Complaint Limited Up to 10KCal. Super. - 6th Dist.March 18, 2021PLD-C-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): JANET L. BROWN CA# 208602 / JESSICA M. GARCIA CA# 314298 / WILLIAM BELLOR-YEH CA# 331017 ZWICKER & ASSOCIATES. P.C.. A Law Firm Enqaqed in Debt Collection 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 TELEPHONE No.: (925)689-7070 TELEPHONE No.: (925)689-7070 E-MAILADDRESS (Optional): ZACNLITIGATION@ZW|CKERPC.COM ATTORNEY FOR (Name): DISCOVER BANK _ Fl LED FOR COURT USE ONLY 3/18/2021 8:00 AM 3lerk of Court Superior Court of CA, County of Santa Clara 21 CV379047 Reviewed By: K. Himes SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREET ADDRESS: 191 N. FIRST STREET MAILING ADDRESS: 191 N. FIRST STREET CITY AND ZIP CODE: SAN JOSE, CA 951 13-1 090 BRANCH NAME: MAIN COURTHOUSE PLAINTIFF: DISCOVER BANK DEFENDANT: KEVIN AGBAYANI and DOES 1-10, inclusive D DOEs1To 10 CONTRACT g COMPLAINT D AMENDED COMPLAINT(Number): D CROSS-COMPLAINT D AMENDED CROSS-COMPLAINT (Number): Jurisdiction (check all that apply): ACTION IS A LIMITED CIVIL CASE Amount demanded does not exceed $10,000 exceeds $10,000 but does not exceed $25,000 ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) D ACTION IS RECLASSIFIED by this amended complaint or cross-complaint D from limited to unlimited D from unlimited to limited CASE NUMBER: 21 CV379047 1. Plaintiff" (name or names): DISCOVER BANK alleges causes of action against defendant* (name or names): KEVIN AGBAYANI and DOES 1-10, inclusive 2. This pleading, including attachments and exhibits, consists of the following number of pages: 10 3. a. Each plaintiff named above is a competent adult g except plaintiff (name): DISCOVER BANK (1) D a corporation qualified to do business in California (2) D an unincorporated entity (describe): (3) E other (specify): Plaintiff is a FDIC-insured Delaware State Bank. b. D Plaintiff (name).- a. D has complied with the fictitious business name laws and is doing business under the fictitious name (specify): b.D QB 4. a. Each defendant named above is a natural person has complied with all licensing requirements as a licensed (specify): Information about additional plaintiffs who are not competent adults is shown in Attachment 3c. a business organization, form unknown a corporation an unincorporated entity (describe): a public entity (describe): D except defendant (name): D except defendant (name): (1) D a business organization, form unknown (1) D (2) D a corporation (2) D (3) D an unincorporated entity (describe): (3) D (4) D a public entity (describe): (4) D (5) D other (specify): (5) D * If this form is used as a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. other (specify): Page 1 of 2 Form Approved for Optional Use Judicial Council 0f California PLD-C-OOI [Rev. January 1, 2007] COMPLAINT-Contract Code of Civil Procedure, § 425.12 PLD-C-001 SHORT TITLE: CASE NUMBER: DISCOVER BANK V. KEVIN AGBAYANI and DOES 1-10, inclusive 4. (Continued) b. The true names of defendants sued as Does are unknown to plaintiff. (1) D Doe defendants (specify Doe numbers): were the agents or employees of the named defendants and acted within the scope of that agency or employment. (2) E Doe defendants (specify Doe numbers): 1-1 0 are persons whose capacities are unknown to plaintiff. c. D Information about additional defendants who are not natural persons is contained in Attachment 4c. d. D Defendants who are joined under Code of Civil Procedure section 382 are (names): 5. D Plaintiff is required to comply with a claims statute, and a. D has complied with applicable claims statutes, or b. D is excused from complying because (specify): 6. D This action is subjectto D Civil Code section 1812.10 D Civil Code section 2984.4. 7. This court is the proper court because a. D a defendant entered into the contract here. b. D a defendant lived here when the contract was entered into. a defendant lives here now. the contract was to be performed here. a defendant is a corporation or unincorporated association and its principal place of business is here. real property that is the subject of this action is located here. other (specify): Ummmg 8. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): Breach of Contract Common CountsD&D Other (specify): go E Other allegations: Before commencement of this action Plaintiff informed the defendant(s) in writing it intended to file this action and that this action would result in a judgment against defendant(s) that would include court costs and necessary disbursements allowed by CCP Section 1033(b)(2) 10. Plaintiff prays forjudgment for costs of suit; for such relief as is fair, just, and equitable; and for a. E damages of: $ 4,089.33 b. D interest on the damages (1) D according to proof (2) D at the rate of (specify): c. D attorney's fees (1) D of: $ (2) D according to proof. d. Other (specify): Post-Judgment interest. 