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1 LAURA M. D'ANNA ESQ., BAR #266113
PATENAUDE & FELIX, A.P.C.
2
6800 Owensmouth Avenue, Suite 290
3 Canoga Park, CA 91303-4216
California DFPI Debt Collector License #10678-99
4 Tel.: 866-784-8084
Fax: 818-906-7944
5
Attorneys for Plaintiff
6
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF LOS ANGELES, MICHAEL ANTONOVICH ANTELOPE/VALLEY
DIVISION
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10 LOAN ASSET ISSUER II LLC SERIES 2021 Case No.
1,
COMPLAINT FOR MONEY:
11
Plaintiff,
12 Breach of Written Contract
vs.
13 DEMAND AMOUNT: $40,651.41
14 ANGEL DUEN,
And DOES 1 through 5, inclusive,
15
Defendant(s).
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Plaintiff LOAN ASSET ISSUER II LLC SERIES 2021 1 alleges as follows:
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FIRST CAUSE OF ACTION
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(BREACH OF WRITTEN CONTRACT AS TO ALL DEFENDANTS)
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1. Defendant(s) (hereinafter the “Defendant”) entered into a Borrower Agreement
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21 (hereinafter the “Borrower Agreement”) and Loan Agreement and Promissory Note (hereinafter
22 the “Promissory Note”) with Cross River Bank (hereinafter “Cross River Bank”) for the Loan ID
23 Number XXXXX7687 (hereinafter the “Loan”). Attached hereto as Exhibit A and incorporated
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herein by this reference is a true and authentic copy of the Borrower Agreement; attached hereto
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as Exhibit B and incorporated herein by this reference
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
1 is a true and authentic copy of the Loan Agreement, Promissory Note and the Truth in Lending
2 Disclosure Statement. The Borrower Agreement and Promissory Note are hereinafter collectively
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referred to as the "Loan Documents."
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2. At all relevant times, the Defendant and DOES 1 through 5 and each of them
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(hereinafter referred to as the “Defendants”) were registered as a borrower member of the Upgrade,
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7 Inc. platform.
8 3. The true names and capacities whether individual, corporate, associate, or otherwise
9 of defendants sued herein as Does 1 through 5, inclusive, are unknown to Plaintiff at this time of
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filing this complaint and, therefore Plaintiff sues said defendants by such fictitious names.
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Plaintiff will ask leave of the court to amend this complaint to allege their true names and
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capacities when the same shall have been ascertained, together with appropriate charging
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allegations, if necessary. Plaintiff is informed, believes and thereon alleges that each of the
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15 fictitiously named defendants is responsible, in some manner, for the events and happenings
16 hereinafter set forth.
17 4. The Borrower Agreement advises the Defendants that the loan will be serviced by
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Upgrade, Inc.’s national online consumer loan marketplace platform.
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5. Upgrade, Inc., a Delaware corporation, operates a technology-powered online
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marketplace which enables participating borrower members to obtain loans through the Upgrade,
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Inc. platform.
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23 6. The Defendants agreed to Upgrade, Inc. being the servicer of the Loan and further
24 agreed to comply with Upgrade, Inc.’s Terms of Use. Attached hereto as Exhibit C and
25 incorporated herein by this reference is a true and authentic copy of Upgrade, Inc.’s Terms of Use.
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
1 7. Loans through the Upgrade, Inc. platform are funded by Cross River Bank and are
2 subsequently assigned to a participating investor(s). Upgrade, Inc. continues to service such loans
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after they are assigned
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8. The Borrower Agreement and the Promissory Note terms provide that Cross River
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Bank and Upgrade, Inc. have the right, without a prior written consent, to assign the rights,
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7 benefits or obligations to a third party or affiliate and the rights under the Borrower Agreement
8 and the Promissory Note shall inure to the benefit of the successors and assigns. See Section 9 of
9 the Borrower Agreement attached hereto as Exhibit A.
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9. The Promissory Note further provides that the Defendants promised to pay the
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principal loan amount, together with interests, fees and charges as described in the Promissory
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Note to the order of Cross River Bank or any subsequent holder of the Promissory Note. See
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Section 1 of the Promissory Note attached hereto as Exhibit B.
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15 10. Prior to account charge-off, the Promissory Note and the Borrower Agreement were
16 purchased by Upgrade, Inc., sold and assigned to Plaintiff, LOAN ASSET ISSUER II LLC
17 SERIES 2021 1 (hereinafter the “Lender” and or “Plaintiff”) who is registered as an investor
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member of the Upgrade, Inc. platform and is the current holder of the Promissory Note for the
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loan.
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11. Documents related to the loan obtained through the Upgrade, Inc. platform are
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22 generated, signed, and stored electronically. Because Upgrade, Inc. operates only on the Internet,
23 every borrower and investor participant electronically signs a "Terms of Use," thereby agreeing
24 and consenting to transact business with Upgrade, Inc. online and electronically, including
25 electronically receiving all documents, communications, notices, contracts, and agreements, from
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Upgrade, Inc. or the Lender, arising from or relating to the Upgrade, Inc. platform, including any
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loans that the participant requests or receives, any loans that a participant requests to be funded,
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
1 notes that the participant has purchased, and the servicing of a loan, if funded. See Exhibit C
2 attached hereto.
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12. By selecting “Continue” to proceed with the loan application through the Upgrade,
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Inc. platform, each Defendant agreed to the Terms of Use. Acknowledgement of the Terms of Use
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disclosure is captured as proof of that each Defendant was informed, and did accept to use an
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7 electronic process. The Defendants’ consent to the Terms of Use is evidenced by the loan
8 document titled “Disclosure and Consent to Electronic Receipt of Loan Disclosure and Electronic
9 Contracting” (hereinafter “Esign Act Consent”), attached hereto as Exhibit D and incorporated
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herein by this reference.
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13. The Defendant electronically signed the Loan Documents. The Defendants were
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required to electronically check a box to agree to the terms of each of the Loan Documents and
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select “Continue” on the Upgrade, Inc. platform to proceed in accepting the loan. See Exhibit D –
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15 Esign Act Consent.
16 14. On or about November 22, 2022, upon completion of the loan application, the
17 Defendants posted a loan request to the Upgrade, Inc. platform.
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15. In electronically signing the Loan Agreement, the Defendants, expressly
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acknowledged and agreed to the following, set forth in Section 12 of the Borrower Agreement:
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ELECTRONIC TRANSACTIONS AND DISCLOSURES: THIS AGREEMENT
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22 INCLUDES YOUR EXPRESS CONSENT TO ELECTRONIC TRANSACTIONS AND
23 DISCLOSURES, WHICH CONSENT IS CONTAINED IN THE DOCUMENT TITLED
24 “CONSENT TO CONDUCT BUSINESS ELECTRONICALLY,” THE TERMS OF
25 WHICH ARE EXPRESSLY INCORPORATED HEREIN IN THEIR ENTIRETY.”
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(Emphasis added).
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
1 16. During the electronic signing process the Defendants created a unique e-mail and
2 password verification connected to the loan application through the Upgrade, Inc. platform.
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17. In electronically signing the Borrower Agreement, the Defendants further expressly
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agreed and authorize Upgrade, Inc. to act as its attorney-in-fact to execute the Promissory Note, as
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more fully set forth in section 4 of the Borrower Agreement.
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7 18. The Defendants delivered the electronically signed Loan Documents to Plaintiff’s
8 predecessor in interest through the Upgrade, Inc. platform, which could only be accessed by the
9 Defendants through their unique e-mail and password verification.
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19. On or about November 22, 2022 Plaintiff’s predecessor issued and funded the loan
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request of the Defendants.
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20. The Defendants have defaulted under the terms of the Note and related documents
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by failing to make all required payments due thereunder.
