Slyzko v. Randolph Brook Federal Credit Union et al

MOTION to Dismiss for Lack of Jurisdiction or in the Alternative, Motion to Transfer Venue

D. Neb.April 18, 2017

Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael F. Lynch Nevada Bar No. 8555 LYNCH LAW PRACTICE, PLLC 3613 S. Eastern Ave. Las Vegas, Nevada 89169 (702) 684-6000 (702) 543-3279 (fax) michael@lynchlawpractice.com Attorneys for Randolph-Brooks Federal Credit Union UNITED STATES DISTRICT COURT DISTRICT OF NEVADA VALERIYA A. SLYZKO, Plaintiff, vs. RANDOLPH BROOK FEDERAL CREDIT UNION; BANK OF AMERICA, NATIONAL ASSOCIATION; EQUIFAX INFORMATION SERVICES, LLC, Defendants. Case No.: 2:17-cv-00061-APG-VCF DEFENDANT RANDOLPH-BROOKS FEDERAL CREDIT UNION’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE In accordance with Federal Rule of Civil Procedure 12(b)(2), Defendant Randolph-Brooks Federal Credit Union (“RBFCU”), improperly named in the above-captioned lawsuit as Randolph Brook Federal Credit Union, respectfully moves this honorable Court to dismiss Plaintiff’s Complaint for Damages Pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681, Et. Seq. (the “Complaint”) for lack of personal jurisdiction. In the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(3), RBFCU requests that the Court transfer venue to the United States District Court for the Western District of Texas, San Antonio Division. This Motion is supported by the following Memorandum of Points and Authorities, the attached exhibits, the record therein, and any arguments that may be presented at a hearing, if any, on this Motion. Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 1 of 12 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s Complaint must be dismissed as against RBFCU because Plaintiff cannot produce any competent evidence establishing personal jurisdiction over RBFCU in Nevada. RBFCU has no specific contacts in Nevada sufficient to confer jurisdiction over it. In this regard: (a) RBFCU is a member-owned, not-for-profit financial cooperative organized in Texas and headquartered in Live Oak, Texas; (b) RBFCU does not conduct business in Nevada and has no offices in Nevada; rather, RBFCU’s offices and branches are wholly located within the State of Texas; (c) Approximately 94.15% of RBFCU’s members list Texas contact information in documents on file with RBFCU. Conversely, only 0.1065% of RBFCU’s members list Nevada contact information in documents on file with RBFCU; (d) RBFCU does not have any employees who work in Nevada, and RBFCU has never directed any employee or agent to conduct any activity in Nevada whatsoever; (e) RBFCU does not own any property in the State of Nevada; (f) RBFCU has never had a bank account in the State of Nevada; and (g) Because RBFCU has offices only in the State of Texas, all communications to or from RBFCU that could relate to Plaintiff or that possibly could be actionable in this case would have originated by RBFCU or been received by RBFCU solely in the State of Texas. See generally Declaration of Sherry Roberts, attached hereto as Exhibit A. Under the prevailing law, RBFCU’s “contacts” with Nevada are legally insufficient to sustain personal jurisdiction over it. Therefore, RBFCU should be dismissed from this case. II. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER RBFCU (a) Standard of Review Where, as here, no federal statute governing personal jurisdiction is applicable, federal courts apply the law of the state in which the district court sits. Core-Vent Corp. v. Nobel Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 2 of 12 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Industries AB, 11 F.3d 1482, 1484 (9th Cir. 1993). In Nevada, personal jurisdiction is governed by NRS 14.065, which provides that a “court of this state may exercise jurisdiction over a party to a civil action on any basis not inconsistent with the constitution of this state or the Constitution of the United States.” Jurisdiction is properly challenged by way of a motion to dismiss. See e.g. Hansen v. District Court, 116 Nev. 650, 656 (2000). “Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)) (emphasis added). A plaintiff cannot simply rest on the bare allegations of the complaint to meet this standard. Id. “For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.’” Id. at 801 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). This minimum contacts test must be established by showing that either “general” or “specific” contacts exist between the defendant and the forum state such that the forum state may exercise personal jurisdiction over the defendant. See Boschetto v. Hansing, 539 F.3d 1011, 1015-16 (9th Cir. 2008). The plaintiff cannot be the only link between the defendant and the forum. Rather, “it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.” Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014) (cited with approval in Elghassen v. RBS Computer, Inc., 2015 U.S. Dist. LEXIS 73251, at *4-6 (D. Nev. June 4, 2015)). As set forth below, RBFCU is not subject to general or specific jurisdiction in Nevada. (b) No General Jurisdiction Exists over RBFCU. General jurisdiction, under which a defendant is held to answer in a forum for causes of action unrelated to the defendant’s forum activities, is available only where that “defendant’s activities in the forum are substantial, or continuous and systematic.” Doe v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001). Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 3 of 12 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, there are no substantial, continuous or systematic contacts by RBFCU sufficient to support a finding of general jurisdiction. RBFCU does not conduct business in Nevada, has no offices in Nevada, does not own and has never owned property in Nevada, has never had a bank account in Nevada, does not have any employees who work in Nevada, and has never directed any employee or agent to conduct any activity in Nevada whatsoever. See Exhibit A, ¶¶ 6-9. Accordingly, RBFCU is not subject to general jurisdiction in Nevada. (c) No Specific Jurisdiction Exists over RBFCU. In the Ninth Circuit, courts apply a three-part test to determine whether subjecting a defendant to specific jurisdiction is appropriate. Boschetto, 539 F.3d at 1016. First, the defendant “must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.” Id. (citation omitted). In this regard, an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts to support personal jurisdiction.” Doe, 248 F.3d at 924. Second, the claim asserted by the plaintiff “must be one which arises out of or relates to the defendant’s forum- related activities.” Boschetto, 539 F.3d at 1016 (citation omitted). To the extent the plaintiff does not bear its burden to establish both of these prongs, “the jurisdictional inquiry ends and the case must be dismissed.” Id. (emphasis added). The third prong, which requires that “the exercise of jurisdiction…comport with fair play and substantial justice, i.e. it must be reasonable,” is therefore applicable only where the plaintiff has established the first two prongs.” Id. Here, with respect to the first prong, Plaintiff cannot establish that RBFCU has purposefully availed itself of the privilege of conducting business in Nevada. As mentioned above, RBFCU does not conduct business in Nevada, has no offices in Nevada, does not own and has never owned property in Nevada, has never had a bank account in Nevada, does not have any employees who work in Nevada, and has never directed any employee or agent to conduct any activity in Nevada whatsoever. See Exhibit A, ¶¶ 6-9. While Plaintiff alleges that RBFCU “is a corporation doing business in the State of Nevada” (see Complaint, ECF No. 1, ¶ 8), RBFCU Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 4 of 12 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifically denies these allegations. RBFCU conducts business in the State of Texas rather than the State of Nevada. See Exhibit A, ¶¶ 4-9. Moreover, the existence of a contract between Plaintiff and RBFCU, without more, is insufficient to establish personal jurisdiction over RBFCU. See Doe, 248 F.3d at 924. As of the date of this Motion, and contrary to Plaintiff’s allegations, RBFCU has found no evidence that it received or responded to a credit dispute or complaint from Equifax Information Services, LLC (“Equifax”), a credit reporting agency, regarding Plaintiff.1 Exhibit A, ¶ 13. Further, to the extent that RBFCU communicates with any of the three major credit reporting agencies, including Equifax, all such communications are made from or received at RBFCU’s offices located in the State of Texas. Exhibit A, ¶ 13. Accordingly, RBFCU has not purposefully availed itself of the privilege of conducting any activities in Nevada such that this Court could have personal jurisdiction over RBFCU. With respect to the second prong, Plaintiff’s claim for relief is for violations of the Fair Credit Reporting Act (“FCRA”). See generally Complaint, ECF No. 1. Plaintiff, at best, alleges that RBFCU provided certain inaccurate information to Equifax, received notification from Equifax of Plaintiff’s dispute regarding said information, and verified and/or re-reported inaccurate information in connection with Plaintiff’s credit report. See generally Complaint, ECF No. 1, ¶¶ 83-116. None of these allegations are alleged to have occurred in Nevada, or to have been directed to Nevada. To the extent that RBFCU could have received any credit dispute from Equifax regarding Plaintiff or responded to the same, which has not been established, such communications would have been made only from RBFCU’s offices located in the State of Texas. See Exhibit A, ¶¶ 4-9, 13. Accordingly, all of RBFCU’s alleged misconduct in this case, if any, would have occurred in Texas, where its only offices are located. Further, even if Equifax has a presence in Nevada, which also has not been established, that fact alone cannot not give rise to personal jurisdiction over RBFCU. See, e.g., Sage Computer Technology v. P-Code Distrib. Corp., 576 F. Supp. 1194, 1196 (D. Nev. 1983) (“Mere impact or effects caused within the State 1 Plaintiff’s Complaint includes a reference to an Equifax credit report as Exhibit “1,” but Plaintiff did not attach any exhibits to the Complaint and has not produced any evidence of such report. Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 5 of 12 Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from outside activities is not sufficient to support the exercise of jurisdiction.”) (citing Basic Food Indus., Inc. v. Eighth Judicial Dist. Ct., 94 Nev. 111, 575 P.2d 934, 936 (Nev. 1978)). If that was the case, then all financial institutions that report to Equifax would come under the personal jurisdiction of Nevada regardless of their contacts with Nevada and regardless of whether any actionable communications actually occurred in Nevada, which is clearly not the intent of Nevada’s long-arm statute. See Shapiro v. Pavlikowski, 98 Nev. 548, 549-550 (Nev. 1982) (“Personal jurisdiction over an out-of-state defendant may only be conferred on Nevada courts under NRS 14.065 when the defendant commits, within the state, one or more of certain acts enumerated by the statute. These include transacting business and negotiating commercial paper. However, jurisdiction extends only to causes of action which arise from those acts.”) (emphasis added). Thus, Plaintiff’s FCRA claim does not arise out of or relate to any Nevada-related activities of RBFCU. Because Plaintiff cannot establish either of these prongs, the exercise of specific jurisdiction over RBFCU would be inappropriate, and the Complaint must be dismissed. See Boschetto, 539 F.3d at 1016. To the extent the Court wishes to consider the third prong of the test, there is no doubt that requiring RBFCU to defend this action in Nevada would be a great burden to RBFCU. Forcing this Texas entity to defend in a forum outside of its domicile-especially given the non-existence of any actions by RBFCU within or directed to Nevada-would be unreasonable because it would be expensive and inconvenient. See Exhibit A, ¶ 14. Specifically, any relevant documents, including those related to Plaintiff or to RBFCU’s reporting activity to any credit reporting services, are located at RBFCU’s offices in Texas. Exhibit A, ¶ 14. All potential witnesses, other than the Plaintiff, are located in Texas. Exhibit A, ¶ 14. RBFCU would incur substantial expense and inconvenience if it is forced to make arrangements for all such witnesses to travel and stay in Nevada for depositions, hearings, or trial in this case. Exhibit A, ¶ 14. Accordingly, exercising specific jurisdiction over RBFCU in this matter would not “comport with fair play and substantial justice,” and the Complaint should be dismissed for lack of personal jurisdiction over RBFCU. See Doe, 248 F.3d at 925 (“The bare existence of minimum contacts is Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 6 of 12 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not sufficient to allow a court to exercise personal jurisdiction over a defendant. The third step of the Ninth Circuit test requires a finding that assertion of jurisdiction is reasonable.”). (d) Dismissing the Claims Against RBFCU is Consistent with Prior Action Taken by this Court in a Similar Case. The allegations in this case are similar to those in Case No.: 2:14-cv-01539-JAD-GWF, styled Saleh Elghasen v. RBS Computer, Inc., et al., filed in this Court on December 5, 2014 (the “RBS Case”). Like in this case, the plaintiff in the RBS Case asserted a claim for FCRA violations against a defendant, RBS Computer, Inc. (“RBS”), whose only office is in Texas. See Elghassen v. RBS Computer, Inc., 2015 U.S. Dist. LEXIS 73251, at *1 (D. Nev. June 4, 2015). Specifically, the plaintiff contended that RBS purchased or acquired plaintiff’s personal loan from Family Finance. Exhibit B, ¶¶ 16-19. Like in this case, the plaintiff in the RBS Case asserted that RBS made “erroneous reports of derogatory and negative credit information” and failed to “properly investigate the dispute information,” which purportedly caused plaintiff’s damages. Compare Exhibit B, ¶ 2, with Complaint, ECF No. 1, ¶¶ 21-22, 83. RBS moved for dismissal for lack of personal jurisdiction on the grounds that: (1) RBS is a Texas corporation whose only office is in Texas; (2) RBS does not conduct business in Nevada; (3) RBS does not own any property in Nevada; (4) RBS does not have any employees who work in Nevada or direct communications to Nevada; (5) RBS does not have a Nevada bank account; (6) all of RBS’s alleged actions would have occurred in Texas, where its only office is located; and (7) any communication RBS had with Experian, a credit reporting agency, would have occurred outside of Nevada because Experian does not have an office in Nevada. See Elghassen, 2015 U.S. Dist. LEXIS 73251, at *1, 7. This Court granted RBS’s Motion to dismiss for Lack of Personal Jurisdiction and dismissed all claims against RBS. Id. at *8. Like in the RBS Case, the Complaint and claims against RBFCU in this case should be dismissed for lack of personal jurisdiction for the reasons provided herein. III. IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER VENUE TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION (a) Introduction Plaintiff filed suit in the District of Nevada, alleging simply that “Defendants are subject to Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 7 of 12 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal jurisdiction in the County of Clark, State of Nevada as they conduct business there” with absolutely no basis for that allegation. The only Defendant that will be litigating this case going forward2-RBFCU-is organized in Texas and headquartered in Live Oak, Texas, which is located within the Western District of Texas, San Antonio Division. See 28 USC § 124(d)(4). As stated above, Plaintiff claims that RBFCU provided certain inaccurate information to Equifax, received notification from Equifax of Plaintiff’s dispute regarding said information, and verified and/or re-reported inaccurate information in connection with Plaintiff’s credit report. See generally Complaint, ECF No. 1, ¶¶ 83-116. None of these allegations are alleged to have occurred in Nevada, or to have been directed to Nevada. To the extent that RBFCU could have received or responded to a credit dispute or complaint from Equifax, which has not been established, such communications would have occurred at RBFCU’s offices in Texas. Exhibit A, ¶ 13. The relevant evidence and majority of the witnesses are located within the Western District of Texas, San Antonio Division. See Exhibit A, ¶ 14. Further, to the extent not pre-empted by federal law, Texas law governs Plaintiff’s Membership and Account Agreement (the “Agreement”) with RBFCU. Exhibit A, ¶¶ 11-12, and Exhibit 1 attached thereto. Finally, the Agreement provides that Plaintiff “acquiesce[s] and submit[s] to personal jurisdiction in the State of Texas.” Exhibit A, ¶¶ 11-12, and Exhibit 1 attached thereto. RBFCU finds itself defending against Plaintiff’s claims in this substantially inconvenient District of Nevada forum that has no connection whatsoever to RBFCU or the factual allegations supporting Plaintiff’s claims against RBFCU in this Lawsuit. Accordingly, RBFCU brings this Motion to Transfer Venue under 28 U.S.C. § 1404(a) and 1391(b)(1), because the Western District of Texas, San Antonio Division: (1) is a proper venue for this Lawsuit as the district in which the only Defendant that remains to litigate this matter resides; (2) is the district of the law controlling the interpretation of the Agreement between the parties, unless pre-empted by federal law; and (3) is the applicable district in the state to which Plaintiff acquiesced and submitted to personal 2 Plaintiff filed a Notice of Voluntary Dismissal as to Defendant Bank of America, National Association [ECF No. 6], and Plaintiff filed a Notice of Settlement between Plaintiff and Equifax Information Services, LLC [ECF No. 8]. Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 8 of 12 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdiction. Additionally, the balance of convenience factors this Court is required to consider weighs in favor of transferring this cause to the Western District of Texas, San Antonio Division, as shown below. (b) Legal Standard In addition to the fact that Plaintiff has acquiesced and submitted to personal jurisdiction in the State of Texas by virtue of the Agreement, the case should be transferred to the Western District of Texas, San Antonio Division, because the balance of the relevant private and public interests favor such a transfer. “For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The purpose of § 1404(a) is “to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” CapSource, Inc. Moore, 2015 U.S. Dist. LEXIS 147572, at *6 (D. Nev. October 30, 2015) (quoting Amazon.com v. Cendant Corp., 404 F. Supp. 2d 1256, 1259 (W.D. Wash. 2005)). The district court has discretion to order transfer after an individualized, case-by-case consideration of convenience and fairness. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). (c) Argument and Authorities For transfer of venue to be appropriate, the proposed transferee court must be one in which the action could have been brought. See 28 U.S.C. § 1404(a). In this case, it is clear that Plaintiff could have (and indeed, should have) filed suit against RBFCU in the Western District of Texas under the general venue statute, as that is the district in which RBFCU resides. See 28 U.S.C. 1391(b)(1); see also Exhibit A, ¶ 4. Accordingly, this Court should consider eight factors in deciding whether to transfer venue in this case: (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 9 of 12 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. CapSource, Inc., 2015 U.S. Dist. LEXIS 147572, at *6 (citing Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). As to the first two factors, both RBFCU and Plaintiff resided in Texas when Plaintiff became a member of RBFCU, and the Agreement clearly states that Texas law governs the Agreement to the extent not pre-empted by federal law. See Exhibit A, ¶¶ 4, 10-12, and Exhibit 1 attached thereto. To the extent that Texas law could apply, Texas courts are more familiar with such governing law. To the extent that the FCRA is the only controlling law, Texas courts are equally suited to apply such law. As to the third factor, the only contact with the District of Nevada is that, apparently, it is the place of Plaintiff’s current residence. That is the sole basis for Plaintiff’s choice of this forum, which pales in comparison to each of the other factors. Additionally, Plaintiff’s choice of Nevada as the forum deserves little weight in light of the fact that Plaintiff resided in Texas when she first contacted RBFCU and became a member of RBFCU. Exhibit A, ¶ 10. The fourth and fifth factors weigh heavily in favor of transferring venue. Specifically, RBFCU is located in the Western District of Texas, has no offices or operations in Nevada, and maintains all of its personnel, operations, and documents in Texas. Exhibit A, ¶¶ 4-9, 14. Even if Plaintiff now resides in Nevada, she resided in Texas at the time she became a member of RBFCU. Exhibit A, ¶ 10. Additionally, the facts giving rise to Plaintiff’s claims did not occur in Nevada. As noted above, Plaintiff alleges in her Complaint that RBFCU provided certain inaccurate information to Equifax. To the extent that RBFCU could have received or responded to a credit dispute or complaint from Equifax regarding Plaintiff, which has not been established, such communications would have occurred at RBFCU’s offices in Texas. See Exhibit A, ¶ 13. The remaining factors weigh heavily in favor of transferring venue because this case bears no connection to the District of Nevada. Because RBFCU maintains all of its personnel, operations, and documents in Texas, the majority of the key witnesses for this case will be found Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 10 of 12 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the Western District of Texas. Exhibit A, ¶ 14. It will be highly inconvenient and expensive for each of the witnesses for RBFCU to travel over 1,000 miles and stay in Nevada for depositions, hearings, or trial in this case. See Exhibit A, ¶ 14. Conversely, it will be much more cost-effective and convenient for RBFCU to litigate this matter in the Western District of Texas. Exhibit A, ¶ 14. Additionally, the parties would be unable to compel the attendance of any necessary non-party witnesses located in Texas if the trial is in Nevada. See FED. R. CIV. P. 45(c)(1). For these same reasons, all of the relevant documents and sources of proof are located in Texas, and Texas is the locus of operative facts. See Exhibit A, ¶¶ 4-14. The only single contact with the District of Nevada is that, apparently, it is the Plaintiff’s current residence following her move from Texas. For the reasons shown above, all but one of the eight factors this Court should consider weigh heavily in favor of transfer to the Western District of Texas. (d) Conclusion to Motion to Transfer Venue On balance, seven of the eight factors this Court should consider strongly favor transferring this action to the Western District of Texas. RBFCU-the only defendant that could litigate this case going forward-is located in the Western District of Texas. Plaintiff chose to do business in the State of Texas with a company based in the Western District of Texas. To the extent not pre-empted by federal law, the Agreement between Plaintiff and RBFCU is governed by the law of the State of Texas. Except for Plaintiff’s current residence in Nevada, all other evidence relevant to Plaintiff’s claims, including the key witnesses, the location of the physical evidence, and the locus of operative facts, are located in the Western District of Texas. All relevant events and omissions related to Plaintiff’s cause of action, if any, occurred in the State of Texas. Therefore, RBFCU respectfully requests a transfer to the Western District of Texas, San Antonio Division. III. CONCLUSION For these reasons, RBFCU respectfully submits that this Court has no personal jurisdiction over it, and therefore, this Motion to Dismiss must be granted. In the alternative, this case should Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 11 of 12 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be transferred to the United States District Court for the Western District of Texas, San Antonio Division. Dated April 18, 2017. Respectfully submitted, LYNCH LAW PRACTICE, PLLC /s/ Michael F. Lynch State Bar No. 8555 michael@lynchlawpractice.com 3613 S. Eastern Ave. Las Vegas, NV 89169 702.684.6000 702.413.8282 (direct) 702.543.3279 (fax) Attorneys for Defendant Randolph-Brooks Federal Credit Union CERTIFICATE OF SERVICE I certify that on April 18, 2017 I electronically filed the foregoing document using the Court’s CM-ECF system, which will automatically serve a copy of this document on all registered ECF participants, including counsel for Plaintiff: David H. Krieger Via CM-ECF HAINES & KRIEGER, LLC 8985 S. Eastern Ave. Suite 350 Henderson, NV 89123 (702) 880-5554 (tel) (702) 385-5518 (fax) dkrieger@hainesandkrieger.com Attorney for Plaintiff /s/ Michael F. Lynch Case 2:17-cv-00061-APG-VCF Document 11 Filed 04/18/17 Page 12 of 12 Exhibit A Exhibit A Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 1 of 31 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 2 of 31 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 3 of 31 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 4 of 31 Exhibit 1 Exhibit 1 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 5 of 31 M161AA R 04-28-15 1 Definitions Membership and Account Agreement What You Need to Know About Overdraft Fees Electronic Fund Transfers Agreement and Disclosures Funds Availability Policy Truth in Savings Account Disclosures Truth in Savings Rate Schedule Truth in Savings Fee Schedule National Credit Union Share Insurance Fund (NCUSIF) Privacy Notice Your Affiliate Marketing Choices Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 6 of 31 M161AA R 04-28-15 2 Definitions For the purposes of this Agreement, the following terms will apply: 1. You, the member, account owner and any authorized signer may be referred as “member,” “you,” “your,” or “yours” for the sake of this agreement. 2. Randolph-Brooks Federal Credit Union, RBFCU, may be referred as “RBFCU,” “credit union,” “we,” “us,” “our,” or “ours” for the sake of this agreement. 3. This Non-Personal Membership Agreement may be referred to as “Agreement” for the sake of this agreement. 4. Addendum Truth in Savings Fee Schedule may be referred to as “Schedule” for the sake of this agreement. 5. An Affiliate is any party that has a business relationship with us. 6. An Application is the Membership Application. 7. A Business Day is Monday through Friday, excluding Federal Holidays. The CU processes external transactions and payments on business days. 8. A Processing Day is daily (Sunday through Saturday). Processing days allows the CU to process internal transactions and payments. 9. An Account Statement is the account statement (monthly and quarterly) delivered to the member via their selected delivery method. 10. A Card means the RBFCU Freedom Check Card. 11. A Deposited Item is an item collected for you or accepted by us to deposit to your account. 12. A Dormant account is an account that has two years without member initiated transaction activity. 13. An Inactive account is an account that has one year without member initiated transaction activity. 14. An Item is defined as any cash or any non-cash items deposited or paid for you or accepted by us including checks, substitute checks, electronic items, drafts, incoming ACHs, outgoing ACHs, remote deposit checks, transfers, payments, point-of-sale transactions, deposit tickets, withdraw tickets, or any other reasonable form of payment or deposit. 15. A Notification is any contact made to you by us in regards to an item(s) or any other information regarding your account. Notifications are sent by mail, electronic mail, secured message or otherwise made available to you via your account statement. 16. An Overdraft is the result of an item paying on your account and creating a negative balance. 17. A Service is any service provided by us to you including but not limited to Account Research and Account Reconciliation. 18. Account Research is a service when we search for any account items for you on the available history and records of the account. 19. NSF - Non-sufficient Funds. RBFCU calls this an Insufficient Funds Fee. 20. NBFI - Non-Bank Financial Institutions other than banks or credit unions offering financial services. Example: casinos, pawn brokers, insurance companies. 21. MSB - Money Service Businesses. RBFCU has elected not to provide services to MSBs. 22. POD - Payable on Death 23. TUTMA - Texas Uniform to Minors Act 24. GAP - Guaranteed Asset Protection 25. CUDL - Credit Union Dealer Direct 26. MODD - Members-Only Dealer Direct 27. IOLTA - Interest on Lawyer Trust Accounts 28. CTR - Currency Transaction Report 29. SAR - Suspicious Activity Report 30. BSA - Bank Secrecy Act Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 7 of 31 M161AA R 04-28-15 3 Membership and Account Agreement IMPORTANT NOTICE: This Agreement and the additional agreements and disclosures in this handbook represent our contractual arrangement with you and contain important information about your membership and accounts with us. Please carefully review this Agreement and the additional agreements and disclosures and contact us if you should have any questions. The agreements and disclosures may be updated from time to time, and we will notify you of any changes as required by law. The most current versions of the agreements and disclosures are available on our website at www.rbfcu.org for easy reference in the future. In case of any conflict between any version of the agreements and disclosures and the versions appearing on our website, the versions on our website will control. In this Agreement, the words "you," "your," "Party," and "Owner" mean any person or entity who signs a Membership Application or any other application or document in connection with the opening of any Account with Randolph-Brooks Federal Credit Union, any such person or entity who maintains an Account with us, or any other person or entity authorized to use or having access to any such Account. The words "we," "us," "our," and "Credit Union" mean Randolph-Brooks Federal Credit Union. In this Agreement, and in your Truth-in-Savings Account Disclosures and Rate and Fee Schedules, the term “Savings Account” may be used to describe your Share Accounts with us, and the term “Checking Account” may be used to describe your Share Draft Accounts with us. Each person admitted to membership 18 years of age and older is entitled to one vote in Credit Union elections, irrespective of the number of shares held. Each person must provide a valid SSN/ITIN prior to account opening. You authorize us to establish one or more Accounts for you or on behalf of third Parties as designated in your Membership Application or in any other application or document you may execute with us (collectively, the "Application"), including without limitation, any Savings Account, Checking Account, Money Market Account, Business or Organization Account, and any Certificate Account. By opening or using any such Account, you agree to be bound by the terms of this Agreement whether you are acting in your individual capacity, in a fiduciary capacity, or in your capacity as an officer, agent, or representative of any business entity or organization. If your Account is held for personal, family, or household purposes, you also acknowledge receipt of and agree to be bound by our Truth-In- Savings Account Disclosures and Rate and Fee Schedules as amended from time to time and to conform to our rules, regulations, bylaws, and policies now in effect and as amended or adopted hereafter. In case of any conflict between the terms of this Agreement and the Truth-In-Savings Account Disclosures and Rate and Fee Schedules, the Disclosures and Rate and Fee Schedules will control. The Truth-In-Savings Account Disclosures and Rate and Fee Schedules are incorporated into this Agreement. This Agreement is incorporated into and made a part of any Application you execute or receive in connection with the opening or use of any Account. The USA PATRIOT Act requires financial institutions to identify potential members before opening an account. We are unable to open accounts for individuals if they do not provide the required information and documentation. The following are the only forms of identification accepted by RBFCU:  US driver's license  US state-issued ID card (issued by the DMV)  Passport with photo and in English  US Military ID Card - retired and active duty  US Civil Service ID Card - retired and active duty  Matricula  Concealed Handgun License (Texas)  Passport card (offered beginning July 2008)  Resident Alien or Permanent Resident card (a “Green Card”)  United States Employment Authorization card We require all Parties transacting business with RBFCU in any capacity to be identified with the forms of identification accepted by RBFCU. We require said Parties to provide information and documentation to support their request which will be reviewed and deemed acceptable by RBFCU. RBFCU maintains the right to refuse the transaction based on the information and/or documentation provided. TRUTH-IN-SAVINGS DISCLOSURES Truth-in-Savings Disclosures that apply to each of your Accounts, including the dividend rate and the annual percentage yield on your Accounts, are set out on the Truth-in-Savings Account Disclosures and Rate and Fee Schedules that accompany this Agreement. ACCOUNT OWNERSHIP 1. Single-Party Accounts. Under this type of Account ownership, the sole Party to the Account owns the Account. If you open a Single-Party Account, upon your death and absent any Payable on Death (P.O.D.) designation, ownership of the Account passes as part of your estate under your will or by the law governing the estate of a person who dies without a valid will. 2. Multiple-Party Accounts with Right of Survivorship. If an Account is opened by two or more Parties, or if one or more Parties are added to a Single Party Account after the Account is opened, the Account will be a Multiple-Party Account. The Parties to the Account own the Account in equal undivided interests. Payment to any Party shall be valid and discharge the Credit Union from any and all liability for such payment. The Credit Union may accept instructions from any Party or act at the request of any Party with regard to any such Account without the consent of any other Party to the Account. Each Party authorizes all other Parties to the Account to act on his or her behalf with respect to the Account and to endorse any instrument payable to him or her for deposit to any such Account. Without the consent or joining of any other Party and without regard to the interest in the Account of any other Party, any Party to the Account may (i) make deposits to or withdraw funds from the Account, (ii) place stop payment orders with respect to any items drawn on the Account by any Party to the Account, or (iii) pledge all of the shares or deposits in an Account to secure any indebtedness owing to us. In the event that any Account may be accessed by means of an electronic fund transfer, including the use of a Freedom Check/ATM Card issued in connection with the Account or any telephone or computer access program, each Owner grants to every other Owner actual authority to initiate any such transfer, to use any such Freedom Check/ATM Card issued, or to use any personal identification number issued in connection with any such telephone or computer access program. Multiple-Party Account Owners may only remove themselves from an Account and may not remove any other Owners. We may require a new Application whenever the Ownership of an Account is modified. Any Multiple-Party Account Owner may close an Account at any time without notice to any other Owner. All Account Owners must provide their written consent in such form as we may require to add additional Owners to a Multiple-Party Account. Any joint Account Owner may add or remove Payable on Death payees on an Account upon written notice to us in such form as we may require and without notice to any other Account Owner. If a primary member removes himself/herself from an Account, the remaining Owners may continue to maintain Accounts only if at least one of the Owners is a member or is within the Credit Union's field of membership. The Parties agree that the Credit Union may pay funds in any Multiple-Party Account to or on the order of any Party, regardless of whether any such Party is incapacitated or deceased. The Credit Union makes no representation concerning the legal consequences or effectiveness of the survivorship rights described in this Agreement, including any consequences arising out of the community property laws of any state, and you agree to hold us harmless from any loss or liability in connection with any Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 8 of 31 M161AA R 04-28-15 4 survivorship designation. You understand that you should consult with a qualified attorney if you have any question regarding the validity, effectiveness, or fitness of any such survivorship designation for any purpose. (a) Multiple-Party Account with Right of Survivorship. An Account will be a Multiple-Party Account with Right of Survivorship if you have so elected and indicated on any Account Card, Account authorization, or signature card, or if any such authorization or card otherwise represents that the Account is held jointly with right of survivorship. All funds deposited into any such Account, including any earnings thereon, shall be owned by the Parties jointly with all others who signed the Application, authorization or signature card, with right of survivorship. On the death of a Party, all sums in the Account on the date of the death vest in and belong to the surviving Party or Parties as their separate property and estate. (b) Multiple-Party Account without Right of Survivorship. An Account will be a Multiple-Party Account without Right of Survivorship if you have so indicated on any Account Card or other authorization, or if any such instrument otherwise fails to expressly indicate that the Account is held jointly with right of survivorship. On the death of a Party, the Party’s ownership of the Account passes as a part of the Party’s estate under the Party’s will or by the law governing the estate of a person who dies without a valid will. The interest of the surviving Owners is subject to any lien the Credit Union has for a deceased Party's obligations and any security interest the deceased Party gave in the Account funds, regardless of whether the surviving Owners consented to the security interest. 