Preview
FILED
11/30/2023 9:25 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
NO. DC-23-08508
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 44TH JUDICIAL DISTRICT
v
§ DALLAS COUNTY, TEXAS
DONNA L BRYANT,
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDG
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff, moves for Summary Judgment, against Defendant(s), Donna L
Bryant, 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 ofa 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 492. 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 ANALY: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 8.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
§.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 $.W.3d at 202 (citing Prime Products, Inc. v. S.S.I. 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 v. 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 Dev. 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 8.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.
Tdvat 3
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), Donna L Bryant, for the following:
1 The amount of $7,197.42 as the balance due, owing and unpaid:
2. Post-judgment interest on said sums from the date of Judgment until paid at
the statutory rate of 8.5% per annum under §304.004, TEX. FINANCE
CODE; and
All costs of this proceeding in the amount of $441.85.
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: “9 on T Nall
[ ] TIMOTHY L. ELDER, ESQ.
State Bar Number 00784013
[ ]OLUWATOYOSI J. THOMAS, ESQ.
State Bar Number 24118554
[ ] VALENCIA R. CARTER-BENNETT, ESQ
State Bar Number 24071076
)X{ JACKSON T. HALL, ESQ.
State Bar Number 24114978
[ ] SAMANTHA BEST, ESQ.
State Bar Number 24131258
CERTIFICATE OF SERVICE
I hereby certify that on the _21st___ day of November, 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
C) First-Class Mail
X E-Service
DONNA L BRYANT
1240 E PLEASANT RUN RD
APT 2107
CEDAR HILL, TX 75104
ef
{17 OTHY L. ELDER, ESQ.
State Bar Number 00784013
[ ] OLUWATOYOSI J. THOMAS, ESQ.
State Bar Number 24118554
[ ] VALENCIA R. CARTER-BENNETT.
ESQ.
State Bar Number 24071076
DX{ JACKSON T. HALL, ESQ.
State Bar Number 24114978
[ ] SAMANTHA BEST, ESQ.
State Bar Number 24131258
Department of Defense Manpower Data Center Results as of : Nov-30-2023 07:00:26 AM
SORA 5.18
i
% Status Report
4s Pursuant to Servicemembers Civil Relief Act
SSN:
Birth Date: a
Last Name: BRYANT
First Name: DONNA
Middle Name: L
Status As Of: Nov-30-2023
Certificate ID: 1Z4ZL01P45VKOXG
(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 Dato ‘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 Duly 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 received eary nolficalion 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, Space 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.
Sam ae ae
Sam Yousefzadeh, Director
Department of Defense - Manpower Data Center
4800 Mark Center Drive, Suite 04E25,
Alexandria, VA 22350
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 Servicomembers 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.mil/scra/#ifags. 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 ofa 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 number of 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-23-08508
DISCOVER BANK, § IN THE DISTRICT COURT
Plaintiff
§ 44TH JUDICIAL DISTRICT
v
§ DALLAS COUNTY, TEXAS
DONNA L BRYANT,
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
STATE OF OHIO
COUNTY OF FRANKLIN
ATTORNEY: Zwicker & Associates P.C.
ACCOUNT NUMBER: XXXXXXXXXXXXK492
BALANCE: $7,197.42
CARDMEMBER (S): DONNA L BRYANT
«
aGi personally appeared before me, on this d: lay and after being duly sworn,
according to law, and upon my oath, state as follows:
i .
“My name is < Lam a Litigation Su pport Coordinator for DISCOVER BANK,
an FDIC insured Delaware State Bank. DISCOVER B ANK, as well as its wholly-
owned servicing
subsidiary DISCOVER PRODUCTS INC. » is responsible for, among other things, maintain
ing account
records pertaining to Discover Credit Cari d accounts and interacting with Discover
Credit Card Account
Holder with regard to payments owed on thi jose accounts.
‘This affidavit is made on the basis of my personal knowledge.