11. D The paragraphs of this pleading alleged on information and belief are as follows (specify paragraph numbers): Date: 3/12/21 [ 1JANET L. BROWN #208602 ESSICA M. GARCIA #314298 [ WILLIAM BELLOR-YEH #331017 > gm (TYPE 0R PRINT NAME) a (SIGNATURE 0F PLAINTIFF 0R ATTORNEY) (Ifyou wish t0 verlfi/ this pleading, affix a verification.) Page 2 of2 PLD-C-001 [Rev. January 1, 2007] COMPLAINT-Contract SHORT TITLE: CASE NUMBER: DISCOVER BANK V. KEVIN AGBAYANI and DOES 1-10, inclusive FIRST CAUSE OF ACTION-Common Counts (number) ATTACHMENT TO g Complaint D Cross-Complaint (Use a separate cause of action form for each cause of action.) CC-1 . Plaintiff (name): DISCOVER BANK alleges that defendant (name): KEVIN AGBAYANI, and DOES 1 through 10, inclusive, becameindebtedto g plaintiff D other(name): a. g within the last four years (1) g on an open book account for money due. (2) g because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. b. g within the last D two years g four years (1) D for money had and received by defendant for the use and benefit of plaintiff. (2) D for work, labor, services and materials rendered at the special instance and request of defendant and for which defendant promised to pay plaintiff. D the sum of $ D the reasonable value. (3) for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff the sum of $4,089.33 D the reasonable value. (4) D for money lent by plaintiff to defendant at defendant's request. (5) D for money paid, laid out, and expended to or for defendant at defendant's special instance and request. (6) g other (specify): For credit extended on the account issued by Plaintiff to Defendant(s) for purchases and/ or cash advances by Defendant(s) and/or persons with Defendant(s)’ permission. The account is identified as credit account ending in 9058. The Defendant(s) was billed periodically throughout the credit relationship for the credit extended pursuant to the requirements of the Fair Credit Billing Act (15 USC Section 1666 et seq.) See an account record for account ending in 9058 attached as Exhibit A. The Plaintiff has performed all conditions precedent to bringing this action or the same have been waived by the Defendant(s). CC-2. $, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgment interest D according to proof D at the rate percent per year from (date): CC-3. D Plaintiff is entitled to attorney fees by an agreement or a statute D of $ D according to proof. CC-4. g Other: $4,089.33, which is the fixed and agreed amount due and unpaid despite Plaintiff’s demand. Page Three Page 1 of 1 Form Approved for Optional Use ~ - JudicialComflofcmfomia CAUSE 0F ACTION-Common Counts C°d°°fC1V3V33::j‘;;§,;J§,fi§§g-;i PLD-C-001(2) [Rev. January 1, 2009] EXHIBITA mm DISCOVER IT® CARD HVDING IN 9058 CARDMEMBER SINCE 2017DISCOVER" ar: DISCOVER' Account Summary 03/17/2020 -04/16/2ozo Previous Balance $4,089.33 Payments and Credits +$0.00 Purchases +$0.00 Balance Transfers +$0.00 Cash Advances +$0.00 Fees Charged +$0.00 Interest Charged +$0.00 New Balance: $4,089.33 See Interest Charge Calculation section followingthe Fees and Interest Charged section for detailed APR information Credit Line $3,800 Credit Line Available $0 Cash Advance Credit Line $900 Cash Advance Credit Line Available $0 FICO® Score 8 based on TransUnion® data:- As or 04/10/20Updated Monthly See Key Factors that help explain your score at Discover.com orvisit ourmobile app Payment Coupon Detach at perforation above and return with check payable to Discover. Do not fold, clip, staple or send cash. KEVIN AGBAYANI “a 1566 ADAMS AVE APT 1 MILPITAS CA 95035-4930 New address, email or phone? Please update on reverse. Payment Information New Balance Minimum Payment* Payment Due Date 54,089.33 5807.00 05/11/2020 * Includes past due amount of $725.00 Late Payment Warning: Ifwe do not receive your minimum payment by the date listed above, you may have to pay a late fee of up to $39.00. Minimum PaymentWarning: Ifyou make onlythe minimum payment each period, you will pay more in interest and it will take longerto pay offyour balance. For example: Ifyou make no additional You will pay offthe And you will end up charges using this card and balance shown on this paying an estimated each month you pay... statement in about... total of... w Onlythe minimum payment 7 years $4,089 Ifyou would like information about credit counselingservices, call us at 1-800-347-1121. Notice: See reverse side for important information ACCOUNT NUMBER ENDING IN 9058 New Balance 54,089.33 Minimum Payment Due $807.00 Payment Due Date 05/1 1/2020 Amount Enclosed s Forafaster,easier E Discover.com § 1-800-347-2683 way to pay... See reverse for payment cut off times. PO BOX 29013 PHOENIX AZ 85038-9013 UDDUDI‘IEEH53537HSUIBEDHUB‘IBBDDSDDUDDDED?UD page5 DISCOVER IT® CARD ENDING IN 9058 KEVIN AG BAYANI Page 2 of6 OPEN TO CLOSE DATE: 03/17/2020 - 04/16/2020 lmpontant Information See your CardmemberAgreement. Your CardmemberAgreement contains all the terms ofyourAccount. Lost or Stolen Cards. Report immediately! Call 1-800-347-2683. What To Do lfYou ThinkYou Find A Mistake 0n Your Statement: If you thin k th ere is an error on your statement, write to us at Discover, PO Box 30421, Salt Lake City, UT 84130-0421, or submitthe form provided at https://discover.com/billingerrornotice. You must contact us within 6O days afterthe error appeared on yourstatement. You may call us, but ifyou do we are not required to investigate any potential errors, and you may have to pay the amountin question. The Billing Rights Notice further explainsyourrights. Please see your CardmemberAgreementorvisit https://discover.com/billingrights for a copy ofthis Notice. Payments. You may pay all or part ofyourAccount balance at anytime. However, you must pay at least the Minimum Payment Due by the Payment Due Date. Send only yourallowable form ofpayment ("Payment") and the bottom portion of this statement in the envelope provided, afteraffixingpostage. Payments sentwithout proper postage will be returned to the sender. Ifyou pay by check, you authorize us to use information on your check to make an electronicfund transferfrom your accountat the financialinstitution indicated on yourcheck orto process the paymentas a check transaction. Ifa Payment is processed as an electronic fund transfer, the transferwill be forthe amount ofthe check, funds may be withdrawn from your account as soon as the same day we receive your check, and you will not receive your check back. Please do not send cash. Sending cash is not allowed. The processing ofyour allowable form of Payment may be delayed ifyou send cash or correspondence with your Payments, ifyou send the Paymentto any other address, or ifyou use an envelope other than the one provided. Payments received at our processing facility by 5PM local time on any day will be credited to yourAccount as ofthat day. Payments received at our processing facilityafter 5PM local time will be credited to yourAccount as ofthe next day. Ifyou have misplaced your envelope, send your Paymentto Discover, PO Box6103, Carol Stream, |L 60197-6103. Please allow 7-10 days for delivery. Ifyour Payment is returned unpaid, we reserve the right to resubmit it as an electronic debit. Payments made online or by phone before Midnight Eastern Time on any day except your Statement Closing Date will be credited as of the same day; on your Statement Closing Date, online and phone payments must be made before 5:00 PM Eastern Time to be credited as of that day. You can also make a Paymentor set up automatic payments by calling 1-800-347- 2683. Automatic payments for the billing period shown on yourstatement will be deducted on the Payment Due Date shown on that statement, or the nextautomatic payment date referred to on your statement, un less you request a recurring payment date that occurs before your Payment Due Date. In orderto schedule monthly payments by telephone, you will need this statementand your bank account information.You will be asked to provide the last four (4) digits ofthe social security numberofthe primary borrower as your electronic signature. By providing those numbers, you will be agreeingto this authorization to allow us and your bankto deduct each paymentyou authorize, in the amountselected by you, from your bank account. You also authorize us to initiate debit or credit entries to your bank account, as applicable, to correct an error in the processing ofsuch payment. You can cancel ormodifya payment from yourbank account until 5:00 PM Eastern Time on the day such payment is scheduled by calling 1-800-347-2683 or by mail at Discover, PO Box 30421, Salt Lake City, UT 84130-0421. Same day online or phone payments from bank account made after 5:00 PM Eastern Time may be modified before Midnight Eastern Time ofthat day. Payments from Cashback Bonus cannot be modified or cancelled after being made or scheduled. Ifyour payments may vary in