3. Payable on Death (P.O.D.) Accounts. A P.O.D. Account is an Account payable on request to one or more Parties during their lifetimes and upon the death of the last of those Parties, payable to one or more P.O.D. payees named in the Application executed in connection with the Account. You agree that the persons named as P.O.D. payees in any Application or Payable on Death Agreement, whether one or more, are designated as P.O.D. payees. During your lifetime, all funds paid into or deposited into the designated Account, including any earnings thereon, shall be owned by you, and payment may be made upon your request or the request of any Party to the Account. If there is more than one Owner, then during your lifetimes the provisions set forth above with regard to Multiple-Party Accounts shall control. Upon the death of the last of you to survive, each P.O.D. payee agrees that all such funds (funds remaining after any/all credit union obligations have been satisfied) shall be owned by the P.O.D. payees surviving with right of survivorship. Payment may be made at the request of any named P.O.D. payee then living, and any payment made upon the request of any surviving P.O.D. payee discharges us from any and all liability to that P.O.D. payee and any remaining P.O.D. payees or their heirs, executors, and personal representatives. You, your heirs, executors, and personal representatives agree to defend, indemnify, and hold us harmless from any claim asserted by any person or estate as a result of the payment of funds deposited in the designated Account. You understand and agree that a P.O.D. designation shall be effective only with respect to a Single-Party or a Multiple-Party Account. You understand and agree, further, that a P.O.D. designation may be ineffective unless signed by all original Parties to the Account. We make no representation concerning the legal consequences or effect of any P.O.D. designation, and you understand that you should consult with your attorney if you have any question regarding the validity or effectiveness of any such P.O.D. designation for any purpose. 4. Convenience Account. If an Account is established by one or more Parties in the names of the Parties as a Convenience Account, all sums on deposit in the Account are paid or delivered to the Parties establishing the Account or to any other Party to the Account (such other Party hereinafter referred to as a "convenience signer") for the convenience of the Parties opening the Account. The making of a deposit in a Convenience Account does not affect title to the deposit. A Party establishing a Convenience Account is not considered to have made a gift of the deposit or of any additions or accruals to the deposit to the convenience signer. On the death of the last surviving Party, a convenience signer shall have no right of survivorship in the Account and ownership of the Account remains in the estate of the last surviving Party. If an addition is made to the Account by anyone other than a Party establishing the Account, the addition and accruals to the addition are considered to have been made by a Party. All deposits to a Convenience Account and additions and accruals to the deposits may be paid to a Party establishing the Account or to a convenience signer. The Credit Union is completely released from liability for a payment made from the Account to a convenience signer before it receives notice in writing signed by a Party not to make payment in accordance with the terms of the Account. After receipt of the notice from a Party, the Credit Union may require a Party to approve any further payments from the Account. If the Credit Union makes payment of sums on deposit in a Convenience Account to a convenience signer after the death of the last surviving Party establishing the Account, and before the Credit Union has received written notice of the last surviving Party's death, the Credit Union is completely released from liability for the payment. If the Credit Union makes payment to the personal representative of the deceased last surviving Party's estate after the death of the last surviving party and before service on the Credit Union of a court order prohibiting payment, the Credit Union is released to the extent of the payment from liability to any person claiming a right to the funds. The receipt by the representative to whom payment is made is a complete release and discharge of the Credit Union. 5. Accounts for Trusts. At our option, we may accept deposits in the name of a revocable or irrevocable trust subject to such membership requirements as we may impose from time to time in keeping with applicable law. If you request that we open an Account in the name of a trust, you agree that we are authorized to release the funds in any such Account upon the signature of any Trustee. You agree that if we make payment to any Trustee or Successor Trustee, or at the direction of any one of the Trustees or Successor Trustees named, that payment shall be valid and shall discharge us from any liability for the sums paid. You agree that we shall have no fiduciary responsibility or obligation in connection with any such Account beyond our obligations set forth in this Agreement, and that we shall serve solely as a depository for the trust funds. You and any Trustee agree to save, indemnify, defend, and hold us harmless from any claim, demand, suit, or other charge by any person arising out of or resulting from the establishment, maintenance, and transaction of any business related to the trust and any Account established for the trust. 6. IOLTA Checking Accounts. IOLTA (Interest on Lawyers Trust Accounts) RBFCU offers IOLTA checking accounts for lawyers according to the rules and guidelines set forth by the Texas Access to Justice Foundation. The lawyers must qualify for membership and have a primary savings account. The IOLTA account can only be set up as a checking account. 7. Uniform Transfers to Minors Accounts. At our option, we may accept deposits in Accounts established by a custodian under the Texas Uniform Transfers to Minors Act (TUTMA). A TUTMA Account is owned by the minor, and amounts deposited into the Account constitute an irrevocable gift to that minor. The custodian named is the sole Party entitled to access the Account for the minor's benefit. We have no duty to (i) determine if the person designated or acting as custodian has been duly designated, (ii) determine if an act of the custodian is in accordance with or authorized by the Texas Uniform Transfers to Minors Act, (iii) question the validity or propriety of any instrument or any instructions executed or given by a person acting as a donor or custodian or (iv) oversee the application by a custodian of money or other property paid or delivered to the custodian. 8. Accounts for Minors. At our option, we may accept deposits in the name of a minor. We may require that a minor Account have a creditworthy joint owner at least 18 years of age who shall be jointly Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 9 of 31 M161AA R 04-28-15 5 and severally liable for any amounts owing to us out of the Account. We may make payments or deliver other rights solely to the minor without regard to the minors minority, and you acknowledge and agree that we are discharged from liability to the extent of any such payment or delivery. We have no duty to inquire of the use or purpose of any transaction requested by the minor or any joint Owner. If you request that we open a minor Account on which the minors parent or guardian will not be a joint Owner, we may require the parent or guardians consent before opening the Account. We may also require that the Account Owners give written consent to allow the minor’s parent or guardian to access information about the Account. You may not pledge a minor Account as collateral for a loan or for any other purpose. When the minor reaches the age of 18, we may require the consent of all Account owners before changing the form or ownership of the Account. 9. Accounts for Guardianships and Estates. At our option we may accept deposits in the name of (i) a ward on whose behalf a Guardianship has been established under applicable law, or (ii) the estate of a deceased member being administered under applicable law. Any guardian or estate representative (whether executor, administrator or otherwise) authorized to sign on any such Account shall be subject to the terms and conditions set forth in this Agreement and any other agreement governing any such Account. You agree that we will have no fiduciary responsibility or obligation in connection with any such Account beyond our obligations otherwise set forth in this Agreement or other applicable agreement, and you agree that we will not be liable for any loss occasioned by the fraud, negligence, or misapplication of funds by the guardian or estate representative. If we are presented with Letters of Guardianship, Letters Testamentary, or Letters of Administration valid on their face, you agree that we will have no further duty to (i) determine if the person appointed guardian or estate representative has qualified or continues to be qualified as guardian or as estate representative, (ii) determine if an act of the guardian or estate representative is in accordance with or authorized by the Texas Probate Code or other applicable law, (iii) question the validity or propriety of any instrument or any instructions executed or given by a person acting as a guardian or estate representative, or (iv) oversee the administration by a guardian or estate representative of money or other property paid or delivered to him or her. You agree that we may rely upon Letters of Guardianship, Letters Testamentary, or Letters of Administration that are valid upon presentment, that we may continue to rely upon the same without inquiring into their expiration or renewal, and that we may assume their renewal unless notified in writing to the contrary. Further, you agree that we will have no obligation to recognize or honor any such Letters that we know to have expired without renewal pursuant to the provisions of the Texas Probate Code or other applicable law. If we receive notice of expiration without renewal, we will have no obligation to honor any check that is presented for payment or to honor any requests for withdrawal of funds from the Account of a ward or an estate until we receive renewed Letters or another order issuing out of a court of competent jurisdiction. 10. Representative Payee Accounts. At our option, we may accept deposits in Accounts established in a member’s name and for the member’s benefit by an individual appointed as a Social Security Administration or Veterans Administration “Representative Payee.” Funds in a Representative Payee Account are owned by the member beneficiary. Only the Representative Payee, however, shall have direct access to the funds on deposit. If an Account is opened, you (whether as beneficiary or as Representative Payee) agree that we may accept deposits, including direct deposits from the Social Security Administration and Veterans Administration, that we may permit withdrawals from the Account by the Representative Payee through such means as we may prescribe from time to time, and that we may restrict access to the Account by the beneficiary. You agree that the Representative Payee alone will be responsible for compliance with the Rules of the Social Security Administration or Veterans Administration governing such Accounts. You agree that if we make payment to or at the direction of a Representative Payee, any such payment shall be valid and shall discharge us from any liability for the sums paid. You agree that we may rely upon any appointment of a Representative Payee that is valid on its face, that we will have no fiduciary responsibility or obligation in connection with any such Account beyond our obligations otherwise set forth in this Agreement, and that we will have no duty to oversee the application by a Representative Payee of any funds withdrawn from the Account. You agree that, if any deposit to an Account is subsequently reversed, whether by the Social Security Administration, Veterans Administration, or otherwise, we may transfer funds in other Accounts held by the beneficiary or the Representative Payee in order to cure any overdraft that may occur as a result of such reversal. You agree to save, indemnify, defend, and hold us harmless from any claim, demand, suit, or other charge by any person or entity arising out of or resulting from the establishment, maintenance, and transaction of any business related to a Representative Payee Account or any other Account designated for the receipt of government benefits. 11. Organizational Accounts. An organization may be able to open an account with RBFCU if all organization members/participants (present and future) are eligible for membership at RBFCU. The organization must be assigned a taxpayer identification number through the Internal Revenue Service. A new request must be presented for future signer changes. There are account limitations on Organizational Accounts. 