In my capacity as a Litigation Support Coordinator, | have knowledge regarding,
and access to, records
tegarding 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
12 6 pages of records
20
from 492, These said 126 pages of records are
DISCOVER kept by
BANK and DISCOVER PRODUC’ TS INC. in the regular course of business,
and the records are
updated with information on even' its (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 reasonabl ly soon thereafter. The records
were kept in the course of
regularly conducted business activi ity 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 statemen
ts 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 in formation 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
or her Discover Card after receipt of the terms and conditions. I have persona
use of his
lly inspected the records
pertaining to the Account of the Debtor( 8), including the last periodic statemen
t sent to the Debtor(s) by
DISCOVER PRODUCTS INC., to as certain 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/haye not paid the amounts
due and owing to
DISCOVER BANK on the account. The current balance due and owing on the
account is $7,197.42.
The business records maintained by DISCOVER BANK and 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 as “terms level 29K.” A true and correct copy of these
terms and conditions have been provided to DISCOVER BANK’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 BANK has access to a system of records maintained by the United States Department of
Defense, which allows DISCOVER BANK 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 BANK to query this
system with respect to any account holder prior to initiating a collection action against that account
holder, and DISCOVER BANK 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 BANK and 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 BANK and DISCOVER
PRODUCTS INC., the last known address associated with the Cardmember(s) is/are:
1240 E PLEASANT RUN RD
APT 2107
CEDAR HILL, TX 75104
I declare under penalty of perjury that the foregoing is true and correct.
SUBSCRIBED TO AND SWORN TO before me this a U _ day of eg . 2023.
Ka Qn
Notary Public
ity
Soe
= Sk SHARON SLADER
NOTARY PUBLIC - OHIO
Y COMMISSION EXPIRES
05-31-28
“uy, .
rai
EXHIBIT A
ICR
M.TL29K.LIN,O922
DISC@VER CARDMEMBER AGREEMENT
Thank you for choasing Discover’ card. This Agreement explains the ourent terms end conditions of your Acccunt. The enclosed Pricing Schedule s part ofthis Agreement. Please read
this Agreement, includin
the Pricing Schedule,
g carefully. Keep them for yourrecords. Contact
us if you have any questions. Wehave!included ‘Definitions
section for your
’ reference on page3.
ACCEPTANCE OF AGREEMENT
‘You accept this Agreementif youde not cancel your Account within 30 days after receiving a Card, You also accept tris Agreementif you or an Authorized
User use the Account. Yournay, however, reject the “Arbitration of Disputes” section as explzined 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
# required by .law,
‘We wil give you advance written notice of the change(s) end aright to reject the changa(3), We wiltnot charge any fee or interest cherge prohibited by law.
USING YOUR ACCOUNT
Permitted Uses You may use your Accaunt 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 isajoint Account
«@ach of you agrees to be liable individually and jointly for the entireamount owed on the Account;and
-anynotice we mail to anaddress provided by either ot you for the Account willserve as natice to both of you,
Checks Hf 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 youif we decline ta authorizea transaction or if anyone
refuses your Card, Check or Account number.
Credit Lines We wil tell you what your Account credit lin You must keep your increase or decrease your Account cradit line or your Cash Advance
Account balance below your Account credit line. If you do not, we credit line without notice. We may delay incr nea your available
may request immediate payment of the armaunt by which: exceed credit by the amount of any payment that we recelve for up to 10
it. We may establish a lower credit line for Cash Advances. We may 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 Fee during eny of the prior six billing periods, Otherwise, the fee is$41,
Minimum Payment Due by the Payment Due Date. After that, if you do This fee will never exceed the Minimum Payment Due thet was due
not pay the Minimum Pay 'ent Due by the Payment Due Date, we
charge yous Late Fee, \e fee is $30, if you ware not charged a Late immediately prior to the date on which the fee was assessed,
Returned Payment f you make payment that is not honored by your financialinstitution, we: Payment Fee during any of the prior six bling periods. Otherwise, the fee
Fee will charge you a Returned Payment Fee even if the payment is honored \s $41, This fee will never exceed the Minimum Payment Due that was due
after we re-submit it. The fee is $30 if you were not charged a Returned immediately priorto the date on which the payment was returnedto us
ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account)
Variable APRs
determin ed
Your Pricint Schedule may include variable APRs. These APRs are
by adding the number of percentage points that we
specify to the Prime Rate. Variable APRs will increase or decrease
‘on the first day of the billing period that begins during the same
calendar month that the Prime Rate changes. An increase in the APR
will increase your interest charges and may increase your Minimum
when the Prime Rate changes. The APR change will take effect Payment Due, Your APR will never be less than zero.