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15 21. Plaintiff made demand upon the Defendants to pay the forgoing sums, but
16 Defendants failed to do so.
17 22. Plaintiff has elected to exercise its rights under the loan by declaring all outstanding
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amounts thereunder immediately due and payable. After all payments by the Defendants have
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been applied, there remains due and owing the principal sum of $40,651.41.
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23. Plaintiff, its predecessor in interest, and Upgrade, Inc. have performed all
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conditions, covenants and promises required of them under the Loan Document.
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23 24. The Defendants have defaulted on their obligations to Plaintiff under the Loan
24 Documents as set forth above, despite demand.
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
1 25. Plaintiff has elected to exercise its rights under the Loan Documents by declaring all
2 outstanding amounts thereunder immediately due and payable. There is now due, owing and
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unpaid to Plaintiff the principal sum of $40,651.41.
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26. By the terms of the Loan Documents, the Defendants, have also agreed to pay
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attorneys' fees and costs incurred by Plaintiff in enforcing its rights thereunder. By reason of the
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7 default, it has become necessary for Plaintiff to employ the undersigned counsel to commence and
8 prosecute this action and Plaintiff is entitled to recover its attorneys' fees and costs incurred
9 herein. Plaintiff hereby waives any and all rights and claims to attorney’s fees. Plaintiff is
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entitled to the unpaid principal balance and costs.
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27. The obligations and claims sued herein were made and entered into and are due and
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payable in the above-mentioned Judicial District and County, State of California, and are not
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subject to the provisions of Section 1812.10 and 2984.4 of the California Civil Code and Section
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15 395(b) of the California Code of Civil Procedure.
16 28. The obligations and claims sued herein are not subject to the provisions of Section
17 1788.50 et.seq.
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WHEREFORE, Plaintiff prays judgment against Defendants as follows:
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1. For the sum of $40,651.41;
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2. For costs of suit herein; and
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22 3. For such other and further relief as the Court may deem just and proper.
23 Respectfully submitted,
Dated: February 21, 2024 PATENAUDE & FELIX, APC
24
25
26 By:___________________________________
LAURA D'ANNA, ESQ.
27 Attorney for Plaintiff
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COMPLAINT FOR MONEY
LA_03b Complaint P&F File No. 23-71092
LA_03b Complaint P&F File No. 23-71092
EXHIBIT A
Borrower Agreement
Last Revised: August 19, 2021
Loans made by Cross River Bank, a New Jersey-chartered commercial bank, Member FDIC
This Borrower Agreement ("Agreement") is entered into between you ("you") and Cross River Bank, a New Jersey-chartered FDIC-insured commercial bank ("Bank," "we," or "us"). Upgrade, Inc. (DBAs
include Universal Credit and the names at www.upgrade.com/landing/dba) ("Upgrade") operates a national online consumer loan marketplace platform via its website(s) and mobile application(s),
including www.upgrade.com ("Site"), through which you may request and apply for consumer installment loans from Bank. If you request a loan that is approved by us, then your loan will be governed
by the terms of the Loan Agreement and Promissory Note, attached herein as Exhibit A. We reserve the right to revise the Loan Agreement and Promissory Note from time to time. The version in effect
at the time of your loan request will govern the terms of your loan with us.
1. Use of the Site/Loan Applications. Under this Agreement, you may request unsecured consumer installment loans originated by Bank through the Site. By entering into this Agreement, you agree
to comply with Upgrade's Terms of Use and all other rules or procedures set forth and described on the Site. By submitting a loan request or application, you agree to receive loan proceeds in the
amount requested and you agree to repay timely all installments required under your Loan Agreement and Promissory Note , subject to any right to cancel you may have as described below. You
understand that each loan request or application is subject to Bank's current loan underwriting criteria, which may change from time to time. If you have been approved for and/or received a
new consumer loan from any lender within sixty (60) days of submitting an application through the Site, you may be ineligible for a loan through the Site at the time of application submission. You
may subsequently submit a new application through the Site once you become eligible. You agree that all disputes between you and Bank, Upgrade, or any subsequent holder of your Note will be
resolved through binding arbitration as described in Section 8 below, subject to your right to opt-out. You agree not to request a loan or use any loan proceeds to pay post-secondary education
expenses, to buy or sell securities, or for any illegal purpose. If you are a joint applicant, you understand that both applicant's disclosures will be made available to you through Upgrade's
borrower dashboard.
2. Loan Terms. If your loan is approved and funded, your loan will have a principal loan amount, fees, and interest as described on your federal Truth in Lending Act disclosure ("Truth in Lending
Disclosure") and in your Loan Agreement and Promissory Note. You understand that we will provide you with an initial loan disclosure at the time of application that contains estimates based on
the terms of your loan request, and that those initial estimates are subject to change prior to issuance of your loan. At the time of loan issuance, you will be provided with a final Truth in Lending
Disclosure and Loan Agreement and Promissory Note, which will be deposited into your personal Upgrade account and may be accessed through your Upgrade online dashboard. All loans
obtained through the Site will be funded by the standard Automated Clearing House method ("ACH"), and loan proceeds may take up to four (4) business days to post to your bank account. If your
loan is subject to an origination fee, the fee will be deducted from your loan proceeds at the time of origination. Origination fees will not be refunded in any instance. Origination fees are included
in the total loan amount, which accrues interest over the life of the loan.
3. Authorization to Obtain Your Credit Report. By entering into this Agreement and requesting a loan, you authorize Upgrade and Bank, and their agents, servicers, and assigns to obtain your credit
report from one or more consumer reporting agencies, such as TransUnion, Experian, or Equifax. You acknowledge that Bank and Upgrade may use the credit report for any purpose permitted
by law, including: (i) to authenticate your identity; (ii) to make credit decisions; (iii) to determine your current debt-to-income ratio; and (iv) to obtain your credit score. By proceeding with your
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loan application, you authorize us to contact third-parties to verify the information in your credit report without further notice to you.
4. Limited Power of Attorney. You hereby grant to Upgrade a limited power of attorney and appoint Upgrade and its designees as your true and lawful Attorney-in-Fact and agent, with full power of
delegation, substitution, and re-substitution, for you and in your name, place, and stead, in any and all capacities, to complete and execute the Loan Agreement and Promissory Note in the form
attached herein as Exhibit A, but which incorporates the final accepted terms as indicated on the final Truth in Lending Disclosure deposited into your Upgrade account prior to loan funding. You
further authorize Upgrade to perform each and every act necessary to be done in connection with executing your Loan Agreement and Promissory Note as you might or could do in person, and
to approve, execute, and deliver the provisions of any instruments, documents, agreements, powers, releases, and certificates related to the Loan Agreement and Promissory Note and perform
each and every action required, including but not limited to any legal or beneficial assignment of the Loan Agreement and Promissory Note. This Power of Attorney is limited to the purpose
described above and will expire automatically upon the termination of this Agreement. You may revoke this Power of Attorney by emailing support@upgrade.com or calling 1(855) 997-3100 and
closing your Upgrade account. However, if your loan request or application has been approved, you must revoke this Power of Attorney prior to the loan proceeds being transferred to your bank
account. Once the Loan Agreement and Promissory Note is signed by Upgrade as your Attorney-in-Fact on your behalf, it is deemed executed and is thereafter your binding obligation. If you
chose to revoke this Power of Attorney prior to execution of a Loan Agreement and Promissory Note, we will be unable to proceed with your loan request or application and your request or
application will be considered withdrawn.
5. Military Lending Act. Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of
consumer credit to a member of the Armed Forces and his or her dependents may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit
transaction or account: the costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than
certain application fees for specified credit transactions or accounts); and any participation fees charged (other than certain participation fees for a credit card account). Your payment obligation
is shown on the Truth in Lending Disclosure. Please call 1(855) 511-7676 toll free to have this disclosure provided to you orally. If you are a member of the Armed Forces or a dependent, certain
terms of this Agreement prohibited under the Military Lending Act including the Arbitration Agreement contained in Section 8 of this Agreement, will not apply to you.
