591-0468 (fax) BY: [el Obwatoupac OQ, Thomae O TIMOTHY ELDER ESQ. STATE BAR NUMBER 00784013 0 ANTONY J. CHERIAN, ESQ. STATE BAR NUMBER 24087291 & OLUWATOYOSI J. THOMAS, ESQ. STATE BAR NUMBER 24118554 CERTIFICATE OF SERVICE I hereby certify that on the day of November, 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via First-Class Mail O) E-Service LOUIS MCGUINN 417 BURBERRY GRAND PRAIRIE, TX 75052 [eO4avateysec CQ Thomae O TIMOTHY £. ELDER, ESQ. 0 ANTONY J. CHERIAN, ESQ. & OLUWATOYOSI J. THOMAS, ESQ. Department of Defense Manpower Data Center Results as of : Nov-18-2022 10:17:21 AM SORA 5.15 ss x mm, Status Report /J@# Pursuant to Servicemembers Civil Relief Act ened SSN: XXX-XX-5585 Birth Date: Jan-XX-1970 Last Name: MCGUINN First Name: LOUIS Middle Name Status As Of: Nov-18-2022 Certificate ID WS9QP4M8YBRXZ4S On Active Duty On Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects the individuals’ active duty status based on the Active Duty Status Date Left Active Duty Within 367 Days of Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date ‘The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date (Order Notification Start Date (Order Notification End Date Status Service Component NA NA No NA This response reflects whether the individual or his/her unit has recelved early notification to report for active duty Upon searching the data banks of the Department of Defense Manpower Data Center, based on the information that you provided, the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services (Army, Navy, Marine Corps, Air Force, NOAA, Public Health, and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. Michael V. Sorrento, Director Department of Defense - Manpower Data Center 400 Gigling Rd Seaside, CA 93955 The Defense Manpower Data Center (DMDC) is an organization of the Department of Defense (DoD) that maintains the Defense Enrollment and Eligibility Reporting System (DEERS) database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act (50 USC App. § 3901 et seq, as amended) (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940). DMDC has issued hundreds of thousands of "does not possess any information indicating that the individual is currently on active duty” responses, and has experienced only a small error rate. In the event the individual referenced above, or any family member, friend, or representative asserts in any manner that the individual was on active duty for the active duty status date, or is otherwise entitled to the protections of the SCRA, you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service. Service contact information can be found on the SCRA website's FAQ page (Q35) via this URL: https://scra.dmdc.osd.mili/scral#fags. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification, punitive provisions of the SCRA may be invoked against you. See 50 USC App. § 3921(c). This response reflects the following information: (1) The individual's Active Duty status on the Active Duty Status Date (2) Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date (3) Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date. More information on "Active Duty Status" Active duty status as reported in this certificate is defined in accordance with 10 USC § 101(d) (1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard, this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC § 502(f) for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve (AGR) members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves (TARs), Marine Corps Active Reserve (ARs) and Coast Guard Reserve Program Administrator (RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration (NOAA Commissioned Corps). Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA, as defined in accordance with 10 USC § 101(d)(1). Many times orders are amended to extend the period of active duty, which would extend SCRA protections. Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore, some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted, but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a numberof protections of the SCRA extend beyond the last dates of active duty. Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected WARNING: This certificate was provided based on a last name, SSN/date of birth, and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided. NO. DC-22-06821 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 160TH JUDICIAL DISTRICT Vv. § § DALLAS COUNTY, TEXAS LOUIS MCGUINN, § 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 “A” Affidavit in Support of Judgment ACCOUNT NUMBER: XXXXXXXXXXXX4683 BALANCE: $2,906.27 CARDMEMBER (S): LOUIS MCGUINN STATE OF OHIO COUNTY OF FRANKLIN Maranda Harris, personally appeared before me, on this day and after being duly sworn, 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). 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: 417 BURBERRY GRAND PRAIRIE, TX 75052-0032 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 28L.” 