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 depasitin the US, billing staternent,
+ Yournust pay usfor all amounts due on your Account. Thisincludes charges «Ifyou mail your payment to en.address other than the address designated
made
by Authorized | ‘onyour biling statement, there may bea delay in processing and crediting
We mayrefuse to accepta paymentin a foreign currency. f we doaccent it, the payment to yaur Account.
‘we wil charge your Account our cost toconvertit to US. dollars. if @ third party makes @ payment on your Aocourit and we return all ora
‘We can accept late payments, partial payments or payments marked. part of such payment, then we may adjust your Account for any amount
“payment in full" or with any other restrictive endorsement without losing retumed. We reserve the right to defand ourselves against any demand
‘any of ourrights
under this Agreement. to retum funds we have received, and may agree to a compromise of the:
demanded
amount as part ofasettlement.
Minirum Payment Due Youmay pay the entite New Balance shown on your biling statement at any fees for any debt protectionproduct thatyouenrolledin onorafter 2/2015;
time. Each billing periad you must pay at least the Minimum Payment Due Interest Charges;and Late Fees,
by the Payment Dus Date shown on your biling statement, The Minimum The Minimum Payment Due may iso include amounts by which you exceed
Payment Due willbe any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance,
+ $35;0r When we calculate the Minimum Payment Due, we may subtract from the
» 2% of the New Balance shown on yourbiling statement; or New Balance certain fees added to your Account during the billing period,
+ $20, plus ay of the folowing charges as shown on your biling statement: ‘The Minimum Payment Due is rounded up to the nearest dollar.
©2022 Discover Bank, Member FDIC =i2
MAKING PAYMENTS
How We Apply Payments We apply payments and credits at our discretion, including ina manner Each billing period, we will generally apply amounts you pay that exceed
‘Most favorable or convenient
for us. In all cases,
we vill apply payments. the Minimum Payment Due tebalanceswith higher APRs before balances
and creditsas required by applicable
law. with lower APRsas of the date we credit your payment.
INTEREST CHARGES
How We Calculate We calculate interest charges each billng period by fist figuring the “daly How We Figure Your Total interest Charges
Interest Charges— balance’ foreach 7 I include - Wemultpiythedalybelanceforeach TransactionCategorybyitsdalyperiodic
Daily Balance Method ‘Cashfea: and ifferent Promotional rate Wedothisforeachdayinthebilingperiod Thisglvesustheinterestcharges
{ ransactions}
‘including current balances,
suchas Balance Transfers.
How We Figure the Daly Balance for Each Transaction Category
for each Transaction Category, To get a dally periodic rate, we divide the
APR thet applies to the TransactionCat 365.
-Wesstart with the beginning balance for each day. The beginning balance - Weaddup al the daily interest charges.
The suis the total interest charge.
for the first day of the billng period is yeur balance on the last day of your forthe bilingperiod
previous billing period, - Due to rounding or 2 minimum interest charge, the Interest calculation may
+ We add any interest charges accrued on the previous day's daly balance ‘vary from the interest charge actually assessed.
and any new transactions and fees, We add any new transactions or fees How Welnclude Fees
sof the later of the Trensaction Date or the frst day of the billing period in Weadd Balance Transfer Fees tothe applicable Balance Transfer Transaction
which the transaction or fee posted to your Account.
+ We subtract any new credits and payments.
Category. We add Cash Advance Fees to the applicable Cash Advance
Transaction Category. We add all other fees to the standard Purchase
+ We make other adjustments (including those adjustments required in the Transaction Category.