6. Loan Servicing. You acknowledge that all loans obtained through the Upgrade platform will be serviced by Upgrade. You also agree that Upgrade may delegate the servicing of your loan to a
third party in its sole discretion without prior consent or notice.
7. TCPA Consent. By providing us with your mobile telephone number, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any
and all purposes arising out of your relationship with us, your use of Upgrade's Site, or any agreement you have entered into with Upgrade or us. You agree we may contact you in any way
including SMS text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using an automated telephone dialing system or an automated texting
system. You understand that automated messages may be played when the telephone is answered, whether by you or someone else. You also agree that representatives may leave you
messages on your answering machine, voice mail, or via text if you don't answer. Standard calling and text messaging rates will apply, based on your cellular telephone carrier and service plan.
During our online application process, you may be asked to provide your prior express written consent to receive prerecorded calls and texts to your mobile device for marketing purposes. We
will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless you provide us with that prior express written consent.
You understand that you do not have to consent to receive any autodialed or prerecorded calls or texts to your mobile phone number in order to use or enjoy our services and products. If you
have already provided your consent, you may withdraw your consent to receive autodialed or prerecorded calls or texts to your mobile phone number by contacting Upgrade by email at
support@upgrade.com or by calling Upgrade customer support at 1-(855) 997-3100.
8. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW.
a. The parties to this Agreement agree that either you or Bank or its service provider Upgrade (or any subsequent assigns of the foregoing), may, at its sole election, require that the sole
and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section (the “Arbitration Provision”), unless you opt out as provided in paragraph
(b) below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with
you), on the one hand, and Bank or Upgrade and/or any assign of Bank or Upgrade (or persons claiming through or connected with Bank or Upgrade and/or any assign of Bank or Upgrade),
on the other hand, relating to or arising out of this Agreement and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent
provided otherwise in the last sentence of paragraph (f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to
arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters
arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is
enforceable.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to Cross River Bank, Attn: Legal Department, 400 Kelby Street, 14th Floor, Fort Lee, NJ
07024, only if received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt-out notice must clearly state that you are
rejecting arbitration; identify the agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send the opt-out notice in
any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is
sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.
c. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the
arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any
countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing
law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
d. If Bank or Upgrade (or any assign of Bank or Upgrade) elects arbitration, Bank or Upgrade (or the assign, as the case may be) shall pay all the administrator's filing costs and
administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the
administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. Bank or Upgrade (or the assign, as the case may be) shall pay the administrator's
hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law
require otherwise, or you request that Bank or Upgrade (or the assign) pay them and Bank or Upgrade agrees (or the assign agrees) to do so. Each party to the arbitration shall bear the
expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration
notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party to the arbitration may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the
arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the
initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration
proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal
Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO
ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS
THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN
A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals
or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in
arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or
interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named
party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this paragraph (f) and any attempt to do so, whether by rule, policy, arbitration
decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this paragraph (f) shall be determined exclusively by a court and not by the administrator or any
arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive
law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the
limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to
reasonably protect confidential information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or assignee; (ii) the
bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or this Agreement to any other person or entity. If any portion of this Arbitration Provision is deemed
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invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective
basis, and the limitations on such proceedings in paragraph (f) are finally adjudicated pursuant to the last sentence of paragraph (f) to be unenforceable, then no arbitration shall be had. In
no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision. THE PARTIES
ACKNOWLEDGE THAT THEY MAY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION
PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY
UPON ELECTION OF ARBITRATION BY ANY PARTY.
i. EXCEPTION: Active duty military servicemembers and their dependents are exempt from arbitration to the extent provided for in the Military Lending Act.
9. Assignment. You may not assign or transfer your rights or obligations under this Agreement without our prior written consent. We may assign or transfer all or a portion of this Agreement and the
related documents to a third party or an affiliate. Our rights under this Agreement shall inure to the benefit of our successors and assigns and your obligations under this Agreement shall be
binding upon your heirs, personal representatives and permitted assigns.
10. Termination. We may terminate this Agreement in our sole discretion, with or without cause, by providing you with notice of the termination. If we determine that you have committed fraud,
made a material misrepresentation, or otherwise failed to abide by the terms of any Agreement you have entered into with us, including the Upgrade Terms of Use, we may, in our sole discretion,
terminate this Agreement and disable your Upgrade account. All loans outstanding at the time of termination shall remain in full force and effect until paid in full, regardless of the termination of
this Agreement.
11. Entire Agreement. This Agreement together with the Upgrade Terms of Use represents the entire agreement between you and Bank regarding your use of the Upgrade platform to request loans
from the bank, and supersedes all prior and contemporaneous communications, whether written or oral, between you and Bank with regard to your use of the Upgrade platform.
12. Electronic Transactions and Disclosures. This Agreement includes your express consent to electronic transactions and disclosures, which consent is contained in the document titled "Consent to
Conduct Business Electronically," the terms of which are expressly incorporated herein in their entirety.
13. Notices. You consent to receive all notices and communications required in connection with this Agreement by email to the email address you registered with us when you created your Upgrade
account. Delivery of such notices and communications shall be deemed to be made upon transmission. By registering an email address with Upgrade, you acknowledge that you have ownership
and control over the email account associated with that address and you understand that we may send personal, private, confidential communications, including but not limited to collections-
related communications, to you at that address. If your email address or any other contact information changes, you acknowledge that you must update your registered email address through
the Upgrade Site, contact Upgrade at support@upgrade.com or call 1-(855) 326-4357 to update your contact information.
14. No Warranties. UNLESS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, WE MAKE NO WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADDITIONALLY, WE MAKE NO CLAIM OR GUARANTEE AS TO THE ACCURACY OF ANY
INFORMATION PROVIDED OR SITE CONTENT. THIS WARRANTY DISCLAIMER IS NOT APPLICABLE TO RESIDENTS OF KANSAS OR WISCONSIN.
15. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF
INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON YOUR
FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY.
16. Choice of Law. Unless expressly provided otherwise in this Agreement, this Agreement shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of
New Jersey without regard to any conflict of laws provision.
17. Registration of Loan Owners. If you receive a loan through the Site, you appoint Upgrade, Inc. as your authorized agent (in such capacity, the “Loan Registrar”) to maintain a book-entry system
(the “Register”) for recording the owner of the Loan and Promissory Note (the “Loan Owners”). The person or persons identified as the Loan Owners in the Register shall be deemed to be the
owner(s) of the Loan and Promissory Note for purposes of receiving payment of principal and interest on such Loan and Promissory Note and for all other purposes. You acknowledge that the
Loan Registrar maintains the only authoritative copy of the Loan and Promissory Note. With respect to any transfer by a Loan Owner of its beneficial interest in the Loan and Promissory Note, the
right to payment of principal and interest on this Loan shall not be effective until the transfer is recorded in the Register.
18. Miscellaneous. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be changed and interpreted so as to best
accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No failure or delay by
either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. Upgrade is not a party to this Agreement, but you agree
that Upgrade is a third-party beneficiary and is entitled to rely on the provisions of this Agreement, including without limitation your representations, covenants, and agreements herein. The
parties agree that there are no third-party beneficiaries other than Upgrade.
19. State Law Notice and Disclosure:
COLORADO RESIDENTS: This Agreement shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any “interest” terms as contemplated
by 12 U.S.C. § 1831d (including origination fees, periodic interest, late fees, and returned check fees) shall be governed by 12 U.S.C. § 1831d and the laws of Bank’s home state.
EXHIBIT A
LOAN AGREEMENT AND PROMISSORY NOTE
Date: _______________, ___ ("Effective Date")
Borrower Name and Address: _______________
1. PROMISE TO PAY. The parties (each, a "Party" and collectively, "Parties") to this Loan Agreement and Promissory Note ("Note" or "Agreement") are the Borrower designated above ("Borrower," "you," or "your") and
Cross River Bank ("Bank"). For value received, you promise to pay to the order of Bank or any subsequent holder ("we," "us," or "Lender") of this Note, the principal loan amount of $XX,XX, together with interest, fees
and charges as set forth below. You promise that you will use the Loan Amount for the purpose you indicated on the loan application to us (the "Application") and not for any post-secondary student loan, to buy or sell
COPY
securities, or any illegal purposes.