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 (rue and accurate copy of the last periodic statement sent by DISCOVER PRODUCTS INC. to ZWI_MCGUINN_1400862_1.5 V1.5 the Cardmember(s), retrieved from the record-keeping system described above. Exhibit C is a true and accurate copy of information retrieved from DISCOVER PRODUCTS INC.’s record-keeping system that shows the current balance due and owing on the Cardmember(s)’ account. Exhibit C reflects the balance that includes any activity occurring on the account after the last statement (Exhibit B). 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. Eu a ° ‘Affiant SUBSCRIBED TO AND SWORN 0 before me this 1 day of une 2022, AXA Cf Yprrt bd t> shoncors paponnepheannsnnnones: mm 1 “Ny, oy %, ALEISHA MARIE WIEMKEN NOTARY PUBLIC OHIO SMe MY COMMISSION EXPIRES 05-08-24 HO Ker 95 PASFISTR ARERR ZWI_MCGUINN_1400862_1.5 V1.5 CM.TL28L.LIN.0620 DISC@VER CARDMEMBER AGREEMENT Thank you for choosing Discover® card, This Agreement explains the current terms and conditions of your Account. The enclosed Pricing Schedule is part of this Agreement. Please read this Agreement, including the Pricing Schedule, carefully. Keep them for your records. Contact us if you haveany 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 TO YOUR AGREEMENT ‘The rates, fees and terms of this Agreement may change from time to time, We may add or delete any term to this Agreement. If required by law, we will give you advance written notice of the change(s) and a right to 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 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 Tf we provide you with Checks, we wil tll you whether we will treat the Check asa Purchase, Balance Transfer or Cash Advance, You may nat ce thece 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 that we receive for up to 10 business days, FEES (See your Pricing Schedule for Additional Fees) Late Fee We will not charge a Late Fee the first time you do not make the Minimum Payment were not charged a Late Fee during any of the prior six bling periods, Otherwise, Due by the Payment Due Date, After that, if you do not pay the Minimum Payment thefee is $40. This fee will never exceed the Minimum Payment Due that was due Due by the Payment Due Date, we will charge you a Late Fee. The fee is $29, if you immediately prior to the date on which the fee was assessed, 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 $40. This fee will never charge you a Retumed Payment Fee even if the payment is honored after we exceed the Minimum Payment Due that was due immediately prior tothe date on re-submit it. The fee is $29 if you were not charged a Returned Payment Fee during ‘which the payment was returnedto 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 None MAKING PAYMENTS Payment Instructions * You must pay in U.S. dollars, Please do not send cash, Sending cash is not © We credit your payments in accordance with the terms contained on your allowed. All checks must be drawn on funds on deposit in the U.S. billing statement, * You must pay us for all amounts due on your Account, This includes charges © Ifyou mail your payment to an address other than the address designated on made by Authorized Users, your billing statement, there may be a delay in processing and crediting the ‘© We may refuse to accept a payment in a foreign currency. If we do accept it, Payment to your Account. ‘we will charge your Account our cost to convert it to U.S. dollars, Ifa third party makes a payment on your Account and we return all or a part of © We can accept late payments, partial payments or payments marked such payment, then we may adjust your Account for any amount returned, We “payment in full” or with any other restrictive endorsement without reserve the right to defend ourselves against any demand to return funds we losing any of our rights under this Agreement. have received, and may agree to a compromise of the demanded amount as part of a settlement. Minimum Payment Due ‘You may pay the entire New Balance shown on your billing statement at any time, —S$15, plus any of the following charges as shown on your billing statement: Each billing period you must pay at least the Minimum Payment Due by the Payment fees for any debt protection product thatyou enrolled in on or after 2/1/2015; Due Date shown on your billing statement, The Minimum Payment Due will be the Interest Charges; and Late Fees (not to exceed 4% of the New Balance). greater of The Minimum Payment Due may also include amounts by which you exceed your © $20; or Account credit line, It will never exceed the New Balance, When we calculate the any past due amount plus the greaterof: Minimum Payment Due, we may subtract from the New Balance certain fees added — 3% of the New Balance shown on your billing statement (excluding any Interest toyour Account during the biling period, The Minimum Payment Due is rounded up Charges and Late Fee shown on your billing statement); or to the nearest dollar, ©2020 Discover Bank, Member FDIC 1. MAKING PAYMENTS How We Apply Payments We apply payments and credits