“Paying interest” section).
Paying Interest ‘When interest Charges Begin interest charges on New Purchases. New Purchases are Purchases that
‘We begin to impose interest charges on 2 transaction, fee or interest firstappear on the next billing statement. Interest will continue toaccrue
charge from the day we add it to the dally balance. We continue to. each day on Purchases that appeared on previous billing statements until
impose interest charges unt'| you pay the total ammount you owe us. You you pay the New Balance in full and will be billed in the next biling cycle.
‘canavoid paying interest
on Purchases
as desoribed below. However, you How We Apply Paymants May Impact Your Graca Period
cannot avoid paying interest
on Balance Transfers or Cash Advances, If you do not pay your New Balance |n full each month, then, depending
How to Avoid Paying Interest on Purchases (“Grace Period") onthe balance to which we apply your payment, youmnay notgetagrace
If you pay the New Balance on your current billing statement by the period on new Purchases.
Payment Due Date shown on that billing statement, we will nat impose
OTHER IMPORTANT INFORMATION
Default You are in defaultif: + youfallto comply with the terms
of this Agreement or any Agreement
you file bankruptcy or another insolvency proceeding Is filed by youor with us or an Affiliate, including failing ta make a required payment
agalnst you; when due, exceeding your Account creditline or using your Card or
we have reasonable belief that you are unable or unwiling to repay Account foran illegal transaction,
your obligations
to us; ifyouare in default, we may declare the entire balance of your Account
you die
or are legally declared incompetent ot incapacitated; 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 reasonableattorneys’
fees, court or other collection costs, and fees and costs of any appeal.
Merchant Disputes f youhave a dispute with amerchant, youmay request a credit to your Account. f we resolve the dispute in your favor, we Wilissue a cradit to your Account,
‘Youassigntousyour claim for the credited amountagainst the merchantand/or any third party, At our request, youagreeto provide thisassignmentinwriting,
Automatic Account Yourmay setup automatic
billing or store your Account information with changes, which may include your billing address, you authorize us to
Information Updates an Affiliate, merchant, wallet provider, of other third party ("Permitted provide this updated information to any such Permitted Party at our
Party”). If you do, you authorize us to share your Account informetion, discretion. You must contact the Permitted Party directly or remove
which may Include your rewards account balance, with the Permitted your credit card information from the Permitted Party website if you
Party, regarding the use of your Account, if your Account information wish to stop automatic billing or Account updates,
b
‘Our Privacy Policy We send you our Privacy Policy when you open your Account. » how we safe uard its confidentiality and security;
Contact us or visit Discover.com if you would like a copy. Please read whenit may e shared with others; and
it carefully. it summarizes: » how you can limit our sharing of this information.
+ the personal information we collect;
Credit Reporting You authorize
us to get information fram credit reporting agencies and normally report to credit reporting agencies each month, If youbeliave
Agency Information other sources for servicing or review of your Account, collection and that information we reported is Inaccurate or incomplete, please write
any other use permitted by law, including to consider you for other us at Discaver, P.O. Box 30939, Salt Lake City, UT 84130-0939, Please
products and services. We may report the status and payment history inciude your name, address, home phone number and Account
of your Account to credit reporting agencies and other creditors, We number.