2. INTEREST AND PAYMENTS.
a. Payment Timing and Application. Principal and interest shall be paid in _________ monthly installments of $___________ as discussed herein. Your first Monthly Payment will be due on ______________. All other
Monthly Payments will be due on the same day of each following month ("Subsequent Due Date") until ___________, when all principal, interest and fees payable and owing under this Note are due. If your Subsequent
Due Date is the 29th, 30th or 31st and the current month is shorter, your payment will be on the last day of the month. All payments or prepayments will be applied first to accrued interest, then to unpaid principal,
then to our fees, then to costs and expenses payable to us under this Note, including any costs or expenses that we incur related to enforcement of this Note as further described in Section 5 ("Remedies") below.
b. Accrual. Interest on your loan will accrue and be calculated on a 365 day year basis for each full month and each partial month based on the Interest Rate disclosed below applied to the unpaid Loan Amount for
the actual number of days your loan is outstanding for such full or partial month. Interest will start accruing on the Loan Amount on the first calendar day following the Effective Date and will continue to accrue until all
amounts owed under this Note are paid in full. The Finance Charge and Total of Payments listed on the Truth in Lending Disclosures are estimates based upon the assumption that all Monthly Payments will be made
on time. If Monthly Payments are made before or after the applicable due dates, the actual amount of Finance Charge and Total of Payments may be less or more than that what appears in the Truth in Lending
Disclosure.
c. Interest Rate. This Loan bears interest during each calendar month beginning on the Effective Date until paid in full at a rate of XX.XX% per year.
d. Maturity. When your loan matures, you agree to pay in full any unpaid amounts payable under this Note, However, interest continues to accrue on the Loan Amount until you pay in full, even if your loan has
matured.
e. Payment Method. Payment may be made by check or electronic funds transfer. Payment by check may be made by sending a personal check: (1) by standard US Mail to: Upgrade, Inc., Lbx#452210, P.O. Box
52210, Phoenix, AZ 85072-2210, or (2) by courier (FedEx, UPS, etc.) to: Upgrade, Inc., Attn: Batching Dept. lbx#452210, 530 W Alameda Dr., Suite 105, Tempe, AZ 85282. We may change these addresses from time to
time, and we will notify you of the new address for payments.
f. Electronic Check Conversion. If you present a check for payment, you authorize us: (1) to use the information from your check to make an electronic funds transfer from your account; or (2) to process the
transaction as a check. Please note, if we elect to use your check for an electronic funds transfer, funds may be withdrawn from your account as soon as the same day your check is received and you may not receive
the check back from your financial institution.
g. Prepayment. You may make additional payments to prepay your loan in whole or in part at any time without penalty. Prepayments will not change your Monthly Payment, or your obligation to make scheduled
Monthly Payments on each Subsequent Payment Date but your final payment amount may be smaller than the payment amount shown in the Truth in Lending Disclosure or you may reduce the total number of
Monthly Payments required to repay your loan as shown in the Truth in Lending Disclosure.
3. FEES. We will also charge you and you agree to pay the following fees to the extent permitted by applicable law.
a. Insufficient Funds/Returned Payment Fee . You will be charged a non-refundable fee of ten dollars ($10) for each failed electronic or check payment attempt. Your bank may assess its own fee in addition to the
fee we assess.
b. Late Payment Fee . If a payment is more than fifteen (15) days late, we will charge you a nonrefundable late fee of ten dollars ($10.00).
c. Loan Origination Fee . We will deduct a loan origination fee in the amount shown in the Truth in Lending Disclosure from the Principal Amount of Loan as shown in the Itemization of the Amount Financed contained
in the Truth in Lending Disclosure.
d. Debit Card Fee . You are not required to make payments by use of a debit card. If the option is offered and you do use a debit card to make a payment of any kind, a third-party payment processor may charge you
a service fee, which will be disclosed to you prior to your use of the service. Payment by debit card is optional and not a condition of obtaining a loan with us. Fees for this optional service are neither charged nor
collected by Bank or Upgrade, Inc. (“Upgrade”)
4. DEFAULT. Unless expressly provided otherwise in this Note, you will be in default under this Note if:
a. you fail to make any payment under this Note on the date such payment is due;
b. you fail to perform any of your obligations under this Note and you fail to cure such failure to perform to our reasonable satisfaction within thirty (30) days after receiving notice from us of your failure to perform;
c. any representation made by you in, or in connection with your Application or this Note is false in any material respect when made;
d. any of the following occurs (each a "Bankruptcy Event"): (1) you make an application for the appointment of a receiver, trustee or custodian or a receiver, trustee or custodian is appointed for you or a majority of
your assets; (2) you initiate or consent to any legal proceedings under the Bankruptcy Code, or equivalent law providing for the relief of debtors; (3) you make an assignment for the benefit of creditors; or (4) you have
a petition in bankruptcy or similar relief of debtors filed against you, which is not withdrawn or discharged within thirty (30) days of being filing.
e. you die.
5. REMEDIES. Our remedies if you default on this Note include the following (to the fullest extent permitted by law):
a. General. In the event that you are in default under this Note, we may:
(1) declare our loan to you immediately due and payable, except that your loan will become immediately due and payable to us under a Bankruptcy Event, regardless of whether or not we take any action; and
(2) pursue any other remedies available to us under applicable law.
b. Loan Acceleration. If your loan is immediately due and payable, you must promptly pay in full the unpaid principal amount of the loan, all accrued interest, and any other amounts and fees payable under this
Note.
c. Cost Reimbursement; Application of Proceeds. You agree to promptly reimburse us, with interest, for all costs and expenses incurred in exercising our remedies related to this Note, including reasonable attorneys'
fees and the costs of collection after default, to the extent permitted by applicable law. Our rights under this Note are cumulative and we may exercise these rights at any time if you default.
In the event that we exercise any of our rights or remedies under this Note, you will continue to be in default until such time that you pay to us all amounts due to us and you have cured any and all defaults. Our
failure to take any action or delay taking any action related to your default, does not waive, or imply a waiver of, any of our rights under this Note.
6. TERMINATION. This Note will terminate after you have paid in full all amounts payable by you under this Note. The terms of this Note that would, by their express nature, survive the termination of this Note
(including the provisions under "Governing Law and Miscellaneous, Arbitration Agreement," "Notices and Other Information," "Limitation of Liability" and "Termination") will survive and be enforceable under this Note.
7. NOTICES AND OTHER INFORMATION. You consent to receive through electronic delivery, either via electronic mail at your registered email address or delivery to your online account, of all notices, records,
disclosures and other information related to this Note ("Electronic Records") as further provided in the E-Sign Disclosure and Consent to Electronic Receipt of Loan Disclosures provided to you at the time of your
Application. We may in our discretion deliver certain records to you in paper form to your last postal service mailing address of record. You must advise us immediately of any changes or updates to, inactivity of or
operational problems with your registered email address. You agree that the federal Electronic Signatures in Global and National Commerce Act apply to this Note and our ability to conduct business with you by
electronic means. All provisions of any Electronic Records are binding on you just as if they were delivered in paper to one of the addresses listed on the Truth in Lending Disclosure. As described when you provided
your phone number in the Application, we may contact you at any phone number you provide. When you give us your mobile phone number, we have your consent to contact you at that number about your loan. Your
consent allows us to use text messaging, automatic dialing technology and artificial or prerecorded voice messages for informational and loan service calls, but not for sales or telemarketing calls. It may include
contact from companies working on our behalf to service your loan. Message and data rates may apply. You may contact us at any time to change these preferences.