at our discretion, including in a manner most Each billing period, we will generally apply amounts you pay that exceed the favorable or convenient for us, In all cases, we will apply payments and credits as Minimum Payment Due to balances with higher APRs before balances with lower required by applicable law. APRs as of the date we credit your payment. INTEREST CHARGES How We Calculate Interest ‘We calculate interest charges each billing period by first figuring the “daily balance” How We Figure Your Total Interest Charges Charges—Daily Balance for each Transaction Category, Transaction Categories include standard Purchases, ‘© We multiply the daily balance for each Transaction Category by its daily periodic Method (including current standard Cash Advances and different promotional balances, suchas Balance Transfers, tate, We do this for each day in the billing period. This gives us the interest transactions) How We Figure the Daily Balance for Each Transaction Category charges for each Transaction Category. To geta daily periodic rate, we divide the © We start with the beginning balance for each day. The beginning balance for the APR that applies to the Transaction Category by 365, first day ofthe billing period is your balanceon the last day of your previous biling period. © We add up all the daily interest charges. The sum is the total interest chargefor © We add any interest charges accrued on the previous day's daily balance and any the billing period. new transactions and fees, We add any new transactions or fees as of the later of How We Include Fees the Transaction Date orth fst day of the bling period in which the transaction We add Balance Transfer Fees to the applicable Balance Transfer 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, ‘© We make other adjustments (including those adjustments required in the “Paying Interest section). Paying Interest When Interest Charges Begin Date shown on that billing statement, we will not impose interest charges on We begin to impose interest charges on a transaction, fee or interest charge from New Purchases, New Purchases are Purchases that first appear on the next billing the day we add it to the daily balance. We continue to impose interest charges statement. Interest will continue to accrue each day on Purchases that appeared on until you pay the total amount you owe us. You can avoid paying interest on previous billing statements until you pay the New Balance in full and will be billed Purchases as described below. However, you cannot avoid paying interest on in the next billing cycle, Balance Transfers or Cash Advances. HowWe Apply Payments May Impact Your Grace Period How to Avoid Paying Interest on Purchases ("Grace Period”) |fyou do not pay your New Balance in full each month, then, depending on the balance If you pay the New Balance on your current billing statement by the Payment Due to which we apply your payment, you may not get a grace period on new Purchases. OTHER IMPORTANT INFORMATION Default You are in default ift * 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 Affliate, 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 are in default, we may declare the entire balance of your Account immediately * you die or are legally declared incompetent or incapacitated; due and payable without notice. Collection Costs If we use an attorney to collect your Account, we may charge you our legal costs as permitted by law. These include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal. Merchant Disputes Ifyou have a dispute with a merchant, you may requesta credit to your Account. If we resolve the dispute in your favor, we will issue a credit to your Account, You assign lo 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, Account information changes, which may include your billing address, you authorize us Information Updates merchant, wallet provider, or other third party ("Permitted Party"). tf you do, you ‘to provide this updated information to any such Permitted Party at our discretion. You authorize us to share your Account information, which may include your rewards ‘must contact the Permitted Party directly or remove your credit card information from account balance, with the Permitted Party, regarding the use of your Account. If your the Permitted Party website if you wish to stop automatic billing or Account updates, Our Privacy Policy ‘We send you our Privacy Policy when you open your Account and annually. © how we safeguard its contidentiality 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; Credit Reporting You authorize us to get information from credit reporting agencies and other agencies and other creditors. We normally reportto credit reporting agencies each Agency Information sources for servicing or review of your Account, collection and any other use month, If you believe that information we reported is inaccurate or incomplete, permitted by law, including to consider you for other products and services, We please write us at Discover, P.O, Box 30939, Salt Lake City, UT 