Our Communications You agree that we, our Affiliates, and agents, including service providers you provide. Youagree that the Authorized Partles may contact youusingan
with You (Authorized Parties") may contact you, including cals, text message or automatic dialer or pre-recorded voice message If younolonger wish tobe
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FILED 11/30/2023 9:25 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY NO. DC-23-08508 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 44TH JUDICIAL DISTRICT v § DALLAS COUNTY, TEXAS DONNA L BRYANT, Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDG TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff, moves for Summary Judgment, against Defendant(s), Donna L Bryant, 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 ofa 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 492. 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 ANALY: CREDIT CARD ACTIONS In Winchek v. American Express, 232 8.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 §.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 $.W.3d at 202 (citing Prime Products, Inc. v. S.S.I. 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 v. 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 Dev. 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 8.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. Tdvat 3 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), Donna L Bryant, for the following: 1 The amount of $7,197.42 as the balance due, owing and unpaid: 2. Post-judgment interest on said sums from the date of Judgment until paid at the statutory rate of 8.5% per annum under §304.004, TEX. FINANCE CODE; and All costs of this proceeding in the amount of $441.85. 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: “9 on T Nall [ ] TIMOTHY L. ELDER, ESQ. State Bar Number 00784013 [ ]OLUWATOYOSI J. THOMAS, ESQ. State Bar Number 24118554 [ ] VALENCIA R. CARTER-BENNETT, ESQ State Bar Number 24071076 )X{ JACKSON T. HALL, ESQ. State Bar Number 24114978 [ ] SAMANTHA BEST, ESQ. State Bar Number 24131258 CERTIFICATE OF SERVICE I hereby certify that on the _21st___ day of November, 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 C) First-Class Mail X E-Service DONNA L BRYANT 1240 E PLEASANT RUN RD APT 2107 CEDAR HILL, TX 75104 ef {17 OTHY L. ELDER, ESQ. State Bar Number 00784013 [ ] OLUWATOYOSI J. THOMAS, ESQ. State Bar Number 24118554 [ ] VALENCIA R. CARTER-BENNETT. ESQ. State Bar Number 24071076 DX{ JACKSON T. HALL, ESQ. State Bar Number 24114978 [ ] SAMANTHA BEST, ESQ. State Bar Number 24131258 Department of Defense Manpower Data Center Results as of : Nov-30-2023 07:00:26 AM SORA 5.18 i % Status Report 4s Pursuant to Servicemembers Civil Relief Act SSN: Birth Date: a Last Name: BRYANT First Name: DONNA Middle Name: L Status As Of: Nov-30-2023 Certificate ID: 1Z4ZL01P45VKOXG (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 Dato ‘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 Duly 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 received eary nolficalion 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, Space 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. Sam ae ae Sam Yousefzadeh, Director Department of Defense - Manpower Data Center 4800 Mark Center Drive, Suite 04E25, Alexandria, VA 22350 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 Servicomembers 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.mil/scra/#ifags. 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 ofa 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 number of 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-23-08508 DISCOVER BANK, § IN THE DISTRICT COURT Plaintiff § 44TH JUDICIAL DISTRICT v § DALLAS COUNTY, TEXAS DONNA L BRYANT, 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 STATE OF OHIO COUNTY OF FRANKLIN ATTORNEY: Zwicker & Associates P.C. ACCOUNT NUMBER: XXXXXXXXXXXXK492 BALANCE: $7,197.42 CARDMEMBER (S): DONNA L BRYANT « aGi personally appeared before me, on this d: lay and after being duly sworn, according to law, and upon my oath, state as follows: i . “My name is < Lam a Litigation Su pport Coordinator for DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER B ANK, as well as its wholly- owned servicing subsidiary DISCOVER PRODUCTS INC. » is responsible for, among other things, maintain ing account records pertaining to Discover Credit Cari d accounts and interacting with Discover Credit Card Account Holder with regard to payments owed on thi jose accounts. ‘This affidavit is made on the basis of my personal knowledge. In my capacity as a Litigation Support Coordinator, | have knowledge regarding, and access to, records tegarding 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 12 6 pages of records 20 from 492, These said 126 pages of records are DISCOVER kept by BANK and DISCOVER PRODUC’ TS INC. in the regular course of business, and the records are updated with information on even' its (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 reasonabl ly soon thereafter. The