amount,we will tell you on each monthly billing statementwhen your paymentwill be made and how much it will be. You must ensure that sufficientfunds are availablein your bank account, and all transactions must comply with U.S. law. You can set up automatic payments for: (i) statement New Balance, (ii) statement Change ofAddress Minimum Payment Due, (iii) statement Minimum Payment Due plus a fixed dollar amount, or (iv) other dollaramount. Ifyour scheduled "Other dollar amount" payment is not enough to cover the Minimum Payment Due as listed on your monthly billing statement, yourscheduled payment for that month will be increased to cover the Minimum Payment Due. Ifthe scheduled payment is greaterthan the Minimum Payment Due, any excess will be applied in accordance with your Cardmember Agreement. Ifyourscheduled payment is greaterthan the New Balance on yourbilling statement, that paymentwill be processed only for the amountof your New Balance. Yourautomatic paymentamount may be less than the amount indicated on the billing statement based on credits or payments afterthe Close Date. Ifyou enroll by phone in our automatic payment service, please fill-in the following blanks below and retain the authorization for your records. Amount OFull Pay OMin Pay O Min Pay+$_______Q Other Amount $_____ Bank Routing# BankAccount # Monthly on theO Payment Due Date, or O__ Day of the month (INSERT DATE) Credit Reporting. Credit Reporting. We may report information about yourAccount to credit bureaus. Late payments, missed payments, orother defaults on yourAccount may be reflected in your credit report. We normallyreportthe status and payment history of yourAccount to credit reporting agencies each month. Ifyou believe that our report is inaccurate or incomplete, please write us at this address: Discover, PO Box 30939, Salt Lake City, UT 84130-0939. Please include your name, address, home telephone number and Account number. Payinglnterest. Your due date is at least 25 days afterthe close of each billing period (at least 23 days for billing periods that begin in February). We will begin charging intereston Cash Advances and Balance Transfers as ofthe later ofthe Transaction Date or the first day of the billing period in which the transaction posted to your Account. Ifyou pay the New Balance on your current billing statement by the Payment Due Date shown on that billingstatement, we will not impose interest charges on New Purchases. New Purchases are Purchases that first appearon the next billing statement. Interest will continue to accrue each day on purchases that appeared on previous billingstatements untilyou pay the New Balance in full and will be billed in the next billing cycle. HowWe Calculate Interest Charges. We Use the Daily Balance Method (including current transactions) to calculate the Balance Subject to Interest Rate. For more information, please call us at 1-800-347-2683. BalanceSubiect To Interest Rate.Your statement shows a Balance Subject to Interest Rate. It shows this for each transaction category. The Balance Subject to Interest Rate is the average of the daily balances duringthe billing period. Credit Balances. IfyourAccount has a credit balance, the amount is shown on the front ofyour billing statement.A credit balance is money that is owed to you. You may make charges against this amount ifyourAccount is open. We will send you a refund ofany remainingbalance of $1.00 or more after6 months, or as otherwise required by applicable law, or upon request made to the address in the Contact Us section on page 3 ofyourbillingstatement. BalanceTransfers. Balance Transfers are offered at our discretion and accrue interest at the standard purchase rate unless we tell you otherwise. Discover may monitorand/or record telephone calls between you and Discover representatives for quality assurance purposes. Send inquiries to Discover, PO Box 30943, Salt Lake City, UT 84130 The Discover® card is issued by Discover Bank, Member FDIC. DIT23-27.0420 If correct on front, do not use. To make changes to your address, email ortelephone number, please print clearly in blue or black ink, in the space provided or visit Discover.com. StreetAddress Home Phone Work Phone City Email State, Zip Page 6 0N LINE PHONE PAYMENTS Page 3 of 6 DISC.VER- ‘ ‘ Discover.com or 1-800-347-2683 Discover DISCOVER |T® CARD mDINGIN 9058 ‘ download our app TDD 1-800-347-7449 PO Box 6103 OPEN To CLOSE DATE: 03/17/2020 - 04/16/2020 Carol Stream |L60197-6103 Transactions Cashback Bonus® Rewards N0 ACTIVITY FOR THIS BILLING PERIOD pREv'ous BALANCE 50,00 EARNED THIS PERIOD +$o.oo Fees