12. Business Accounts. In this section, the term "Business Account" means any Account maintained or opened by or in the name of any corporation, partnership, sole proprietorship, unincorporated association or club, limited liability company, or other organization. The words “you” and “your” mean the Account Owner named on the Non-Personal Membership Application or any other document or instrument executed in connection with the opening, maintenance, or modification of any Business Account with us. By opening or maintaining any Business Account with us, you agree that the following terms and conditions apply to and govern any such Business Account in addition to the other terms of this Agreement. In the event of a conflict between the terms in this section and other parts of the Membership and Account Agreement, the terms and conditions herein shall control. (a) You expressly represent that: (i) the Account Owner named on any Application is duly organized, validly existing, and in good standing under the laws of the state where organized and has filed Articles of Incorporation, Certificates of Limited Partnership, or Assumed Named Certificates in a manner sufficient to ensure that no other person or entity shall conduct business under the same name or any name deceptively similar to that of the Account Owner, (ii) each officer, partner, agent, representative, or other party who signs on any Application as an Authorized Signer is qualified and authorized to sign in the capacity represented and is empowered to so act on behalf of the Account Owner named, and (iii) the Account Owner named on any Application is either presently a member of the Credit Union or is eligible to apply for membership in keeping with the membership requirements set forth below. (b) Any of the Authorized Signers on any Application shall be authorized to transact business on behalf of the Account Owner with respect to the Business Account(s) designated on the Application and are authorized to (i) close any such Business Account(s), (ii) deposit and withdraw any of the funds of the Account Owner in such Business Account(s), whether represented by cash, checks, notes, or other evidences of debt, (iii) sign for and receive the statements and records of the Account Owner with respect to any such Business Account(s), (iv) stop payment against checks or other payment orders, (v) make withdrawals or transfers from any such Business Account for the purpose of purchasing Certificates in the name of the Account Owner and to redeem any such Certificate in the name of the Account Owner, and (vi) make any other agreements Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 10 of 31 M161AA R 04-28-15 6 and stipulations with us with respect to such Business Account(s) and to bind the Account Owner thereto. (c) The endorsement of the Account Owner of items for deposit may be written or stamped without designation of the party making the endorsement. (d) We are authorized to honor any and all withdrawals of the Account Owner's funds by any one of the Authorized Signers, whether such withdrawals are presented for cash or for credit to the personal account of such party, and we need make no inquiry concerning any such action. You acknowledge that you may not stipulate that withdrawals and other actions be performed and signed by two or more Authorized Signers. You agree that any designation by you requiring the signatures of two or more persons is for your internal business purposes only and is not binding on us. (e) We will not be liable for any loss occasioned by the fraud, negligence, or misapplication of funds by any of the Authorized Signers. The Account Owner and all of the Authorized Signers, jointly and individually, agree to defend, indemnify, and hold us harmless from any claims, demands, expenses, losses or damages, resulting from or directly or indirectly related to any activity of such parties with regard to any Business Account maintained with us. (f) The Account Owner and the Authorized Signers agree to execute or provide such additional documentation as we may require or deem appropriate in connection with the opening and maintaining of any Business Account. (g) The Account Owner and all Authorized Signers authorize us to recognize the facsimile signature(s) appearing on any Application and to charge the Account Owner for all checks, withdrawals, or similar orders drawn on Business Accounts maintained by the Account Owner. We will be so authorized so long as any facsimile signature reasonably resembles the facsimile signature appearing on any Application. (h) We may adopt policies from time to time under which we may issue Check Cards, other electronic access devices, or personal identification numbers (PINs) to persons designated by the Account Owner, at the Account Owner's request. You acknowledge and agree that the issuance of an access device or PIN in connection with a Business Account affords ready access to the Business Account by the person or persons authorized by the Account Owner, as well as other persons who are provided access to the access device or PIN, or who otherwise obtain the access device or PIN whether by way of negligence, theft, collusion, or otherwise. As a result, you acknowledge and agree that the Account Owner and the persons authorized by the Account Owner to receive an access device or PIN are solely responsible for their use. In addition to the foregoing provisions, electronic fund transfers to and from a Business Account are subject to any additional terms and conditions provided to you at the time your request for an electronic fund transfer service is approved. (i) If you contract for an Electronic Fund Transfer service, we may communicate with you and others authorized to use your PIN from time to time. Those communications may include your PIN. We will send those communications to your address as reflected in our records, and you agree that we have no liability to you or to any other person if our communication to you is stolen or otherwise intercepted by any person at any time. You agree that the terms set out herein and in the remainder of the Membership and Account Agreement and Electronic Fund Transfers Agreement and Disclosures regarding the security and safekeeping of your PIN and the security of electronic fund transfers transactions in general are commercially reasonable and you agree to be bound by and to comply with these terms. Authorizations given to other persons are considered unlimited in amount and manner until you notify us in writing and we have had a reasonable opportunity to act on your notification. (j) In order to add or delete Authorized Signers from any Business Account, (i) the Account Owner may close the Business Account and a open a new Business Account through the execution of a new Non-Personal Membership Application or, (ii) the Account Owner may modify the Business Account to provide for any such addition or deletion by completing a new Membership Application or such other form as we may require, bearing the signatures of all persons who thereafter are authorized to sign on behalf of the Account Owner. We reserve the right to require that a new Business Account be opened when adding or deleting Authorized Signers. In order to add or delete Authorized Signers on any Business Account, whether by way of Account closure or modification, we may require the presentment of a new certificate of corporate resolution or a new certification and authorization in the case of a sole proprietorship, partnership, association, or other business entity, specifying the action to be taken and setting forth those individuals who thereafter will be authorized to transact business on behalf of the Account Owner. You acknowledge and agree that, if the Account Owner elects to add or delete Authorized Signers by way of Account modification rather than by closing the Business Account(s), we may not be able to verify effectively whether any check presented is signed by an Authorized Signer, and you agree that we are not required to examine any instruments presented. In the event of a Business Account modification, you agree that the Account Owner is solely responsible for denying any deleted signer access to the Business Account and that we will not be liable for the payment of checks or orders signed or made by any deleted signer. (k) A Business Account may not be established at the Credit Union unless the Account Owner is eligible for membership in the Credit Union. A business may be eligible for Credit Union membership if the business is listed in our field of membership or is physically located within geographical areas that have been approved by the National Credit Union Administration as being in our community field of membership. Otherwise, for sole proprietorships, the individual owner(s) must be within our field of membership. For corporations, all of the corporate shareholders must be within our field of membership. For partnerships, all of the partners must be within our field of membership. For unincorporated associations, limited liability companies, and other businesses and organizations, all of the members of any such association, organization, or company must be within our field of membership. (l) Business Accounts are subject to the rates and fees set forth periodically in the Truth in Savings Rate and Fee Schedule, which is incorporated into this Agreement by reference. You acknowledge and agree that any Truth-in-Savings Account Disclosures that may be provided to you in connection with a Business Account other than the Rate and Fee Schedule are made for the benefit of, and are applicable only to natural- person members of the Credit Union who hold an Account primarily for personal, family, or household purposes. To the extent that those disclosures are also accurate with respect to Business Accounts, they are provided for informational purposes only and without any corresponding intent to extend coverage of the Truth-in-Savings Act and implementing regulations to Business Accounts. (m) Business accounts must deposit checks and then withdraw funds. Check cashing is not available on business accounts. (n) We do not accept Business Accounts for businesses engaged in a money service business. A money service business is generally defined as (i) a currency dealer or exchanger, (ii) a check casher, (iii) an issuer, seller, or redeemer of traveler’s checks, money orders, or stored value, or (iv) a money transmitter. The credit union reserves the right to close any account engaged in the above activity. The credit union may elect to close the checking account and restrict the savings account to "mail only" access. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 11 of 31 M161AA R 04-28-15 7 (o) We are prohibited from processing illegal transactions, through your Accounts or through our relationship with you, including unlawful Internet gambling transactions. You may not use your Account in any manner or for any transaction that we believe poses an undue risk of illegality, and we may refuse to process or authorize any such use or transaction. We may also impose restrictions on your Account, including restricting your access to Account services, or we may close your Account, if you engage in any unlawful activity. If you use your Account relationship or engage in a transaction that is determined to be illegal, you will be liable to us. You waive any right to take legal action against the Credit Union for any illegal use or transactions and you agree to indemnify, defend, and hold harmless the Credit Union and any third-party processors from and against any lawsuits, other legal action, or liability that results directly or indirectly from such illegal use or transactions. You agree to certify to us at Account opening and, if requested, annually that you do not engage in an Internet gambling business. You authorize us to investigate the Account Owner, the principals’, and the Authorized Signers’ background, including without limitation any financial institution and payment processor references. You also agree to notify us immediately if any time the Account Owner’s business changes in any way that causes any prior certification to be inaccurate. If you certify to us that the Account Owner has legal authority to engage in an Internet gambling business, you acknowledge that we may choose to close the Account in our sole and absolute discretion. CHECKS/ACH/DEBITS 1. Payment Authorization. You authorize us to pay checks signed by you and charge the payments against the applicable Account. Only checks or other methods approved by us may be used to withdraw funds from your Account. You agree that it will be your responsibility to verify the accuracy of information appearing on any checks, deposit slips, or other forms, and you agree that we will not be liable for any printing errors on any such forms. All checks, withdrawal forms, deposit slips, and transfer instructions used in connection with any Account must be on forms that we provide or otherwise expressly approve in writing. You agree to complete checks using a non-gel, black or dark blue ink that will readily transfer during any imaging of the check. We will not be liable for any resulting losses, and you agree to hold us harmless from such losses, if you fail to meet your obligations as set forth in this paragraph. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. To avoid fees, you should ensure that your Account contains sufficient available funds at all times to pay each of your transactions. In making distributions upon the death or disability of any Party, you agree that we may rely upon the form of the Account at the time of any such death or disability. If an instrument (check) contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers (UCC3-114). 2. Stale Items. We are under no obligation to pay a check that is presented for payment more than six months from its date. In the event that a check drawn on your Account is payable by its terms within a stated period of time, we are under no obligation to pay that check if it is presented after the expiration of that time period. 3. Overdrafts and Overdraft Protection. You agree to maintain funds in your Accounts at all times sufficient to pay any withdrawal order (whether oral, written, or otherwise) or item presented for payment against the applicable Account. We are under no obligation to pay any order or item (i) the amount of which exceeds the available balance in the Account upon which the order was made or the item was drawn, or (ii) that would exceed limitations imposed upon the applicable Account under our policies and procedures or under applicable law, including Federal Reserve Board Regulation D. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. In the event that we do pay any such item, we will not waive our right to dishonor any subsequent items presented. If we do pay an item, the amount of which exceeds the balance in the Account upon which it is drawn, or if any item deposited to your Account is subsequently returned and charged back to your Account creating an overdraft, you agree to pay us immediately the amount by which that Account is overdrawn together with any fees that we might assess. You also authorize us to deduct any overdraft from your next deposit (including a direct deposit of social security or other government benefits), to withhold or to transfer funds from any other Account to which you are Party in amounts sufficient to cover any overdraft and resulting overdraft fees, or to use any other collection remedy available to us by law. If you write a check or take any other action that would result in an Account becoming overdrawn, then unless you have specifically refused automatic overdraft protection from your Accounts, such check or action taken shall be deemed to be a request by you to us to transfer available funds from your Savings Account or any other Account permitted by us (subject to Regulation D automatic transfer limits), or to make an advance under your Line of Credit Agreement with us, in $100 increments (or a lesser amount if your available amount is less than $100 but sufficient to pay the item(s) presented) to pay such check or otherwise remedy the overdraft, together with any service charge we may impose. We will use our best efforts to transfer funds from other eligible accounts to your Checking Account, or to make an advance under your Line of Credit Agreement, in the manner in which you have directed. Our Courtesy Pay service may be available when no other form of overdraft protection is available. Courtesy Pay is offered as a courtesy to our members who qualify for this service. Due to regulatory requirements members must “opt in” for Courtesy Pay at account opening or through any of our branch locations, Member Service Center, or NetBranch online. Your ability to “Opt In” may be limited or restricted to prevent structured or intended abuse of the program. Courtesy Pay is available to cover all transactions (checks, ACH, and debit card) or checks and ACH only. Courtesy Pay can be revoked at our sole and absolute discretion. If sufficient funds are not available, then any such item presented may be returned to the payee due to insufficient funds and a charge made to your Account in such amounts as we may establish from time to time. Each Party to any of your Accounts will be jointly and severally liable for overdrafts and other obligations owed to us that are caused by any other Party to the Account. 4. Signatures. You authorize us to recognize any of the signatures set forth on the Application in the payment of funds or the transaction of any business for your Accounts. You authorize us to pay a check presented for payment even though the signature or signatures thereon do not correspond exactly with the signatures on the Application. We are not obligated to honor a check unless the signature or signatures do correspond exactly with the signatures on the Application. We may recognize facsimile signatures, signatures imprinted by mechanical devices, or any other methods of authentication, including orders to pay that are received electronically or telephonically. You agree that we may act upon and rely upon documentation, correspondence, or other instructions with respect to your Accounts that we receive by way of electronic or facsimile transmission, including Account agreements, requests to modify Accounts, loan agreements, and any other order with respect to your Accounts, and you agree to such verification procedures as we may implement from time to time. You agree that we may maintain copies of Account records, including copies maintained electronically, in lieu of any originals and that any such copies will be considered original records for any purpose, including admissibility in evidence as original records before any court or administrative agency. 5. Postdated, Incomplete and Conditional Items. You agree to hold us harmless from any and all loss and liability that we may incur due to our inadvertent payment of incomplete or postdated items, items endorsed "without recourse," or conditional items. You agree that we will not have any duty to discover or comply with postdated, incomplete, or conditional items. You agree that we may disregard any information on any check or draft other than the Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 12 of 31 M161AA R 04-28-15 8 amount of the item, the identity of the drawee bank, any magnetically encoded information, and the signature of the drawer, regardless of whether that information is consistent with any other information on the item. You agree that we may decline to accept, process or pay any item or order that, in our estimation, is ambiguous or otherwise unclear in its terms. You also agree that, at our option, we may use our best efforts to resolve any such ambiguity and you agree to release and hold us harmless from any and all loss and liability that we may incur or that may arise in connection with our attempts to resolve any such ambiguity. 