8. WAIVERS. To the fullest extent permitted by applicable law, no extension of time for payment of any part of the amount due under this Note, and no alteration, amendment or waiver of any provision of this Note
shall release, modify, amend, waive, extend, change, discharge, terminate or affect your unconditional liability, and that at any other person or party who may become liable for the pa
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1 LAURA M. D'ANNA ESQ., BAR #266113 PATENAUDE & FELIX, A.P.C. 2 6800 Owensmouth Avenue, Suite 290 3 Canoga Park, CA 91303-4216 California DFPI Debt Collector License #10678-99 4 Tel.: 866-784-8084 Fax: 818-906-7944 5 Attorneys for Plaintiff 6 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF LOS ANGELES, MICHAEL ANTONOVICH ANTELOPE/VALLEY DIVISION 9 10 LOAN ASSET ISSUER II LLC SERIES 2021 Case No. 1, COMPLAINT FOR MONEY: 11 Plaintiff, 12 Breach of Written Contract vs. 13 DEMAND AMOUNT: $40,651.41 14 ANGEL DUEN, And DOES 1 through 5, inclusive, 15 Defendant(s). 16 Plaintiff LOAN ASSET ISSUER II LLC SERIES 2021 1 alleges as follows: 17 FIRST CAUSE OF ACTION 18 (BREACH OF WRITTEN CONTRACT AS TO ALL DEFENDANTS) 19 1. Defendant(s) (hereinafter the “Defendant”) entered into a Borrower Agreement 20 21 (hereinafter the “Borrower Agreement”) and Loan Agreement and Promissory Note (hereinafter 22 the “Promissory Note”) with Cross River Bank (hereinafter “Cross River Bank”) for the Loan ID 23 Number XXXXX7687 (hereinafter the “Loan”). Attached hereto as Exhibit A and incorporated 24 herein by this reference is a true and authentic copy of the Borrower Agreement; attached hereto 25 as Exhibit B and incorporated herein by this reference 26 27 28 Page 1 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 1 is a true and authentic copy of the Loan Agreement, Promissory Note and the Truth in Lending 2 Disclosure Statement. The Borrower Agreement and Promissory Note are hereinafter collectively 3 referred to as the "Loan Documents." 4 2. At all relevant times, the Defendant and DOES 1 through 5 and each of them 5 (hereinafter referred to as the “Defendants”) were registered as a borrower member of the Upgrade, 6 7 Inc. platform. 8 3. The true names and capacities whether individual, corporate, associate, or otherwise 9 of defendants sued herein as Does 1 through 5, inclusive, are unknown to Plaintiff at this time of 10 filing this complaint and, therefore Plaintiff sues said defendants by such fictitious names. 11 Plaintiff will ask leave of the court to amend this complaint to allege their true names and 12 capacities when the same shall have been ascertained, together with appropriate charging 13 allegations, if necessary. Plaintiff is informed, believes and thereon alleges that each of the 14 15 fictitiously named defendants is responsible, in some manner, for the events and happenings 16 hereinafter set forth. 17 4. The Borrower Agreement advises the Defendants that the loan will be serviced by 18 Upgrade, Inc.’s national online consumer loan marketplace platform. 19 5. Upgrade, Inc., a Delaware corporation, operates a technology-powered online 20 marketplace which enables participating borrower members to obtain loans through the Upgrade, 21 Inc. platform. 22 23 6. The Defendants agreed to Upgrade, Inc. being the servicer of the Loan and further 24 agreed to comply with Upgrade, Inc.’s Terms of Use. Attached hereto as Exhibit C and 25 incorporated herein by this reference is a true and authentic copy of Upgrade, Inc.’s Terms of Use. 26 27 28 Page 2 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 1 7. Loans through the Upgrade, Inc. platform are funded by Cross River Bank and are 2 subsequently assigned to a participating investor(s). Upgrade, Inc. continues to service such loans 3 after they are assigned 4 8. The Borrower Agreement and the Promissory Note terms provide that Cross River 5 Bank and Upgrade, Inc. have the right, without a prior written consent, to assign the rights, 6 7 benefits or obligations to a third party or affiliate and the rights under the Borrower Agreement 8 and the Promissory Note shall inure to the benefit of the successors and assigns. See Section 9 of 9 the Borrower Agreement attached hereto as Exhibit A. 10 9. The Promissory Note further provides that the Defendants promised to pay the 11 principal loan amount, together with interests, fees and charges as described in the Promissory 12 Note to the order of Cross River Bank or any subsequent holder of the Promissory Note. See 13 Section 1 of the Promissory Note attached hereto as Exhibit B. 14 15 10. Prior to account charge-off, the Promissory Note and the Borrower Agreement were 16 purchased by Upgrade, Inc., sold and assigned to Plaintiff, LOAN ASSET ISSUER II LLC 17 SERIES 2021 1 (hereinafter the “Lender” and or “Plaintiff”) who is registered as an investor 18 member of the Upgrade, Inc. platform and is the current holder of the Promissory Note for the 19 loan. 20 11. Documents related to the loan obtained through the Upgrade, Inc. platform are 21 22 generated, signed, and stored electronically. Because Upgrade, Inc. operates only on the Internet, 23 every borrower and investor participant electronically signs a "Terms of Use," thereby agreeing 24 and consenting to transact business with Upgrade, Inc. online and electronically, including 25 electronically receiving all documents, communications, notices, contracts, and agreements, from 26 Upgrade, Inc. or the Lender, arising from or relating to the Upgrade, Inc. platform, including any 27 loans that the participant requests or receives, any loans that a participant requests to be funded, 28 Page 3 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 1 notes that the participant has purchased, and the servicing of a loan, if funded. See Exhibit C 2 attached hereto. 3 12. By selecting “Continue” to proceed with the loan application through the Upgrade, 4 Inc. platform, each Defendant agreed to the Terms of Use. Acknowledgement of the Terms of Use 5 disclosure is captured as proof of that each Defendant was informed, and did accept to use an 6 7 electronic process. The Defendants’ consent to the Terms of Use is evidenced by the loan 8 document titled “Disclosure and Consent to Electronic Receipt of Loan Disclosure and Electronic 9 Contracting” (hereinafter “Esign Act Consent”), attached hereto as Exhibit D and incorporated 10 herein by this reference. 11 13. The Defendant electronically signed the Loan Documents. The Defendants were 12 required to electronically check a box to agree to the terms of each of the Loan Documents and 13 select “Continue” on the Upgrade, Inc. platform to proceed in accepting the loan. See Exhibit D – 14 15 Esign Act Consent. 16 14. On or about November 22, 2022, upon completion of the loan application, the 17 Defendants posted a loan request to the Upgrade, Inc. platform. 18 15. In electronically signing the Loan Agreement, the Defendants, expressly 19 acknowledged and agreed to the following, set forth in Section 12 of the Borrower Agreement: 20 ELECTRONIC TRANSACTIONS AND DISCLOSURES: THIS AGREEMENT 21 22 INCLUDES YOUR EXPRESS CONSENT TO ELECTRONIC TRANSACTIONS AND 23 DISCLOSURES, WHICH CONSENT IS CONTAINED IN THE DOCUMENT TITLED 24 “CONSENT TO CONDUCT BUSINESS ELECTRONICALLY,” THE TERMS OF 25 WHICH ARE EXPRESSLY INCORPORATED HEREIN IN THEIR ENTIRETY.” 26 (Emphasis added). 27 28 Page 4 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 1 16. During the electronic signing process the Defendants created a unique e-mail and 2 password verification connected to the loan application through the Upgrade, Inc. platform. 3 17. In electronically signing the Borrower Agreement, the Defendants further expressly 4 agreed and authorize Upgrade, Inc. to act as its attorney-in-fact to execute the Promissory Note, as 5 more fully set forth in section 4 of the Borrower Agreement. 6 7 18. The Defendants delivered the electronically signed Loan Documents to Plaintiff’s 8 predecessor in interest through the Upgrade, Inc. platform, which could only be accessed by the 9 Defendants through their unique e-mail and password verification. 10 19. On or about November 22, 2022 Plaintiff’s predecessor issued and funded the loan 11 request of the Defendants. 12 20. The Defendants have defaulted under the terms of the Note and related documents 13 by failing to make all required payments due thereunder. 14 15 21. Plaintiff made demand upon the Defendants to pay the forgoing sums, but 16 Defendants failed to do so. 17 22. Plaintiff has elected to exercise its rights under the loan by declaring all outstanding 18 amounts thereunder immediately due and payable. After all payments by the Defendants have 19 been applied, there remains due and owing the principal sum of $40,651.41. 20 23. Plaintiff, its predecessor in interest, and Upgrade, Inc. have performed all 21 conditions, covenants and promises required of them under the Loan Document. 22 23 24. The Defendants have defaulted on their obligations to Plaintiff under the Loan 24 Documents as set forth above, despite demand. 25 26 27 28 Page 5 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 1 25. Plaintiff has elected to exercise its rights under the Loan Documents by declaring all 2 outstanding amounts thereunder immediately due and payable. There is now due, owing and 3 unpaid to Plaintiff the principal sum of $40,651.41. 