and Interest Charged REDEEMED THIS PERIOD -S0.00 TOTAL FEES FOR THIS PERIOD $o.oo CASHBACK BONUS BALANCE $0.00 TOTAL INTEREST FOR THIs PERIOD $0.00 zozo TOTALS YEAR-To-DATE CHARGED AMOUNT TOTAL FEES CHARGED IN 2020 $78.00 TOTAL INTEREST CHARGED IN 2020 $131.21 Interest Charge Calculation YourAnnual Percentage Rate (APR) is the annual interest rate on your account. CURRENT BILLING PERIOD: 31 DAYS PROMO BALANCE SUBJECT INTEREST TYPE OF BALANCE APR' APR EXPIRES" TO INTEREST RATE CHARGE Purchases 17.99%V N/A $0.00 $0.00 Cash Advances 24.99% V N/A $0.00 $0.00 V = VARIABLE RATE * Ifyour account is currently enrolled in a special program or is placed into one duringthe term ofthe offer, youwill receive the benefit ofthe lower rate while the special program is in effect. This includes, ifapplicable, any lower rates as authorized underthe Servicemembers Civil ReliefAct. ** This isthe date your promotional rate expires and the remainingbalancewill be moved to yourstandard APR disclosed when you accepted the offer. Please note: Changingyour payment due date may change your Promo APR Expiration Date. *** For more information, please call us at 1-800-347-2683. Information ForYou FICO® Credit Score Terms Your FICO® Credit Score, key factors, and other credit information use the FICO® Score 8 model. They are based on data from TransUnion® and may be different from other credit scores and othercredit information provided by different bureaus. This information is intended for and only provided to Primary account holders who have an available score. Your score, key factors and other credit information are available on Discover.com and cardmembers are also provided a score on statements. Customers will see up to a year of recent scores online. Discover and other lenders may use different inputs, such as FICO® Credit Scores, other credit scores and more information in credit decisions. This benefit may change or end in the future. FICO is a registered trademark ofthe Fair Isaac Corporation in the United States and othercountries. Ifyou prefer not to receive your FICO® Credit Score just call us at 1-800-DISCOVER (1-800-347-2683). Please give us two billing cycles to process your request. Discover Financial Services and Fair Isaac are not credit repair organizations as defined under federal or state law, including the Credit Repair Organizations Act. Discover Financial Services and Fair Isaac do not provide "credit repair" services or assistance regarding "rebuilding" or "improving" your credit record, credit history or credit rating. Availability of FICO® Credit Score As an active cardmember, you may see your F|CO® Credit Score on your monthly statement or online. Reasons why you may not see your F|CO® Credit Score include: if you opt out; ifyou have key information that is mismatched or missing, as one example, an address change that has not been updated with Discover orTransUnion®; if your credit history is too new; ifyour account status is abandoned, bankrupt, fraud, lost orstolen, closed, revoked, or charged off; if you have a foreign address. Your F|C0® Score is disclosed on statements when your statement is available. You may not receive a statement if you have no account activity such as no purchase transactions, fees, interest, or payments for approximately 30 days. Page 7 DISCOVER IT® CARD ENDING IN 9058 Page 4 of 6 KEVIN AGBAYANI OPEN TO CLOSE DATE: 03/17/2020 - 04/16/2020 Page 8 I 0N LINE PHONE PAYMENTS Page 5 of 6 DISC.VER- ‘ Discover.c0m or 1-800-347-2683 Discover DISCOVER |T® CARD mDING IN 9053 ‘; download our app TDD 1-800-347-7449 PO Box 6103 OPEN To CLOSE DATE: 03/17/2020 - 04/16/2020 3 Carol Stream |L 60197-6103 FICO® Credit Score FICO® Credit Score History Important Information: We may not always receive a score foryou each month, so there may be months with no scores. For questions on the availability ofyour score go to the "Information ForYou" section ofthis statement. The F|C0® Score 8 based on TransUnion data is the score that Discoveruses. This chart will be shown in every Ian, Apr, Jul and Oct statement when you have up to 12 months of scores. Log in to Discover.com/FICO any time to see key factors that help explain your scores. FICO® Credit Scores considerthe following for the general population 35% Payment history 30% Amounts owed 10% New credit )10% credit mix 15% Length of credit See FICO® Credit Score Terms in the "Information ForYou" section ofthis statement. Page 9 © 2019 Discover Bank, MemberFDlC CODE_SUM_1219 DISCOVER IT® CARD ENDING IN 9058 Page 6 of 6 KEVIN AGBAYANI OPEN TO CLOSE DATE: 03/17/2020 - 04/16/2020 Page 1O