6. Wire Transfers, Automated Clearing House (ACH), and Other Payment Order Transactions. (a) Governing Regulations. If you send or receive a wire transfer, Fedwire may be used. Federal Reserve Board Regulation J is the law that covers transactions made over Fedwire. If you are a party to an Automated Clearing House (ACH) entry, you acknowledge and agree that any such entry will be governed by the National Automated Clearing House Association (NACHA) Operating Rules, the Rules of any local ACH, and the Rules of any other system through which the entry is made. Other payment orders you make may be governed by Article 4A of the Texas Business & Commerce Code. (b) Notification. Under NACHA Rules, we are not required to give you next day notice of the receipt of an ACH entry and we will not do so, nor will we give you next-day notice of the receipt of a wire transfer. However, we will notify you of these transfers in your Account Statement. (c) Provisional and Final Payment. If we credit your Account for an ACH entry or a wire transfer, the credit is provisional until we receive final settlement for the payment order. If we do not receive final settlement, or if we credit your Account by mistake, we are entitled to a refund of the amount credited and you agree that, at our option, we may reverse the credit or require that you reimburse us by way of direct payment. (d) Identifying Account Numbers. You agree that we can rely upon any identifying account number given to us in connection with any ACH or wire transfer, even if the number identifies a person different than the named beneficiary or a financial institution different from the named financial institution. You agree that neither we nor any other institution involved in the transaction has a duty to determine whether the number given matches the intended beneficiary or the named financial institution. RBFCU may rely upon the identifying number of the Beneficiary or The Receiving/Beneficiary financial institution (such as routing number, account number), as instructed. The Receiving/Beneficiary Financial Institution may make payment using the account number even if it identifies a person or entity different from the named Beneficiary. (e) Our Liability; Interest Payable. We may be responsible for your direct expenses if we fail to exercise ordinary care in carrying out your instructions in connection with a wire transfer transaction. In no event, however, will we be liable for any special, indirect, exemplary, or consequential damages (including lost profits) of any kind. We are not required to pay interest on any amount we may owe to you due to an unauthorized wire transfer arising out of our error unless you exercise ordinary care to discover the unauthorized transfer and promptly advise us of the relevant facts within the time period set forth below in the Account Statements paragraph. Any rate of interest that we might be obligated to pay to you as a matter of law for a delay or incorrect transfer arising out of our error will be the lower of the federal funds rate at the time of the correction or the dividend rate that we pay on the Account to or from which the funds transfer should have occurred. RBFCU will not be liable for any lost or misapplied funds caused by erroneous transfer details provided to us. Please ensure you verify all transfers details to ensure prompt and accurate delivery. (f) Security Procedures. You agree that we may verify the authenticity of payment orders using our security procedures in place at the time of any such order, which may include a combination of signature verification, call back procedures, the use of identifying words or numbers, and identification via employee ID badge, valid driver’s license, or other photo identification document. To prevent unauthorized access to your accounts, you agree to protect and keep confidential your account number, online username and passwords, or any other items of personal information that we may utilize to confirm your identity, from any person not authorized to access your accounts. This responsibility includes, without limitation, utilizing up to date web browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. You acknowledge and agree that the security procedures used by RBFCU are commercially reasonable. In some cases we may take additional actions to verify the authenticity or detect an error in a Wire Transfer request. Any additional actions will not be considered part of an agreement and may only be used periodically. If you disclose your account numbers, usernames, or Passwords to any person(s) or entity, you assume all risks and losses associated with such disclosure. If you permit any other person(s) or entity to use your account to request Wire Transfers or to access or use your account numbers, user names, passwords, or other means to access your accounts, you are responsible for any transactions and activities performed from your accounts and for any use of your personal and account information by such person(s) or entity. If you believe someone may attempt to use or has used the Service without your permission, or that any other unauthorized use or security breach has occurred, you agree to immediately notify RBFCU. (g) Force Majeure. We are not liable for a failure to execute a payment order according to your instructions if an interruption in communication facilities or some other circumstance beyond our control such as fire or flood prevents the transfer, despite reasonable precautions we have taken. (h) Cutoff Times. We reserve the right to require notice at least three business days in advance in order to cancel or amend an ACH payment order. If we do accept a request to amend or cancel an ACH payment order in fewer than three business days of the post date, and have a reasonable time to act on the request, an attempt to accept the request will be made but we will not be responsible. All other transfers, payment orders, and communications canceling or amending payment orders received after 2:30 p.m. on each weekday we are open that is not a holiday may be treated as having been received on the next banking day and processed accordingly. All transfer received will be reviewed and processed within a commercially reasonable time, generally within one business day. (i) General. You agree that only our forms, methods, and procedures may be utilized. You also agree that in the event of an error, we may correct any such error without prior approval by you. Any authorization you make to initiate paperless debit or credit entries will remain in effect until we receive written notice from you that your authorization has been revoked in a manner and in time to provide us with a reasonable opportunity to act on it. We may delay posting international wire transer and electronic transactions to your Account if such action is necessary to comply with requirements set forth by the Office of Foreign Assets Control (OFAC). We may refuse to credit an Account for a wire transfer or electronic transaction if such action would violate OFAC requirements. RBFCU must have 1) Beneficiary name and address as it appears on the account at the receiving financial institution; 2) account number; 3) receiving/beneficiary financial institution to complete the transfer successfully. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 13 of 31 M161AA R 04-28-15 9 7. Stop Payment. You may stop payment of items drawn on your Accounts. You agree to hold us harmless from any claim, loss, damage, or expense that we may incur, including attorney’s fees, resulting from our refusing payment of any item on which you have stopped payment or from the payment of any item after your stop payment order has expired. A stop payment order on checks will be effective for six months and must be renewed every six months thereafter if you wish for it to be extended. Stop payment requests on electronic fund transfer items will be placed for an indefinite period of time. A stop payment order, a renewal of an order, or a revocation of any such order shall not be effective unless delivered to a member of our staff during our regular business hours and until we have had a reasonable opportunity to act on it. Due to computer systems limitations, we can intercept an item subject to a stop payment order only if the precise amount, date, check number, name of payee, and any other information that we may reasonably require is provided. If that information is not provided, we will not be responsible if we are unable to stop payment. If the order is made orally, we have no obligation to honor it, but we normally will accept an oral stop payment order. Any stop payment order, renewal, or revocation will incur a charge as set forth on our Fee Schedule. You agree that we may honor a stop payment order, revocation, or renewal if made by the person who signed the check to be stopped or by any other person who has signed the Application or is otherwise authorized to transact business relating to the Account. You agree that we will not be liable for any inadvertent payment of any item, notwithstanding a stop payment order, if we have used ordinary care and followed our usual practices in handling such an order. If an item is paid over a valid stop payment order due to our failure to exercise ordinary care, we may be liable to you for any loss you suffer as a result of that inadvertent payment. You agree, however, that it will be your responsibility to establish any such loss. You agree that we will never be liable for more than your actual loss and that we will not be liable for any consequential damages. If we do credit your Account after paying an item over a valid stop payment order, you agree to take whatever action we deem necessary to transfer to us all of your rights against the payee or holder of the item and to assist us if we take legal action against the payee or any other person. For information concerning your right to stop payment of preauthorized electronic fund transfers, please refer to your Electronic Fund Transfers Agreement and Disclosures. You may not stop payment of Credit Union Official Checks issued by us at your request. You may not stop payment of transactions initiated through the use of an ATM card, a check card, or a similar device at an ATM or at a point of sale. 8. Limitations on Preauthorized Transfers. Under government regulations that apply to Share and Money Market Accounts, you may not make more than six transfers and withdrawals, or a combination of such transfers and withdrawals from such Accounts, per calendar month to another Credit Union account of yours or to a third party by means of a preauthorized, or a telephonic agreement, order, or instruction (including transfers by personal computer or other data transmission). Withdrawals by mail, messenger, ATM, or in person, and transfers to make payments on your loans with us are not included in this limitation. However, automatic overdraft protection transfers, HAL transfers, and NetBranch transfers from your Savings and Money Market Accounts are included in this limitation. If you exceed the number of transfers permitted, your account may be subject to fees, returns or closure. 9. Credit Union Liability. Except for losses caused by our failure to exercise ordinary care or our failure to act in good faith, you agree that we will not be liable for any action or inaction regarding the payment or non-payment of items, collection of items, other withdrawals, or the transfer of funds in satisfaction of overdrafts. Subject to applicable law, you agree that we will never be liable for any consequential damages arising out of or related to our obligations under this Agreement. 10. Checks/ACH/Debit Clearing Process. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. We do not pay items by check number, dollar amount of the item or by transaction type (debit, check or ACH). In the event you do not have the funds to clear an item we will use the overdraft options you have selected. This may be a transfer from your savings account (limitations do apply for this option - refer to the overdraft section of this membership agreement) or by an advance on your Line of Credit. There are no fees associated with these overdraft options. If your account is qualified for Courtesy Pay (note: you must opt-in for courtesy pay) we may pay the item resulting in a negative balance on your account. There is a fee associated with this service and the negative balance must be cleared within 45 days. There are daily limits on your eligible courtesy pay amount that is determined by your account deposit habits and may change from day to day. Do not rely on this method to pay your items - it is intended only as a courtesy in the event you accidently overdraw your account. Refer to Courtesy Pay in our Overdraft section of this membership agreement. In the event that no overdraft options exist on your account at the time the item is presented it will be returned unpaid and your account will be charged an insufficient fund fee. DEPOSIT OF ITEMS 1. Handling of Items. We act only as a collecting agent for any items deposited. Any deposit that we accept will be provisional and will be subject to subsequent payment verification. We are not responsible for any deposit or other transaction initiated by mail until the item is actually received. We will not be responsible for any deposit or other transaction made through the use of our night depository or any other unattended facility until the item or items are actually removed from the depository or facility by our personnel. We will not be responsible for any deposit or other transaction during the course of delivery to us by any courier or other third party until the item or items are actually received by our personnel. We have the right to endorse all checks payable to you for deposit into your Account. We will not be liable for the negligence of any correspondent bank or institution nor for any loss incurred in transit when items are forwarded to correspondents. We will not be liable for any delay as a result of any interruption of communication facilities or any other circumstances beyond our control. You agree to bear the risk of any change in the exchange rate with respect to any items that may be payable in foreign currency. You agree that we may charge back any item before payment without notice, regardless of whether the item has been returned. You agree that, if a check that has been deposited to your Account or cashed by you at the Credit Union is subsequently returned based upon a breach or alleged breach of any transfer warranty, presentment warranty, or otherwise, we may charge back the amount of any such item to your Account at any time without notice. You agree that we may resubmit an item that has been returned to us for payment, and you waive notice that an item has been dishonored or charged back against your Account. You also agree that, if we are charged a fee by any other institution in connection with any of your Accounts, that fee expense may be charged to your Account. 2. Endorsement Standards. The area from the trailing edge of a check to 1.5 inches from the trailing edge of a check is reserved for the payee's endorsement. The trailing edge of a check is defined as the left side of the check looking at it from the front. You and all other endorsers must make your endorsement within this prescribed area. If any endorsement or other writing that you or any other endorser makes causes any error or delay in the processing of the item, you agree that you will be liable for any loss that we incur as a result of that delay or error, and you agree to hold us harmless from any such loss. 3. Right to Refuse Deposit. If you request that we accept for deposit a substitute check that was not created by a financial institution or a check that has already been deposited at a financial institution but returned, we are under no obligation to accept the check for deposit. If we do, however, you agree to hold us harmless Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 14 of 31 M161AA R 04-28-15 10 from any loss or liability, including consequential damages, attorney's fees, and expenses that may arise because of our acceptance of the item. In any event, in our discretion, we may refuse any deposit, limit the amount that may be deposited, accept all or any part of a deposit for collection only, return all or any part of any deposit, or close the Account subject to applicable regulations. 4. Deposit Verification. If a deposit is made to your Account and we subsequently determine that the deposit or the amount of the deposit initially credited was incorrect, we may correct any such error and make corresponding adjustments to your Account in order to reflect the correction. 5. Accrual of Dividends. When you make a deposit, dividends begin to accrue on the day your deposit is posted. However, if your deposit is returned to us, we reserve the right to make dividend adjustments and you may be charged a fee. GENERAL PROVISIONS 1. Account Security. In the event of a security issue related to your Account, you agree that we may notify you using your contact information listed in our Account records, including your e-mail address. 