4 26. By the terms of the Loan Documents, the Defendants, have also agreed to pay 5 attorneys' fees and costs incurred by Plaintiff in enforcing its rights thereunder. By reason of the 6 7 default, it has become necessary for Plaintiff to employ the undersigned counsel to commence and 8 prosecute this action and Plaintiff is entitled to recover its attorneys' fees and costs incurred 9 herein. Plaintiff hereby waives any and all rights and claims to attorney’s fees. Plaintiff is 10 entitled to the unpaid principal balance and costs. 11 27. The obligations and claims sued herein were made and entered into and are due and 12 payable in the above-mentioned Judicial District and County, State of California, and are not 13 subject to the provisions of Section 1812.10 and 2984.4 of the California Civil Code and Section 14 15 395(b) of the California Code of Civil Procedure. 16 28. The obligations and claims sued herein are not subject to the provisions of Section 17 1788.50 et.seq. 18 WHEREFORE, Plaintiff prays judgment against Defendants as follows: 19 1. For the sum of $40,651.41; 20 2. For costs of suit herein; and 21 22 3. For such other and further relief as the Court may deem just and proper. 23 Respectfully submitted, Dated: February 21, 2024 PATENAUDE & FELIX, APC 24 25 26 By:___________________________________ LAURA D'ANNA, ESQ. 27 Attorney for Plaintiff 28 Page 6 COMPLAINT FOR MONEY LA_03b Complaint P&F File No. 23-71092 LA_03b Complaint P&F File No. 23-71092 EXHIBIT A Borrower Agreement Last Revised: August 19, 2021 Loans made by Cross River Bank, a New Jersey-chartered commercial bank, Member FDIC This Borrower Agreement ("Agreement") is entered into between you ("you") and Cross River Bank, a New Jersey-chartered FDIC-insured commercial bank ("Bank," "we," or "us"). Upgrade, Inc. (DBAs include Universal Credit and the names at www.upgrade.com/landing/dba) ("Upgrade") operates a national online consumer loan marketplace platform via its website(s) and mobile application(s), including www.upgrade.com ("Site"), through which you may request and apply for consumer installment loans from Bank. If you request a loan that is approved by us, then your loan will be governed by the terms of the Loan Agreement and Promissory Note, attached herein as Exhibit A. We reserve the right to revise the Loan Agreement and Promissory Note from time to time. The version in effect at the time of your loan request will govern the terms of your loan with us. 1. Use of the Site/Loan Applications. Under this Agreement, you may request unsecured consumer installment loans originated by Bank through the Site. By entering into this Agreement, you agree to comply with Upgrade's Terms of Use and all other rules or procedures set forth and described on the Site. By submitting a loan request or application, you agree to receive loan proceeds in the amount requested and you agree to repay timely all installments required under your Loan Agreement and Promissory Note , subject to any right to cancel you may have as described below. You understand that each loan request or application is subject to Bank's current loan underwriting criteria, which may change from time to time. If you have been approved for and/or received a new consumer loan from any lender within sixty (60) days of submitting an application through the Site, you may be ineligible for a loan through the Site at the time of application submission. You may subsequently submit a new application through the Site once you become eligible. You agree that all disputes between you and Bank, Upgrade, or any subsequent holder of your Note will be resolved through binding arbitration as described in Section 8 below, subject to your right to opt-out. You agree not to request a loan or use any loan proceeds to pay post-secondary education expenses, to buy or sell securities, or for any illegal purpose. If you are a joint applicant, you understand that both applicant's disclosures will be made available to you through Upgrade's borrower dashboard. 2. Loan Terms. If your loan is approved and funded, your loan will have a principal loan amount, fees, and interest as described on your federal Truth in Lending Act disclosure ("Truth in Lending Disclosure") and in your Loan Agreement and Promissory Note. You understand that we will provide you with an initial loan disclosure at the time of application that contains estimates based on the terms of your loan request, and that those initial estimates are subject to change prior to issuance of your loan. At the time of loan issuance, you will be provided with a final Truth in Lending Disclosure and Loan Agreement and Promissory Note, which will be deposited into your personal Upgrade account and may be accessed through your Upgrade online dashboard. All loans obtained through the Site will be funded by the standard Automated Clearing House method ("ACH"), and loan proceeds may take up to four (4) business days to post to your bank account. If your loan is subject to an origination fee, the fee will be deducted from your loan proceeds at the time of origination. Origination fees will not be refunded in any instance. Origination fees are included in the total loan amount, which accrues interest over the life of the loan. 3. Authorization to Obtain Your Credit Report. By entering into this Agreement and requesting a loan, you authorize Upgrade and Bank, and their agents, servicers, and assigns to obtain your credit report from one or more consumer reporting agencies, such as TransUnion, Experian, or Equifax. You acknowledge that Bank and Upgrade may use the credit report for any purpose permitted by law, including: (i) to authenticate your identity; (ii) to make credit decisions; (iii) to determine your current debt-to-income ratio; and (iv) to obtain your credit score. By proceeding with your COPY loan application, you authorize us to contact third-parties to verify the information in your credit report without further notice to you. 4. Limited Power of Attorney. You hereby grant to Upgrade a limited power of attorney and appoint Upgrade and its designees as your true and lawful Attorney-in-Fact and agent, with full power of delegation, substitution, and re-substitution, for you and in your name, place, and stead, in any and all capacities, to complete and execute the Loan Agreement and Promissory Note in the form attached herein as Exhibit A, but which incorporates the final accepted terms as indicated on the final Truth in Lending Disclosure deposited into your Upgrade account prior to loan funding. You further authorize Upgrade to perform each and every act necessary to be done in connection with executing your Loan Agreement and Promissory Note as you might or could do in person, and to approve, execute, and deliver the provisions of any instruments, documents, agreements, powers, releases, and certificates related to the Loan Agreement and Promissory Note and perform each and every action required, including but not limited to any legal or beneficial assignment of the Loan Agreement and Promissory Note. This Power of Attorney is limited to the purpose described above and will expire automatically upon the termination of this Agreement. You may revoke this Power of Attorney by emailing support@upgrade.com or calling 1(855) 997-3100 and closing your Upgrade account. However, if your loan request or application has been approved, you must revoke this Power of Attorney prior to the loan proceeds being transferred to your bank account. Once the Loan Agreement and Promissory Note is signed by Upgrade as your Attorney-in-Fact on your behalf, it is deemed executed and is thereafter your binding obligation. If you chose to revoke this Power of Attorney prior to execution of a Loan Agreement and Promissory Note, we will be unable to proceed with your loan request or application and your request or application will be considered withdrawn. 5. Military Lending Act. Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependents may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: the costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fees charged (other than certain participation fees for a credit card account). Your payment obligation is shown on the Truth in Lending Disclosure. Please call 1(855) 511-7676 toll free to have this disclosure provided to you orally. If you are a member of the Armed Forces or a dependent, certain terms of this Agreement prohibited under the Military Lending Act including the Arbitration Agreement contained in Section 8 of this Agreement, will not apply to you. 6. Loan Servicing. You acknowledge that all loans obtained through the Upgrade platform will be serviced by Upgrade. You also agree that Upgrade may delegate the servicing of your loan to a third party in its sole discretion without prior consent or notice. 7. TCPA Consent. By providing us with your mobile telephone number, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of your relationship with us, your use of Upgrade's Site, or any agreement you have entered into with Upgrade or us. You agree we may contact you in any way including SMS text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using an automated telephone dialing system or an automated texting system. You understand that automated messages may be played when the telephone is answered, whether by you or someone else. You also agree that representatives may leave you messages on your answering machine, voice mail, or via text if you don't answer. Standard calling and text messaging rates will apply, based on your cellular telephone carrier and service plan. During our online application process, you may be asked to provide your prior express written consent to receive prerecorded calls and texts to your mobile device for marketing purposes. We will not use autodialed or prerecorded calls or texts to contact you for marketing purposes unless you provide us with that prior express written consent. You understand that you do not have to consent to receive any autodialed or prerecorded calls or texts to your mobile phone number in order to use or enjoy our services and products. If you have already provided your consent, you may withdraw your consent to receive autodialed or prerecorded calls or texts to your mobile phone number by contacting Upgrade by email at support@upgrade.com or by calling Upgrade customer support at 1-(855) 997-3100. 