records were kept in the course of regularly conducted business activi ity 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 statemen ts 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 in formation 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 or her Discover Card after receipt of the terms and conditions. I have persona use of his lly inspected the records pertaining to the Account of the Debtor( 8), including the last periodic statemen t sent to the Debtor(s) by DISCOVER PRODUCTS INC., to as certain 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/haye not paid the amounts due and owing to DISCOVER BANK on the account. The current balance due and owing on the account is $7,197.42. The business records maintained by DISCOVER BANK and 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 as “terms level 29K.” A true and correct copy of these terms and conditions have been provided to DISCOVER BANK’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 BANK has access to a system of records maintained by the United States Department of Defense, which allows DISCOVER BANK 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 BANK to query this system with respect to any account holder prior to initiating a collection action against that account holder, and DISCOVER BANK 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 BANK and 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 BANK and DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is/are: 1240 E PLEASANT RUN RD APT 2107 CEDAR HILL, TX 75104 I declare under penalty of perjury that the foregoing is true and correct. SUBSCRIBED TO AND SWORN TO before me this a U _ day of eg . 2023. Ka Qn Notary Public ity Soe = Sk SHARON SLADER NOTARY PUBLIC - OHIO Y COMMISSION EXPIRES 05-31-28 “uy, . rai EXHIBIT A ICR M.TL29K.LIN,O922 DISC@VER CARDMEMBER AGREEMENT Thank you for choasing Discover’ card. This Agreement explains the ourent terms end conditions of your Acccunt. The enclosed Pricing Schedule s part ofthis Agreement. Please read this Agreement, includin the Pricing Schedule, g carefully. Keep them for yourrecords. Contact us if you have any questions. Wehave!included ‘Definitions section for your ’ reference on page3. ACCEPTANCE OF AGREEMENT ‘You accept this Agreementif youde not cancel your Account within 30 days after receiving a Card, You also accept tris Agreementif you or an Authorized User use the Account. Yournay, however, reject the “Arbitration of Disputes” section as explzined 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 # required by .law, ‘We wil give you advance written notice of the change(s) end aright to reject the changa(3), We wiltnot charge any fee or interest cherge prohibited by law. USING YOUR ACCOUNT Permitted Uses You may use your Accaunt 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 isajoint Account «@ach of you agrees to be liable individually and jointly for the entireamount owed on the Account;and -anynotice we mail to anaddress provided by either ot you for the Account willserve as natice to both of you, Checks Hf 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 youif we decline ta authorizea transaction or if anyone refuses your Card, Check or Account number. Credit Lines We wil tell you what your Account credit lin You must keep your increase or decrease your Account cradit line or your Cash Advance Account balance below your Account credit line. If you do not, we credit line without notice. We may delay incr nea your available may request immediate payment of the armaunt by which: exceed credit by the amount of any payment that we recelve for up to 10 it. We may establish a lower credit line for Cash Advances. We may 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 Fee during eny of the prior six billing periods, Otherwise, the fee is$41, Minimum Payment Due by the Payment Due Date. After that, if you do This fee will never exceed the Minimum Payment Due thet was due not pay the Minimum Pay 'ent Due by the Payment Due Date, we charge yous Late Fee, \e fee is $30, if you ware not charged a Late immediately prior to the date on which the fee was assessed, Returned Payment f you make payment that is not honored by your financialinstitution, we: Payment Fee during any of the prior six bling periods. Otherwise, the fee Fee will charge you a Returned Payment Fee even if the payment is honored \s $41, This fee will never exceed the Minimum Payment Due that was due after we re-submit it. The fee is $30 if you were not charged a Returned immediately priorto the date on which the payment was returnedto us ANNUAL PERCENTAGE RATES (“APRs”) (See your Pricing Schedule for the APRs that apply to your Account) Variable APRs determin ed Your Pricint Schedule may include variable APRs. These APRs are by adding the number of percentage points that we specify to the Prime Rate. Variable APRs will increase or decrease ‘on the first day of the billing period that begins during the same calendar month that the Prime Rate changes. An increase in the APR will increase your interest charges and may increase your Minimum when the Prime Rate changes. The APR change will take effect Payment Due, Your APR will never be less than zero. 