84130-0939, Please Tay report the status and payment history of your Account to credit reporting include your name, address, home phone number and Account number, Our Communications You agree that we, our Affiliates, and agents, including service providers ("Authorized You agree that the Authorized Parties may contact you using an automatic dialer or with You Parties”) may contact you, including calls, text message or email, about any current or pre-recorded voice message. If you no longer wishto be contacted on your cell phone future accounts or applications, with respect to all products you have with us at any by an automated dialer or pre-recorded voice message, you must provide us written phone number or email (} you have provided to us, (i) from which you contacted us, notice cancelling your consent at this address: Discover Bank, PO, Box 30937, Salt Lake ‘or (i which we obtained and believe we can reach you at, even if your phone provider City, UT 84130-0937. The written notice must include: your name, mailing address, may chargeyou message and data rates for calls or texts. You agree that the Authorized the last four digits of your Account number and the specific cell phone number(s) for Parties may record ot monitor any calls between you and the Authorized Parties. You which you would like to cancel your consent to be contacted by an automated dialer or agree to notify us if you change or discontinue using any phone number you provide, pre-recorded voice message, Unauthorized Use ‘You must notify us immediately if: * you believe someone is using your Account or a Card without your permission. © your Card is lost or stolen; or 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 Accountholder may cancel a joint Account, However, both of you will remain responsible for paying all amounts owed. “2+ OTHER IMPORTANT INFORMATION Purchases and Cash Advances If 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 in Foreign Currencies it to U.S, dollars using a rate we choose, This rate will either be a government- tuse the rate in effect on the conversion date for the transaction. This rate may mandated rate, a government-published rate or the interbank exchange rate, be 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 event you default and we file a lawsuit to recaver funds loaned tn 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. MILITARY BORROWERS Statement of MAPR Federal law provides important protections to members of the Armed Forces and credit transaction; (3) any application fee charged (other than certain application their dependents relating to extensions of consumer credit. In general, the cost of fees for specified credit transactions or accounts); and (4) any participation fee consumer credit to a member of the Armed Forces and his or her dependent may charged (other than certain participation fees for a credit card account). If you not exceed an Annual Percentage Rate of 36 percent, This rate must include, as would like more information about whether this section applies to you, please applicable to the credit transaction or account: (1) the costs associated with credit contact us at 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7. If calling outside insurance premiums; (2) fees for ancillary products sold in connection with the the U.S., you can contact us at +1-801-451-3730, Oral Disclosures Before agreeing to this Agreement, in order to hear important disclosures and payment information about this Agreement, please call 1-844-DFS-4MIL (1-844-337-4645) anytime 24/7. If calling outside the U.S., you can contact us at +1-801-451-3730, CONTACT US Unless we tell you otherwise, you can notify us: © by phone at 1-800-347-3085 or © in writing to Discover, P.O. Box 30943, Salt Lake City, UT 84130-0943. When writing, please include your name, address, home phone number and Account number. You must contact us within 15 days after changing your email address, mailing address or phone number, DEFINITIONS “Account” means your Discover card account. “Check” means any check we send to you to access your Account, “Affiliate” means our parent corporations, subsidiaries and affiliates. “Pricing Schedule” means the document entitled, “Pricing Schedule” which lists the APRs that “Authorized User” means any person you authorize to use your Account or a Card, whether you apply to your Account and other important information. notify us or not. “Prime Rate” means the highest rate of interest listed as the U.S. Prime rate in the Money Rates “Balance Transfer” means a balance transferred from another creditor to your Account. section of the online Wall Street Journal (iwww.wsj.com) on the last business day of the month. “Card” means any one or more Discover cards issued to you or someone else with your “Purchase” means the use of your Account to purchase or lease goods or services at authorization. participating merchants. “Cash Advance” means the use of your Account for: “We,” “us” and “our” refer to Discover Bank, the issuer of your Card, * obtaining cash from partic