8. Arbitration Agreement. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW. a. The parties to this Agreement agree that either you or Bank or its service provider Upgrade (or any subsequent assigns of the foregoing), may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section (the “Arbitration Provision”), unless you opt out as provided in paragraph (b) below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and Bank or Upgrade and/or any assign of Bank or Upgrade (or persons claiming through or connected with Bank or Upgrade and/or any assign of Bank or Upgrade), on the other hand, relating to or arising out of this Agreement and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of paragraph (f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to Cross River Bank, Attn: Legal Department, 400 Kelby Street, 14th Floor, Fort Lee, NJ 07024, only if received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt-out notice must clearly state that you are rejecting arbitration; identify the agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send the opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf. c. The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. d. If Bank or Upgrade (or any assign of Bank or Upgrade) elects arbitration, Bank or Upgrade (or the assign, as the case may be) shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. Bank or Upgrade (or the assign, as the case may be) shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that Bank or Upgrade (or the assign) pay them and Bank or Upgrade agrees (or the assign agrees) to do so. Each party to the arbitration shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein. e. Within 30 days of a final award by the arbitrator, any party to the arbitration may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the “FAA”), and may be entered as a judgment in any court of competent jurisdiction. f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this paragraph (f) and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this paragraph (f) shall be determined exclusively by a court and not by the administrator or any arbitrator. g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information. h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or assignee; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or this Agreement to any other person or entity. If any portion of this Arbitration Provision is deemed COPY invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in paragraph (f) are finally adjudicated pursuant to the last sentence of paragraph (f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision. THE PARTIES ACKNOWLEDGE THAT THEY MAY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY. i. EXCEPTION: Active duty military servicemembers and their dependents are exempt from arbitration to the extent provided for in the Military Lending Act. 9. Assignment. You may not assign or transfer your rights or obligations under this Agreement without our prior written consent. We may assign or transfer all or a portion of this Agreement and the related documents to a third party or an affiliate. Our rights under this Agreement shall inure to the benefit of our successors and assigns and your obligations under this Agreement shall be binding upon your heirs, personal representatives and permitted assigns. 10. Termination. We may terminate this Agreement in our sole discretion, with or without cause, by providing you with notice of the termination. If we determine that you have committed fraud, made a material misrepresentation, or otherwise failed to abide by the terms of any Agreement you have entered into with us, including the Upgrade Terms of Use, we may, in our sole discretion, terminate this Agreement and disable your Upgrade account. All loans outstanding at the time of termination shall remain in full force and effect until paid in full, regardless of the termination of this Agreement. 11. Entire Agreement. This Agreement together with the Upgrade Terms of Use represents the entire agreement between you and Bank regarding your use of the Upgrade platform to request loans from the bank, and supersedes all prior and contemporaneous communications, whether written or oral, between you and Bank with regard to your use of the Upgrade platform. 12. Electronic Transactions and Disclosures. This Agreement includes your express consent to electronic transactions and disclosures, which consent is contained in the document titled "Consent to Conduct Business Electronically," the terms of which are expressly incorporated herein in their entirety. 13. Notices. You consent to receive all notices and communications required in connection with this Agreement by email to the email address you registered with us when you created your Upgrade account. Delivery of such notices and communications shall be deemed to be made upon transmission. By registering an email address with Upgrade, you acknowledge that you have ownership and control over the email account associated with that address and you understand that we may send personal, private, confidential communications, including but not limited to collections- related communications, to you at that address. If your email address or any other contact information changes, you acknowledge that you must update your registered email address through the Upgrade Site, contact Upgrade at support@upgrade.com or call 1-(855) 326-4357 to update your contact information. 14. No Warranties. UNLESS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, WE MAKE NO WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ADDITIONALLY, WE MAKE NO CLAIM OR GUARANTEE AS TO THE ACCURACY OF ANY INFORMATION PROVIDED OR SITE CONTENT. THIS WARRANTY DISCLAIMER IS NOT APPLICABLE TO RESIDENTS OF KANSAS OR WISCONSIN. 15. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY. 16. Choice of Law. Unless expressly provided otherwise in this Agreement, this Agreement shall be governed by federal law and, to the extent not preempted by federal law, the laws of the State of New Jersey without regard to any conflict of laws provision. 17. Registration of Loan Owners. If you receive a loan through the Site, you appoint Upgrade, Inc. as your authorized agent (in such capacity, the “Loan Registrar”) to maintain a book-entry system (the “Register”) for recording the owner of the Loan and Promissory Note (the “Loan Owners”). The person or persons identified as the Loan Owners in the Register shall be deemed to be the owner(s) of the Loan and Promissory Note for purposes of receiving payment of principal and interest on such Loan and Promissory Note and for all other purposes. You acknowledge that the Loan Registrar maintains the only authoritative copy of the Loan and Promissory Note. With respect to any transfer by a Loan Owner of its beneficial interest in the Loan and Promissory Note, the right to payment of principal and interest on this Loan shall not be effective until the transfer is recorded in the Register. 18. Miscellaneous. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. Upgrade is not a party to this Agreement, but you agree that Upgrade is a third-party beneficiary and is entitled to rely on the provisions of this Agreement, including without limitation your representations, covenants, and agreements herein. The parties agree that there are no third-party beneficiaries other than Upgrade. 19. State Law Notice and Disclosure: COLORADO RESIDENTS: This Agreement shall be governed by Colorado law, except where otherwise preempted or authorized by federal law, including that any “interest” terms as contemplated by 12 U.S.C. § 1831d (including origination fees, periodic interest, late fees, and returned check fees) shall be governed by 12 U.S.C. § 1831d and the laws of Bank’s home state. EXHIBIT A LOAN AGREEMENT AND PROMISSORY NOTE Date: _______________, ___ ("Effective Date") Borrower Name and Address: _______________ 1. PROMISE TO PAY. The parties (each, a "Party" and collectively, "Parties") to this Loan Agreement and Promissory Note ("Note" or "Agreement") are the Borrower designated above ("Borrower," "you," or "your") and Cross River Bank ("Bank"). For value received, you promise to pay to the order of Bank or any subsequent holder ("we," "us," or "Lender") of this Note, the principal loan amount of $XX,XX, together with interest, fees and charges as set forth below. You promise that you will use the Loan Amount for the purpose you indicated on the loan application to us (the "Application") and not for any post-secondary student loan, to buy or sell COPY securities, or any illegal purposes. 