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 depasitin the US, billing staternent, + Yournust pay usfor all amounts due on your Account. Thisincludes charges «Ifyou mail your payment to en.address other than the address designated made by Authorized | ‘onyour biling statement, there may bea delay in processing and crediting We mayrefuse to accepta paymentin a foreign currency. f we doaccent it, the payment to yaur Account. ‘we wil charge your Account our cost toconvertit to US. dollars. if @ third party makes @ payment on your Aocourit and we return all ora ‘We can accept late payments, partial payments or payments marked. part of such payment, then we may adjust your Account for any amount “payment in full" or with any other restrictive endorsement without losing retumed. We reserve the right to defand ourselves against any demand ‘any of ourrights under this Agreement. to retum funds we have received, and may agree to a compromise of the: demanded amount as part ofasettlement. Minirum Payment Due Youmay pay the entite New Balance shown on your biling statement at any fees for any debt protectionproduct thatyouenrolledin onorafter 2/2015; time. Each billing periad you must pay at least the Minimum Payment Due Interest Charges;and Late Fees, by the Payment Dus Date shown on your biling statement, The Minimum The Minimum Payment Due may iso include amounts by which you exceed Payment Due willbe any amount past due plus the greater of: your Account credit line. However, it will never exceed the New Balance, + $35;0r When we calculate the Minimum Payment Due, we may subtract from the » 2% of the New Balance shown on yourbiling statement; or New Balance certain fees added to your Account during the billing period, + $20, plus ay of the folowing charges as shown on your biling statement: ‘The Minimum Payment Due is rounded up to the nearest dollar. ©2022 Discover Bank, Member FDIC =i2 MAKING PAYMENTS How We Apply Payments We apply payments and credits at our discretion, including ina manner Each billing period, we will generally apply amounts you pay that exceed ‘Most favorable or convenient for us. In all cases, we vill apply payments. the Minimum Payment Due tebalanceswith higher APRs before balances and creditsas required by applicable law. with lower APRsas of the date we credit your payment. INTEREST CHARGES How We Calculate We calculate interest charges each billng period by fist figuring the “daly How We Figure Your Total interest Charges Interest Charges— balance’ foreach 7 I include - Wemultpiythedalybelanceforeach TransactionCategorybyitsdalyperiodic Daily Balance Method ‘Cashfea: and ifferent Promotional rate Wedothisforeachdayinthebilingperiod Thisglvesustheinterestcharges { ransactions} ‘including current balances, suchas Balance Transfers. How We Figure the Daly Balance for Each Transaction Category for each Transaction Category, To get a dally periodic rate, we divide the APR thet applies to the TransactionCat 365. -Wesstart with the beginning balance for each day. The beginning balance - Weaddup al the daily interest charges. The suis the total interest charge. for the first day of the billng period is yeur balance on the last day of your forthe bilingperiod previous billing period, - Due to rounding or 2 minimum interest charge, the Interest calculation may + We add any interest charges accrued on the previous day's daly balance ‘vary from the interest charge actually assessed. and any new transactions and fees, We add any new transactions or fees How Welnclude Fees sof the later of the Trensaction Date or the frst day of the billing period in Weadd Balance Transfer Fees tothe applicable Balance Transfer Transaction which the transaction or fee posted to your Account. + We subtract any new credits and payments. Category. We add Cash Advance Fees to the applicable Cash Advance Transaction Category. We add all other fees to the standard Purchase + We make other adjustments (including those adjustments required in the Transaction Category. “Paying interest” section). Paying Interest ‘When interest Charges Begin interest charges on New Purchases. New Purchases are Purchases that ‘We begin to impose interest charges on 2 transaction, fee or interest firstappear on the next billing statement. Interest will continue toaccrue charge from the day we add it to the dally balance. We continue to. each day on Purchases that appeared on previous billing statements until impose interest charges unt'| you pay the total ammount you owe us. You you pay the New Balance in full and will be billed in the next biling cycle. ‘canavoid paying interest on Purchases as desoribed below. However, you How We Apply Paymants May Impact Your Graca Period cannot avoid paying interest on Balance Transfers or Cash Advances, If you do not pay your New Balance |n full each month, then, depending How to Avoid Paying Interest on Purchases (“Grace