2. Account Statements. RBFCU member statements (monthly and quarterly) are delivered by mail unless the member “opts in” for each applicable account to receive electronically. If the member “opts in” they will no longer receive a printed statement by mail. You are responsible for promptly examining each Account statement. Any objection that you may have respecting any unauthorized withdrawal, any payment order (including a wire transfer), or any other item or deposit shown on or missing from a statement, except for electronic fund transfers, will be waived unless made in writing to us, and received on or before the 33rd day following the date the statement is delivered (60th day if your claim relates to a substitute check), subject to applicable law. You agree that we will not be liable for any unauthorized withdrawal, any payment order, any forged, unauthorized, or altered item drawn on or deposited to your Account, any item with missing signatures or endorsements, any missing or diverted deposit, or any other error or discrepancy if you fail to notify us within the applicable time period above, nor will we be liable for any forged or altered item if the forgery or alteration is not readily ascertainable upon inspection. You agree that no legal action may or will be instituted by you against us seeking the recovery of any alleged loss as a result of the payment of a forged, unauthorized, or altered item or as a result of any missing or diverted deposit, or due to any other error or discrepancy, unless you have provided us with notice within the period prescribed above and any such legal action shall have been instituted within two years after the date that the statement containing any such error was mailed or otherwise made available to you. Please refer to your Electronic Fund Transfers Agreement and Disclosures to determine your notification obligations in the event of unauthorized electronic fund transfers or other errors in connection with such transfers. Unless we adopt alternative procedures from time to time, checks drawn on your Account will not be returned to you and copies of checks will be made available to you upon your request, subject to any fee disclosed in the Fee Schedule. You agree that your duty to examine statements promptly and your obligation to notify us in the event of any error is not waived or diminished in any respect by our retention of checks drawn on your Account. Active accounts receive an Account statement monthly for Checking and Loan accounts and quarterly for Savings, Money Market, Certificates and IRA accounts. It is your responsibility to ensure that your statements are received, and you agree that we will not be responsible for the loss or theft of your statements. It is important that you make note of the time that you regularly receive your statement. You agree to notify us immediately and in any event within 14 days of that time, if you fail to receive your statement. You agree, further, to notify us immediately and in any event within 30 days of any changes to your address or other personal or business information on file with us. You authorize us to update your address on file with us if we are notified by the U.S. Postal Service of a change of your address. You acknowledge that we employ an automated collection procedure in order to more efficiently handle the high volume of items we process, and for that reason our procedures generally do not include sight-review of items. You acknowledge and agree that reasonable commercial standards do not require us to sight review every check presented and that any failure to sight review does not constitute a lack of ordinary care in the payment of any item. When Statements are Provided Account Monthly Quarterly  Savings with EFT transactions   Savings   Checking   Money Market with EFT transactions   Money Markets   IRA   Certificates   Loans   Closed Accounts Member will receive final statement after their account is closed on their normal statement date, depending on what type of account above. For security reasons, we destroy statements returned to us by the U.S. Post Office, so please notify us promptly if your address changes. We are not responsible for statements lost while not in our possession. You may obtain a copy of your statement for a nominal fee. Current statements are also available on NetBranch Online. Electronic statements will automatically be re-coded to receive a paper statement upon account closing. The final statement will be paper. 3. Amendment. You agree that we may add to, change, or delete the terms of this Agreement, the Truth-In-Savings Account Disclosures and Rate and Fee Schedules, and any notice, agreement, or policy made a part of this Agreement, from time to time in our sole discretion, subject to applicable law. 4. Attorney's Fees. In addition to any other rights we may have at law or under this Agreement to recover fees and costs, we shall be entitled to recover reasonable attorney’s fees and costs expended in connection with the enforcement of this Agreement and the defense of any rights we may have under this Agreement, and you authorize the Credit Union to deduct any such fees and costs from your Account without prior notice to you. 5. Balance Computation Method. The “daily balance method” is used to calculate dividends on your accounts. This method applies to a daily rate to the principal in the accounts. The daily rate is 1/365 of the dividend rate. Dividend Formula = Balance X Number of Days X (Dividend Rate  365)* *Rounded to eight places Dividend Calculation Method: Dividends accrue from the day the deposit is posted up to (and including) the day of withdrawal. Dividends are calculated using the daily balance method which applies a daily rate to the end of day balance in the account. The daily rate is 1/365 of the dividend rate. Formula dividend calculation: Balance x number of days in dividend period by dividend rate / 365 6. Check Orders. We offer both personal and business checks through our authorized vendor. Many styles offer carbonless duplicates which allows you to keep a copy of the original check. If you require proof of payment, a photocopy of the original check is available by request for a small fee (two free per month). Like a cancelled check, a photocopy is a legally acceptable proof of payment and may be used for other recordkeeping purposes. We ask that you use checks from our authorized vendor. We may be unable to assist you if you encounter problems using another check vendor and may have to refuse to accept those checks if our systems cannot read or process them. 7. Closing the Account. Any owner on an Account may close the Account at any time. Your right to close an Account is subject to any statutory or contractual lien existing in our favor and any legal process levied against any such Account. The credit union Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 15 of 31 M161AA R 04-28-15 11 may close an account if the balance drops below par value for a period of 30 days. 8. Coin Counter. Coin counting machines are located in many branches for our member’s convenience. Members are asked to make sure their coins are free from foreign objects and debris to protect the machine. Members are also asked to be courteous of other members and try to limit usage to reasonable and customary. If there is a disagreement regarding the definition of “reasonable and customary” the Branch Manager will make that determination. Fees may be assessed for excessive use. 9. Contractual Liens. Unless otherwise prohibited by applicable law or our policies and procedures, you may pledge all or any part of your shares and deposits, except for Money Market Accounts and other exempt Accounts, as security for any loan. In addition to any lien we have as a matter of law, you grant us a contractual lien on all shares, deposits, and accrued dividends in any Account in which you have an interest to the extent of any loans made to you and any other obligation of yours that you owe to us, which lien secures repayment of any such loan or obligation to the extent not prohibited under the federal Truth in Lending Act. You are not giving a security interest in any shares or deposits in an IRA or any other Account, which if pledged would result in the loss of special tax treatment under the Internal Revenue Code. You agree that, if any such Account is a Multiple-Party Account, the entire amount in such Account shall be subject to our lien and shall secure the indebtedness of each Owner owing to us. You agree that we may exercise our lien and apply the entire amount in any such Account against the indebtedness of any Owner owing to us notwithstanding the interest of any other Owner in the Account, and without notice. You agree to pay us all expenses and costs, including attorney's fees, that we may incur in defending or enforcing our right to exercise our lien against the indebtedness of any one or more Owners, and you agree that we will not be liable for dishonoring checks or other items where the exercise of our lien or any right of offset that may exist results in there being insufficient funds in the Account to honor such items. If we cash a check for you over the counter at your request and any such check is subsequently returned unpaid for any reason, you agree that we may charge the amount of the item against your Account. If we elect not to enforce our lien at any time, we do not waive our right to enforce that lien on subsequent occasions. The lien secures all direct and indirect indebtedness that you may owe to us whether as a borrower, co-maker, guarantor, or otherwise. You agree that, with regard to any indebtedness owing to us secured by your principal residence, our lien on shares and deposits shall not be construed so as to diminish or forfeit any security interest in or indebtedness secured by such residence, nor shall our lien be construed so as to permit the modification of any claim we may have under applicable bankruptcy law, including 11 U.S.C. §1322(b)(2), and to the extent that this lien is so construed, it is hereby waived and shall be void. To the extent permitted by law, any collateral you pledge to secure a loan payable to RBFCU shall secure your performance of any other obligations owed to RBFCU. 10. Credit Reports. You understand and agree we have the authority at any time to check your credit report and to verify your employment. We may report information about your share and loan accounts to credit bureaus. Late payments, missed payments, or other defaults on your accounts may be reflected in your credit report. If you believe that information we may report or have reported to a credit bureau is inaccurate or incomplete, please notify us in writing at the address listed in this Agreement. Include your name, address, contact telephone number and Account number and identify the information you believe is incorrect. If your notification relates to an incident of identity theft, we will require a copy of your identity theft report filed with law enforcement authorities. 11. Death or Incompetence of Account Owner. We may continue to accept deposits to an Account, to pay items drawn against an Account, to pay other payment orders against an Account, and allow any other transactions with respect to an Account until we are notified of an Account Owner’s death or of an adjudication of incompetence and we have a reasonable opportunity to act upon any such notice. Subject to our policies and procedures, and subject to any separate agreement we may enter into with any surviving Account holder, once we are notified of an Owner’s death or adjudicated incompetence, we may pay items drawn against the Account or other payment orders authorized by the deceased Account Owner for a period of 10 days after the Account Owner’s death unless we are ordered to stop payment by a person claiming an interest in the Account. We may require any person claiming an interest in the Account to indemnify us against any losses arising out of the payment of any such claim, and this Agreement will be binding upon the heirs or legal representatives of any deceased Account Owner or any Account Owner who is adjudicated incompetent. We may continue to pay dividends on an Account following the death of an Account Owner. If any surviving joint Owner is a member of the Credit Union, we may require that the Account be closed and that the funds be transferred to the surviving joint Owner’s Account. Surviving joint Owner spouses may continue to maintain the joint Account of a deceased Account Owner. 12. Department of Defense Address Information Authorization. If you are in the military or civil service, you hereby authorize the Department of Defense and its various departments and commands to verify your Social Security Number or other identifier and to disclose your home address to our employees so that we may contact you concerning your Account(s) with us. All information furnished will be used solely in connection with your financial relationship with us. 13. Dispute Resolution. If (i) we suspect that fraudulent misconduct is or has taken place with respect to any Account, (ii) we are notified that a Party to an Account has died or is incompetent to manage his or her affairs, (iii) we have been notified that a dispute exists between or among Parties to the Account or third parties with regard to their respective interests in the Account, (iv) there are competing claims to funds on deposit, or (v) we are in doubt concerning the respective interests of any Parties to an Account, we may restrict withdrawals from the Account until we are satisfied that any obligation we may have at law and under this Agreement has been met or until any such dispute, doubt, suspected fraudulent misconduct, or probate matter has been resolved by a court of competent jurisdiction or by written settlement agreement entered into by all Parties to the Account and any third party making claim to funds in any such Account. You agree that we may recover any attorney's fees or costs expended in connection with the foregoing, which fees will be payable by you directly or out of the Account made the subject of any such doubt, dispute, misconduct, or probate proceeding, or out of any other Account in which you have an interest. You agree, further, that the Credit Union may impose withdrawal limitations on any of your Accounts at any time, including your ability to access your Accounts electronically or otherwise, if you are delinquent under any obligation you owe to the Credit Union. 14. Electronic Transactions. You agree that we may conduct transactions with you by electronic means. We may act upon instructions received from you by fax transmission, voice mail, e- mail, online, and other means we have approved. 15. Fees and Charges. Your Accounts are subject to certain fees and charges as set forth on the Fee Schedule as adopted and periodically amended by us. You agree to pay all such fees and charges, and you authorize us, without notice to you, to debit your Accounts for all charges and fees we impose. 16. Governing Law. This Agreement shall be governed by the Federal Credit Union Act, the Rules and Regulations of the National Credit Union Administration, the Credit Union's Bylaws, and solely to the extent not pre-empted by federal law, the laws of the State of Texas. Subject to applicable law, you acquiesce and submit to personal jurisdiction in the State of Texas. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 16 of 31 M161AA R 04-28-15 12 17. Identification Requirements. You may be asked to provide acceptable identification (listed on page 2) before we are able to provide services. 18. Inactive Accounts. We may charge a fee for an inactive Account under terms as disclosed in our Fee Schedule. An Account is inactive under applicable law if for more than one year there has not been a debit or credit to the Account because of an act by you or your agent (other than us) and you have not communicated with us. An account is dormant under applicable law if for more than two years there has not been a debit or credit to the Account because of an act by you or your agent (other than us) and you have not communicated with us. An Account is presumed abandoned if (i) the Account has been inactive for at least three years from the date of your last transaction on the Account or your last correspondence with us, and (ii) we are unable to locate you. If an Account is presumed abandoned, we are required to report the abandonment and to pay the funds in the Account to the State of Texas. 19. Legal Process. You agree that we may debit your Account for charges and costs, including attorney’s fees, in connection with negotiations, responses, appearances, and the production of statements, items, or other documents pursuant to subpoenas, court orders, levies, garnishments, or other instruments of legal process to the extent not otherwise prohibited by law. You agree that any levy, attachment, or garnishment against your Account will be subject to our contractual and statutory liens set forth below, and you authorize us to exercise that contractual lien whether or not any outstanding obligation is in default, subject to applicable law. 20. Limitations of Services. We may limit services if (i) we believe that we may suffer a loss if the Account is not closed or we believe that the volume of Account activity exceeds that which we can reasonably and safely process, (ii) we determine that any Party to the Account or party claiming an interest in the Account has been abusive in the use of the Account or in the conduct of his or her affairs with the Credit Union, (iii) there has been a change in Account ownership or a change with regard to the persons authorized to sign on the Account, (iv) our attempts to verify your identity have failed, or (v) your balance remains below the $1 required minimum. It is our policy to withdraw member services otherwise extended to that member, including but not limited to the right to maintain certain Accounts, the right to payment of certain dividends, and the availability of electronic fund transfers services, and you agree that we may do so. Unless expelled from membership, members have a right to maintain a primary Savings Account and to vote in annual and special meetings. Under certain circumstances, services may be reinstated if any loss caused to the Credit Union is subsequently cured. 21. Marketing Offers - Opt Out. For personal information (such as your name, address or certain account-related information) shared among affiliates, you may opt out of direct marketing of products and services to include both RBFCU and third party materials. An opt-out by a joint account holder will be treated as applying to all associated joint account holders. Your choice to limit marketing offers from our affiliates will apply until you notify us to modify your preference. Contact Randolph-Brooks Federal Credit Union If you have questions or if you need to correct information we have on file, please contact us at: Randolph-Brooks Federal Credit Union PO Box 2097 Universal City, TX 78148-2097 Toll-free: 1-800-580-3300 San Antonio: 210-945-3300 Austin: 512-833-3300 22. Mail Holds. We must provide members with an account statement. We offer electronic statements for members who do not want to receive their statements via regular mail. 23. Notary Services. Notary services are available to members free of charge at any RBFCU location. Members are advised to bring their own witnesses as RBFCU cannot guarantee the availability of witnesses due to staffing. 24. Notices and Other Requests. All notices and other requests provided under this Agreement should be sent to: Randolph-Brooks Federal Credit Union P.O. Box 2097 Universal City, TX 78148-2097 Or by overnight/express mail to: Randolph-Brooks Federal Credit Union 1 Randolph-Brooks Parkway Live Oak, TX 78233 Correspondence sent to any other addresses may be delayed. 