2. INTEREST AND PAYMENTS. a. Payment Timing and Application. Principal and interest shall be paid in _________ monthly installments of $___________ as discussed herein. Your first Monthly Payment will be due on ______________. All other Monthly Payments will be due on the same day of each following month ("Subsequent Due Date") until ___________, when all principal, interest and fees payable and owing under this Note are due. If your Subsequent Due Date is the 29th, 30th or 31st and the current month is shorter, your payment will be on the last day of the month. All payments or prepayments will be applied first to accrued interest, then to unpaid principal, then to our fees, then to costs and expenses payable to us under this Note, including any costs or expenses that we incur related to enforcement of this Note as further described in Section 5 ("Remedies") below. b. Accrual. Interest on your loan will accrue and be calculated on a 365 day year basis for each full month and each partial month based on the Interest Rate disclosed below applied to the unpaid Loan Amount for the actual number of days your loan is outstanding for such full or partial month. Interest will start accruing on the Loan Amount on the first calendar day following the Effective Date and will continue to accrue until all amounts owed under this Note are paid in full. The Finance Charge and Total of Payments listed on the Truth in Lending Disclosures are estimates based upon the assumption that all Monthly Payments will be made on time. If Monthly Payments are made before or after the applicable due dates, the actual amount of Finance Charge and Total of Payments may be less or more than that what appears in the Truth in Lending Disclosure. c. Interest Rate. This Loan bears interest during each calendar month beginning on the Effective Date until paid in full at a rate of XX.XX% per year. d. Maturity. When your loan matures, you agree to pay in full any unpaid amounts payable under this Note, However, interest continues to accrue on the Loan Amount until you pay in full, even if your loan has matured. e. Payment Method. Payment may be made by check or electronic funds transfer. Payment by check may be made by sending a personal check: (1) by standard US Mail to: Upgrade, Inc., Lbx#452210, P.O. Box 52210, Phoenix, AZ 85072-2210, or (2) by courier (FedEx, UPS, etc.) to: Upgrade, Inc., Attn: Batching Dept. lbx#452210, 530 W Alameda Dr., Suite 105, Tempe, AZ 85282. We may change these addresses from time to time, and we will notify you of the new address for payments. f. Electronic Check Conversion. If you present a check for payment, you authorize us: (1) to use the information from your check to make an electronic funds transfer from your account; or (2) to process the transaction as a check. Please note, if we elect to use your check for an electronic funds transfer, funds may be withdrawn from your account as soon as the same day your check is received and you may not receive the check back from your financial institution. g. Prepayment. You may make additional payments to prepay your loan in whole or in part at any time without penalty. Prepayments will not change your Monthly Payment, or your obligation to make scheduled Monthly Payments on each Subsequent Payment Date but your final payment amount may be smaller than the payment amount shown in the Truth in Lending Disclosure or you may reduce the total number of Monthly Payments required to repay your loan as shown in the Truth in Lending Disclosure. 3. FEES. We will also charge you and you agree to pay the following fees to the extent permitted by applicable law. a. Insufficient Funds/Returned Payment Fee . You will be charged a non-refundable fee of ten dollars ($10) for each failed electronic or check payment attempt. Your bank may assess its own fee in addition to the fee we assess. b. Late Payment Fee . If a payment is more than fifteen (15) days late, we will charge you a nonrefundable late fee of ten dollars ($10.00). c. Loan Origination Fee . We will deduct a loan origination fee in the amount shown in the Truth in Lending Disclosure from the Principal Amount of Loan as shown in the Itemization of the Amount Financed contained in the Truth in Lending Disclosure. d. Debit Card Fee . You are not required to make payments by use of a debit card. If the option is offered and you do use a debit card to make a payment of any kind, a third-party payment processor may charge you a service fee, which will be disclosed to you prior to your use of the service. Payment by debit card is optional and not a condition of obtaining a loan with us. Fees for this optional service are neither charged nor collected by Bank or Upgrade, Inc. (“Upgrade”) 4. DEFAULT. Unless expressly provided otherwise in this Note, you will be in default under this Note if: a. you fail to make any payment under this Note on the date such payment is due; b. you fail to perform any of your obligations under this Note and you fail to cure such failure to perform to our reasonable satisfaction within thirty (30) days after receiving notice from us of your failure to perform; c. any representation made by you in, or in connection with your Application or this Note is false in any material respect when made; d. any of the following occurs (each a "Bankruptcy Event"): (1) you make an application for the appointment of a receiver, trustee or custodian or a receiver, trustee or custodian is appointed for you or a majority of your assets; (2) you initiate or consent to any legal proceedings under the Bankruptcy Code, or equivalent law providing for the relief of debtors; (3) you make an assignment for the benefit of creditors; or (4) you have a petition in bankruptcy or similar relief of debtors filed against you, which is not withdrawn or discharged within thirty (30) days of being filing. e. you die. 5. REMEDIES. Our remedies if you default on this Note include the following (to the fullest extent permitted by law): a. General. In the event that you are in default under this Note, we may: (1) declare our loan to you immediately due and payable, except that your loan will become immediately due and payable to us under a Bankruptcy Event, regardless of whether or not we take any action; and (2) pursue any other remedies available to us under applicable law. b. Loan Acceleration. If your loan is immediately due and payable, you must promptly pay in full the unpaid principal amount of the loan, all accrued interest, and any other amounts and fees payable under this Note. c. Cost Reimbursement; Application of Proceeds. You agree to promptly reimburse us, with interest, for all costs and expenses incurred in exercising our remedies related to this Note, including reasonable attorneys' fees and the costs of collection after default, to the extent permitted by applicable law. Our rights under this Note are cumulative and we may exercise these rights at any time if you default. In the event that we exercise any of our rights or remedies under this Note, you will continue to be in default until such time that you pay to us all amounts due to us and you have cured any and all defaults. Our failure to take any action or delay taking any action related to your default, does not waive, or imply a waiver of, any of our rights under this Note. 6. TERMINATION. This Note will terminate after you have paid in full all amounts payable by you under this Note. The terms of this Note that would, by their express nature, survive the termination of this Note (including the provisions under "Governing Law and Miscellaneous, Arbitration Agreement," "Notices and Other Information," "Limitation of Liability" and "Termination") will survive and be enforceable under this Note. 7. NOTICES AND OTHER INFORMATION. You consent to receive through electronic delivery, either via electronic mail at your registered email address or delivery to your online account, of all notices, records, disclosures and other information related to this Note ("Electronic Records") as further provided in the E-Sign Disclosure and Consent to Electronic Receipt of Loan Disclosures provided to you at the time of your Application. We may in our discretion deliver certain records to you in paper form to your last postal service mailing address of record. You must advise us immediately of any changes or updates to, inactivity of or operational problems with your registered email address. You agree that the federal Electronic Signatures in Global and National Commerce Act apply to this Note and our ability to conduct business with you by electronic means. All provisions of any Electronic Records are binding on you just as if they were delivered in paper to one of the addresses listed on the Truth in Lending Disclosure. As described when you provided your phone number in the Application, we may contact you at any phone number you provide. When you give us your mobile phone number, we have your consent to contact you at that number about your loan. Your consent allows us to use text messaging, automatic dialing technology and artificial or prerecorded voice messages for informational and loan service calls, but not for sales or telemarketing calls. It may include contact from companies working on our behalf to service your loan. Message and data rates may apply. You may contact us at any time to change these preferences. 8. WAIVERS. To the fullest extent permitted by applicable law, no extension of time for payment of any part of the amount due under this Note, and no alteration, amendment or waiver of any provision of this Note shall release, modify, amend, waive, extend, change, discharge, terminate or affect your unconditional liability, and that at any other person or party who may become liable for the pa