Period") onthe balance to which we apply your payment, youmnay notgetagrace If you pay the New Balance on your current billing statement by the period on new Purchases. Payment Due Date shown on that billing statement, we will nat impose OTHER IMPORTANT INFORMATION Default You are in defaultif: + youfallto comply with the terms of this Agreement or any Agreement you file bankruptcy or another insolvency proceeding Is filed by youor with us or an Affiliate, including failing ta make a required payment agalnst you; when due, exceeding your Account creditline or using your Card or we have reasonable belief that you are unable or unwiling to repay Account foran illegal transaction, your obligations to us; ifyouare in default, we may declare the entire balance of your Account you die or are legally declared incompetent ot incapacitated; 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 reasonableattorneys’ fees, court or other collection costs, and fees and costs of any appeal. Merchant Disputes f youhave a dispute with amerchant, youmay request a credit to your Account. f we resolve the dispute in your favor, we Wilissue a cradit to your Account, ‘Youassigntousyour claim for the credited amountagainst the merchantand/or any third party, At our request, youagreeto provide thisassignmentinwriting, Automatic Account Yourmay setup automatic billing or store your Account information with changes, which may include your billing address, you authorize us to Information Updates an Affiliate, merchant, wallet provider, of other third party ("Permitted provide this updated information to any such Permitted Party at our Party”). If you do, you authorize us to share your Account informetion, discretion. You must contact the Permitted Party directly or remove which may Include your rewards account balance, with the Permitted your credit card information from the Permitted Party website if you Party, regarding the use of your Account, if your Account information wish to stop automatic billing or Account updates, b ‘Our Privacy Policy We send you our Privacy Policy when you open your Account. » how we safe uard its confidentiality and security; Contact us or visit Discover.com if you would like a copy. Please read whenit may e shared with others; and it carefully. it summarizes: » how you can limit our sharing of this information. + the personal information we collect; Credit Reporting You authorize us to get information fram credit reporting agencies and normally report to credit reporting agencies each month, If youbeliave Agency Information other sources for servicing or review of your Account, collection and that information we reported is Inaccurate or incomplete, please write any other use permitted by law, including to consider you for other us at Discaver, P.O. Box 30939, Salt Lake City, UT 84130-0939, Please products and services. We may report the status and payment history inciude your name, address, home phone number and Account of your Account to credit reporting agencies and other creditors, We number. Our Communications You agree that we, our Affiliates, and agents, including service providers you provide. Youagree that the Authorized Partles may contact youusingan with You (Authorized Parties") may contact you, including cals, text message or automatic dialer or pre-recorded voice message If younolonger wish tobe emall,aboutany current or futureaccountsor applications, withrespecttoall contactedon your cell phone by an automated dialer or pre-recorded voice products youhavewithusat any phonenumber er emeii(|) youhaveprovided message, you must provide us written notice cancelling your consentat this tous, (i) from which you contacted us, or (il) which we obtained and believe address: Discover Bank, P.O, Box 30937, Salt Lake City, UT 84130-0937, The ‘Wwe can reach you at, even i your phone provider may charge you message written notice must include: yaurname, mallingaddress, the last four digits of and data rates for calls or texts. You agree that the Authorized Parties may your Account number end the specific cell phone number(s) for which you record or manitor any cals between you and the Authorized Parties, 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 pre-recorded voice message. Unauthorized Use You must notify us immediately if: you believe someone's using your Account ora Card without your your Card is lost or stolen; or permission, =o Cancellation of You may cancel your Account, You will remain responsible for any We may cancel, suspend or not renew your Account at any time. Your Account amount you owe us under this Agreement without notice. Any joint Accountholder may cancel ajaint Account. However, both of you willremain responsible for paying all amounts owed, OTHER IMPORTANT INFORMATION Purchases and Cash #fyoumskea Purchase or Cash Advance inaforeigneurrencywewillconvert , dependingon the countryandcu which the rrency transactionismain de. We Advances in Foreign IttoU.S. dolarsusing@ rate wechoose, Thisrate willeither bea government- use the rateineffecton the conversion date o