25. Power of Attorney. We are not required to recognize any power of attorney to act on an account, even if we have previously accepted the power of attorney for other transactions. If we accept a power of attorney, we may continue to recognize the authority of your attorney-in-fact until we receive written notice of revocation or termination and have had a reasonable time to act upon it. We also reserve the right to restrict the types or sizes of transactions we will permit an attorney-in-fact to conduct on a case-by-case basis and may require the attorney-in-fact to present the original power of attorney before conducting any transaction. A person acting under a power of attorney is not an owner of an account, no funds in the account belong to that person by reason of that capacity, and that person has no right of survivorship in the account. 26. Reportable Dividends. Dividends are reported to the IRS for the year they are “made available for withdrawal”. 27. Statutory Lien (Right of Offset). Federal law grants us the right to impress a lien on all funds in any Account that you have with us if you are in default or otherwise fail to satisfy a financial obligation with us. We may exercise this right without further notice to you. This lien applies to all Accounts that you have with us, to the extent permitted by law, including Accounts that you hold jointly with another person. 28. Taxpayer Identification Number and Backup Withholding. The Internal Revenue Service (IRS) requires most recipients of dividends and other payments to give taxpayer identification numbers to credit unions and other payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes. Credit unions and other payers must be given the numbers regardless of whether recipients are required to file tax returns. Credit unions and other payers must generally withhold a percentage of taxable dividends and certain other payments to a payee who does not furnish a taxpayer identification number. Certain penalties may also apply. In the event that (i) you have been notified by the IRS that you are subject to backup withholding due to payee underreporting and you have not received a notice from the IRS that the backup withholding has been terminated or (ii) you provide us with an incorrect taxpayer identification number, the Credit Union is required to withhold payment, in part, of dividends owing to you in amounts determined by the IRS and to pay the dividends withheld to the IRS. 29. Transaction Processing. Transactions initiated after 7pm will post immediately with the effective date of the next day. 30. Waiver and Severability. We can waive or delay enforcing any of our rights under this Agreement without losing them. If any provision of this Agreement shall be declared invalid, unenforceable, or illegal, that provision will not affect the validity, enforceability, or legality of any other provision. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 17 of 31 M161AA R 04-28-15 13 What You Need to Know About Overdraft Fees An overdraft occurs when you do not have enough money in your account to cover a transaction, but we pay it anyway. What Are the Standard Overdraft Practices That Come With My Account? If an overdraft occurs on your account, RBFCU offers standard overdraft practices to help manage your account, including:  Transfer from Savings − We may transfer funds automatically from your RBFCU savings account, if funds are available, at no cost to you. Federal regulations limit transfers to six per month.  Line of Credit (LOC) − Members may apply for a LOC designated towards overdraft protection. If funds are not available in your RBFCU checking account, this LOC may be used to cover the discrepancy up to your loan limit. To learn more, contact a Member Service Representative.  Courtesy Pay − Courtesy Pay provides a level of protection against being declined at checkout lanes and avoids the embarrassment and cost of having a returned check. You have 45 days to repay the transaction amount(s) plus fees incurred. Due to regulatory requirements, Courtesy Pay is only available as an overdraft option to members who “opt in.” You have a choice in how Courtesy Pay is administered on your account. Your options include:  Courtesy Pay available for ALL eligible transactions including checks and debit card transactions  Courtesy Pay available ONLY for checks and transactions made using your checking account number including automated bill payments  No Courtesy Pay on your account Note: Your ability to “Opt In” may be limited or restricted to prevent structured or intended abuse of the program. Courtesy Pay can be revoked at our sole and absolute discretion. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. What Fees Will I Be Charged If RBFCU Pays My Overdrafts? No fees are associated with the transferring funds from savings or LOC. For each Courtesy Pay transaction, there is a fee charged, as set forth on our Fee Schedule. What if I want Randolph-Brooks Federal Credit Union to authorize and pay overdrafts on everyday debit card transactions? You made a selection at the time of your account opening, but if you would like to change your preference you may contact us at one of the phone numbers listed below or visit NetBranch online. Austin: 512-833-3300 San Antonio: 210-945-3300 Toll-Free: 1-800-580-3300 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 18 of 31 M161AA R 04-28-15 14 Electronic Fund Transfers Agreement and Disclosures AGREEMENT 1. Issuance of Card or Selection of Personal Identification Number. In this Agreement and Disclosures (“Agreement”), the words “you,” “your,” and “Party” refer to (i) any person to whom a Randolph-Brooks Federal Credit Union Freedom Check Card (“Card”) is issued, (ii) any person to whom a Personal Identification Number (“PIN”) is issued in connection with any such Card or other electronic fund transfer service, (iii) any person authorized to use or given access to use to any such Card or PIN, and (iv) any owner on any Credit Union Account which may be accessed by the Card or a PIN. The words “we,” “us,” “our,” and “Credit Union” mean Randolph- Brooks Federal Credit Union. You agree that any use of the Card or a PIN by you shall be governed by the terms and conditions set forth in this Agreement, as well as the terms of your Membership and Account Agreement with us, which is incorporated into this Agreement by reference. If the terms of this Agreement conflict with the terms of the Membership and Account Agreement, the terms of this Agreement will control. 2. Overdrafts. You agree that you will not use the Card or a PIN to withdraw or transfer funds from your Account in amounts exceeding the available balance in your Account at the time of any such transfer. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. You agree that we will be under no obligation to make a withdrawal or transfer if there are insufficient funds in your Account. If your Account has sufficient funds to cover one or more but not all checks, withdrawal orders, or electronic fund transfers during any given business day, we may honor those items, allow those withdrawals, or make any such electronic fund transfers in any order that we choose in our sole discretion including first honoring any such checks, orders, or transfers payable to us, and dishonoring or refusing any item, order, or transfer for which there are insufficient funds available thereafter. If you have applied and been approved for overdraft protection with us, you agree that your use of the Card or a PIN shall be subject to the Overdrafts and Overdraft Protection section of the Membership and Account Agreement. Due to regulatory requirements, Courtesy Pay is only available to members who “opt in” as an overdraft option. 3. Card and PIN Security. You agree to keep your Card and PIN in a place of safekeeping, to refrain from disclosing your PIN to any unauthorized third party, to refrain from writing your PIN on your Card, and to refrain from recording or displaying your PIN in such a manner that it will be accessible by unauthorized third parties. You agree that the use of the Card or a PIN by (i) you, (ii) any other applicant, (iii) any Party to any of your Accounts that may be accessed by the Card or PIN, (iv) anyone you permit or authorize to use your Card or PIN, and (v) anyone to whom you disclose your PIN or give access to your Card or PIN shall be deemed an authorized use for which you shall be liable. You are responsible for reporting the loss or theft of your Card or PIN to us as soon as possible after the loss or theft. 4. Surrender, Cancellation, and Amendment. You agree to surrender your Card to us upon demand. You agree, further, that the Card shall at all times remain our property and that we may terminate any one or more electronic fund transfer services or cancel this Agreement at any time, subject to such notification as may be required by applicable law. You also agree that we may add to, change, or delete the terms of this Agreement from time to time, subject to such notification as may be required by applicable law. 5. Freedom Check Card Preauthorization Holds. When you use your Card at certain merchants such as gas stations (pay at the pump), restaurants, nightclubs, hotels, airlines, and rental car companies, the merchant may request a preauthorization hold from us to cover the final transaction amount. The preauthorization hold may be in a greater amount than the actual purchase amount and may be placed on your Account for up to three days. You may not access funds that are subject to a preauthorization hold. Preauthorization holds may remain on your Account for up to three days after the transaction, even after the transaction has been paid. In addition, even after a preauthorization hold is released, the transaction may be posted to your Account at any time. As a result, you must ensure that sufficient funds are available and remain in your Account to pay for your Freedom Check Card transactions. Preauthorization holds affect the availability of funds to pay for checks drawn on your Account and other withdrawal transactions. You acknowledge and agree that we are not liable for any damages you may incur for dishonor of items or other transactions because of a preauthorization hold placed on your Account funds. 6. Earn-a-Dime Every Time Program. The Earn-a-Dime Every Time Program pays an award of $0.10 cash back for each qualified purchase transaction completed with your Freedom Check Card. ATM withdrawals do not qualify for awards under this program. The cash back award is paid annually in early February. Payment will be made by direct deposit to your Checking or Savings Account in our sole discretion. We reserve the right to disqualify transactions not usual and customary and apparently structured or intended to abuse the program. Abuse of the program may result in loss of awards and Freedom Check Card privileges. Awards may be forfeited if you close your Checking or Savings Account before the awards are paid. We may add to, change, or delete any of the terms of this program or discontinue this program at any time in our sole and absolute discretion. DISCLOSURES 1. Transfer Types. The following electronic fund transfer services are available: Freedom Check Card Account Access - You may use your Freedom Check Card and PIN to:  Withdraw cash from your Savings and Checking Accounts.  Transfer funds between your Savings and Checking Accounts.  Check the balance in your Checking and Savings Accounts.  Pay for purchases at places that have agreed to accept the Card. Signature-based point-of-sale transactions do not require a PIN but may require positive identification. Some of these services may not be available at all terminals. Daily Limitations - You may withdraw up to $500 in the aggregate of your available balance per day at ATMs and up to $5,000 in the aggregate of your available balance per day for debit and point-of-sale transactions, for a 24 hour period that runs from midnight to midnight. HAL - Automated Account Access System Account Access - You may use your personalized passcode to:  Transfer funds between your Savings, Checking, and Money Market Accounts and to other Credit Union member accounts on which you are an owner.  Obtain your recent Account history and balance information for your Savings, Checking, and Money Market Accounts.  Make payments from your Savings or Checking Account to your loan accounts with us. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 19 of 31 M161AA R 04-28-15 15 NetBranch Online, ePay Bill Payment Service, RBFCU Mobile and eDeposit Account Access - You may use your NetBranch Account to:  Transfer funds between Credit Union Accounts.  Obtain your recent Account history and balance information for any account you are on.  Make payments on loans associated with your member Account number from your Checking, Savings and Money Market Accounts.  Make bill payments via ePay Services to approved merchants and other approved parties from your Checking Account.  Make deposits to your account, if qualified, via eDeposit. Your contractual arrangement for the NetBranch, ePay Service, RBFCU Mobile and eDeposit may provide for additional terms, conditions, disclosures, and limitations. Direct Deposit and Preauthorized Withdrawal Transfers You may make arrangements for certain direct deposits to be accepted into your Savings or Checking Accounts or to pay certain recurring bills from your Savings or Checking Accounts. Electronic Check Conversion If you pay for something by check and the merchant or other payee permits, you may authorize the merchant or payee to make a one-time electronic payment from your Checking Account using information from your check to pay for purchases or to pay bills. You may also authorize a merchant or payee to electronically debit your Checking Account for returned check fees. You are deemed to have authorized these transfers if you sign an authorization or if you engage in the transaction after receiving notice that the transfer will be treated as an electronic fund transfer. Note: When these items clear they may not appear in the section of the statement reserved for checks cleared, but may appear in the debit section of your statement. 2. Additional Transfer Limitations for Savings and Money Market Accounts. Under government regulations which apply to your Savings and Money Market Accounts, you may not make more than six transfers and withdrawals, or a combination of transfers and withdrawals from your Savings or Money Market Account per calendar month to another Credit Union Account of yours or to a third party by means of a pre-authorized or automatic transfer, or a telephonic agreement, order, or instruction (including transfers using the HAL or NetBranch Online services). Withdrawals by mail, messenger, ATM, or in person, and transfers to make payments on your loans with us are not included in this limitation. However, automatic or preauthorized transfers from your Accounts to make payments on other loan accounts with us are counted against this transaction limitation. 3. Fees. Please refer to our Fee Schedule for fees and charges that apply in connection with your use of our electronic fund transfers services. In addition, when you use an ATM not owned by us, you may be charged an additional fee by the ATM operator or ATM network used. The ATM operator or network may charge you a fee for a balance inquiry even if you do not complete a fund transfer. 4. Business Days. Our business days are Monday through Friday, excluding federal holidays. 5. Processing Days. Our processing days are daily (Sunday through Saturday). 6. Documentation. (a) Terminal Transfers. You can get a receipt at the time you make any transfer to or from your Account using an ATM or a point-of-sale terminal. (b) Periodic Statements. Refer to statement matrix. (c) Direct Deposits. If you have arranged to have direct deposits made to your Account at least once every 60 days from the same person or company, you can call us at 210-945-3300 (San Antonio), 512-833-3300 (Austin), 972-377-3303 (Dallas) or toll free 1-800-580-3300 to find out whether or not the deposit has been made. 7. Preauthorized Payments. (a) Right to Stop Payment of Preauthorized Transfers and Procedure for Doing So. If you have arranged in advance to make regular payments from your Account, you can stop any of these payments. Here’s how: Call us or write to us at the telephone number or address listed in these disclosures in time for us to receive your request three business days or more before the payment is scheduled to be made. If you call, we may also require you to put your request in writing and get it to us within 14 days after you call. We will charge a fee as set forth in our Fee Schedule for each stop payment order you give. Stop payments on EFT transactions are placed for an indefinite timeframe. (b) Notice of Varying Amounts. If these regular payments may vary in amount, the person or company you are going to pay will tell you, ten days before each payment, when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment or when the amount would fall outside certain limits that you set. (c) Liability for Failure to Stop Payment of Preauthorized Transfer. If you order us to stop one of these payments three business days or more before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages. 8. Contact in Event of Unauthorized Transfer. If you believe your Card or PIN has been lost or stolen or that someone has transferred or may transfer money from your Account without your permission, press 5 when you call: 210-945-3300 (San Antonio) 1-800-580-3300 (Toll Free) 9. Confidentiality. We will disclose information to third parties about your Account or transfers you make: (a) Where it is necessary for completing transfers, or (b) In order to verify the existence and condition of your Account for a third party, such as a credit bureau or merchant, or (c) In order to comply with government agency or court orders, or (d) If you give us your written permission. 10. Liability for Unauthorized Use. Tell us AT ONCE if you believe your Card or PIN has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your Account. (a) For All Transactions Conducted with Your Freedom Check Card, including PIN-based Transactions at the Point-of-Sale and ATM. If you believe your Card or PIN has been lost or stolen you must report this loss or theft within two business days of learning of the loss. You will not be liable once you notify us that your Card or PIN has been or may be used without your permission. This zero liability limitation does not apply unless (i) you have exercised reasonable care in safeguarding the card from risk of loss or theft, and (ii) you have, upon becoming aware of the loss or theft, promptly reported the loss or theft to us. If you do not meet these conditions and you are a consumer cardholder, you could be held liable for the charges. (b) If you notify us within 60 days of receiving the statement with the fraudulent activity, but failed to notify us within Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 20 of 31 M161AA R 04-28-15 16 the first two days of the loss of your card or PIN, you could lose as much as $500. (c) Also, if your statement shows transfers that you did not make, including those made by Card, PIN, or other means, notify us promptly. Your liability is unlimited if you do not tell us within 60 days after the statement was mailed to you. 11. Credit Union's Liability. If we do not complete a transfer to or from your Account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will NOT be liable, for instance:  If, through no fault of ours, you do not have enough money in your Account to make the transfer.  If the ATM or system was not working properly and you knew about the breakdown when you started the transfer.  If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.  If the funds in your Account are subject to an administrative hold, legal process, or other claim.  If the failure to properly complete the transaction is caused by erroneous information supplied by you or your agent.  If you have closed the Account from which you have preauthorized electronic fund transfers to occur.  There may be other exceptions stated in our agreements with you. 12. In Case of Errors or Questions about Your Electronic Transfers. Call or write us at the telephone number or address listed in these disclosures as soon as you can if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.  Tell us your name and Account number.  Describe the error or the transfer you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.  Tell us the dollar amount of the suspected error. If you tell us orally, we may require that you send us your complaint or question in writing within ten business days. We will determine whether an error occurred within ten business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will provisionally credit your Account within ten business days for the amount you think is in error, so that you will have use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten business days, we may not credit your Account. For errors involving new Accounts, point-of-sale, or foreign- initiated transactions, we may take up to 90 days to investigate your complaint or question. For new Accounts, we may take up to 20 business days to credit your Account for the amount you think is in error. We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation. 13. Freedom Check Card Currency Conversion. If you effect an international transaction with your Freedom Check Card, MasterCard International will convert the charge into a U.S. dollar amount. MasterCard International will use its currency conversion procedure, which is disclosed to institutions that issue MasterCard cards. Currently, the currency conversion rate used by MasterCard International to determine the transaction amount in U.S. dollars for such transactions is generally either a government-mandated exchange rate or a wholesale exchange rate selected by MasterCard International for the applicable currency on the day the transaction is processed, which rate may differ from the applicable rate on the date the transaction occurred or when the transaction is posted to your Account. 14. Illegal Transactions. You agree that you will not cause or allow your Card or PIN to be used in any manner or for any transaction that we believe poses an undue risk of illegality, and we may refuse to authorize any such use or transaction. If you use your Card or PIN for a transaction that is determined to be illegal, you will be liable for the transaction. You waive any right to take legal action against the Credit Union for your illegal use of your Card or PIN and agree to indemnify and hold harmless the Credit Union and MasterCard International, Inc. from and against any lawsuits, other legal action, or liability that results directly or indirectly from such illegal use. 15. ATM Safety Precautions. Exercise discretion when using an ATM or night deposit facility. Observe basic safety precautions. Prepare for any ATM transactions prior to approaching the ATM or night deposit facility. Never enter your PIN in any terminal that does not look genuine, has been modified, has a suspicious device attached, or is operating in a suspicious manner. Retain your receipts, and do not leave them at the ATM or night deposit facility. Do not lend your Card to anyone, and do not leave your Card or any other documents at the ATM or any night deposit facility. Keep your PIN secret and memorize it. Do not give anyone information regarding your Card or PIN over the telephone. When using an ATM, place your body in a position so that you will prevent others from observing your PIN when entered. At any ATM or night deposit facility, keep a lookout for any suspicious activity near the facility and assure yourself that the facility and all approaches to the facility are well lighted before using the facility. Conceal cash received from an ATM to the best of your ability and count it after you have left the ATM. If anyone offers assistance while you are operating an ATM, do not accept it. If you have begun a transaction, consider canceling the transaction and leaving the ATM location. Finally, compare your receipts against the statements you receive and notify us immediately if you suspect that an error or unauthorized transaction has occurred. 16. Cardholder Responsibility. It is the responsibility of the cardholder to update card information with any third party or bill payment service upon receiving a reissued or replacement card. The Credit Union does not update or provide card information to any third party or bill payment service that the cardholder may have previously authorized. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 21 of 31 M161AA R 04-28-15 17 Funds Availability Policy The following policy applies to all Randolph-Brooks FCU Checking Accounts. We may delay the availability of funds deposited into other Accounts for longer periods. Please ask a member services representative if you should have a question about the availability of funds deposited into any of your Accounts. YOUR ABILITY TO WITHDRAW FUNDS Our policy is to make funds from your deposits available to you on the day we receive your deposit. Electronic direct deposits also will be available on the day of deposit. Availability of electronic deposits originating from an international location may be delayed if such action is necessary to comply with the requirements from the Office of Foreign Assets Control (OFAC). Once your deposits are available, you can withdraw the funds in cash and we will use the funds to pay checks that you have written. For determining the availability of your deposits, every day is a business day, except Saturdays, Sundays, and federal holidays. If you make a deposit before closing on a business day that we are open, we will consider that day to be the day of your deposit. However, if you make a deposit after closing or on a day we are not open, we will consider that the deposit was made on the next business day we are open. Please remember that even after we have made funds available to you and you have withdrawn the funds, you are still responsible for checks you deposit that are returned to us unpaid and for any other problems involving your deposit. If you have any questions, be sure to ask us. Longer Delays May Apply In some cases, we will not make all of the funds that you deposit by check available to you on the day of your deposit. Depending on the type of check that you deposit, funds may not be available until the second business day after the day of your deposit. However, the first $200 of deposits to a checking account will be available (in most cases) on the day of your deposit. If we are not going to make all of the funds from your deposit available on the day of your deposit, we will notify you at the time you make your deposit. We will also tell you when the funds will be available. If your deposit is not made directly to one of our employees, or we decide to take this action after you have left the premises, we will mail you the notice by the day after we receive your deposit. If you will need the funds from a deposit right away, you should ask us when the funds will be available. In addition, funds you deposit by check may be delayed for a longer period under the following circumstances:  We believe a check you deposit will not be paid.  You deposit checks totaling more than $5,000 on any one day.  You redeposit a check that has been returned unpaid.  You have overdrawn your Account repeatedly in the last six months.  There is an emergency, such as failure of computer or communications equipment. We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. They will generally be available no later than the seventh business day after the day of your deposit. Holds on Other Funds If we cash a check for you or accept for deposit a check that is drawn on another bank, we may make funds from the deposit available for withdrawal immediately but delay your availability to withdraw a corresponding amount of funds that you have on deposit in any Account with us. Those funds will be available at the time funds from the check we cashed would have been available if you had deposited it. Special Rules for New Accounts If you are a new member, the following special rules will apply during the first 30 days of your membership. Funds from electronic direct deposits into your Account will be available on the day we receive the deposit. Funds from deposits of cash, wire transfers, and the first $5,000 of a day's total deposits of cashier's, certified, teller's, traveler's, and federal, state and local government checks will be available on the day of your deposit if the deposit meets certain conditions. For example, the checks must be payable to you (and you may have to use a special deposit slip). The excess over $5,000 will be available on the ninth business day after the day of your deposit. If your deposit of these checks (other than a U.S. Treasury Check) is not made in person to one of our employees, the first $5,000 will not be available until the second business day after the day of your deposit. Funds from all other check deposits will be available on the seventh business day after the day of your deposit. Substitute Checks and Your Rights Important Information about the Check 21 Act and Your Credit Union Share Accounts Substitute Checks and Your Rights What Is a Substitute Check? To make check processing faster, a federal law called the Check 21 Act permits financial institutions to replace original checks with substitute checks. These checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: "This is a legal copy of your check. You can use it the same way you would use the original check." You may use a substitute check as proof of payment just like the original check. Some or all of the checks that you receive back from us may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or to electronic debits to your Account. However, you have rights under other law with respect to those transactions. What Are Your Rights Regarding Substitute Checks? In certain cases, federal law provides a special procedure that allows you to request a refund for losses you suffer if a substitute check is posted to your Account (for example, if you think that we withdrew the wrong amount from your Account or that we withdrew money from your Account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your Account and fees that were charged as a result of the withdrawal (for example, bounced check fees). The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You also are entitled to interest on the amount of your refund if your Account is a dividend-bearing Account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law. If you use this procedure, you may receive up to $2,500 of your refund (plus interest if your Account earns dividends) within 10 business days after we received your claim and the remainder of your refund (plus interest if your Account earns dividends) not later than 45 calendar days after we received your claim. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 22 of 31 M161AA R 04-28-15 18 We may reverse the refund (including any interest on the refund) if we later are able to demonstrate that the substitute check was correctly posted to your Account. How Do I Make a Claim for a Refund? If you believe that you have suffered a loss relating to a substitute check that you received and that was posted to your Account, please contact us in writing at Randolph-Brooks Federal Credit Union, Attn: Member Services, P.O. Box 2097, Universal City, TX 78148-2097. You must contact us within 60 calendar days of the date that we mailed (or otherwise delivered by a means to which you agreed) the substitute check in question or the Account statement showing that the substitute check was posted to your Account, whichever is later. We will extend this time period if you were not able to make a timely claim because of extraordinary circumstances. Your claim must include:  A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect);  An estimate of the amount of your loss;  An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and  A copy of the substitute check or the following information to help us identify the substitute check: Check number, the name of the person to whom you wrote the check, and the amount of the check. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 23 of 31 M161AA R 04-28-15 19 Truth in Savings Account Disclosures The Truth-in-Savings Account Disclosures and Rate and Fee Schedules set forth certain conditions, rates, fees, and charges applicable to your Accounts at Randolph-Brooks Federal Credit Union and are incorporated into your Account Agreement with us. Definitions Annual Percentage Yield (APY). The Annual Percentage Yield is a percentage rate reflecting the total amount of dividends paid on an Account, based on the dividend rate and the frequency of compounding for a 365-day period. Dividend Rate. The dividend rate is the declared annual dividend rate paid on an Account, which does not reflect compounding. Rate Information For Non-Certificate Accounts, the dividend rate and APY may change each dividend period as determined by the Credit Union’s Board of Directors. The Non-Certificate Account dividend rates and APYs disclosed in the Rate Schedule reflect the dividend rates and APYs as of the last dividend declaration date. For Certificate Accounts, the dividend rates and APYs disclosed in the Rate Schedule were offered within the most recent seven calendar days and were accurate as of the today’s date. Rates are subject to change at any time. Please contact us at (800) 580-3300 to obtain current rate information. Nature of Dividends Except for Certificate Accounts, dividends are paid from current income and available earnings, after required transfers to reserves at the end of a dividend period. Fees and Charges Fees and charges that may be assessed against your Accounts are disclosed in the Fee Schedule. You authorize us to charge any Account in which you have an ownership interest for any such fees or charges assessed without notice to you. Compounding and Crediting Savings and Checking Accounts - Dividends are compounded and credited monthly. IRA Savings, Money Market, Certificate, and Traditional IRA and Roth IRA Certificate Accounts - Dividends are compounded and credited monthly. Effect of Closing If you close your Account before dividends are paid, you will receive the accrued dividends. Balance Computation Method For all Accounts, dividends are calculated by the daily balance method, which applies a daily periodic rate to the balance in the Account each day. For tiered-rate Accounts, we use the average daily balance method to determine the applicable tier and rate for your Account during the period. The average daily balance is calculated by adding the balance in the Account for each day of the period and dividing that figure by the number of days in the period. The dividend rate corresponding to the average daily balance of the Account for the period will be paid on the entire balance of your Account. Accrual of Dividends or Interest Dividends will begin to accrue on the business day you deposit non-cash items such as checks to your Account. Transaction Limitations The Credit Union reserves the right to require a member intending to make a withdrawal from any Account (except a Checking Account) to give written notice of such intent not fewer than seven days and up to 60 days before such withdrawal. We currently do not exercise this right and we have not exercised it in the past. The $1 membership share in your Savings Account may not be withdrawn unless your Credit Union membership is terminated. Note: A minimum balance of $1 must be maintained in the primary savings account during the entire time the account remains open. Business Checking - During any month, a maximum of 250 items may be processed through your Account. Items exceeding the maximum limit will incur a surcharge as set forth in the Fee Schedule. For check deposits, the deposit slip and each check are each counted as an item. For cash deposits, only the deposit slip is counted. Cash withdrawals and ATM transactions do not count as an item for purposes of the monthly limit. Only checks drawn by you that clear your Account are counted toward the monthly limit. Savings and Money Market Accounts - During any month, you may not make more than six withdrawals or transfers to another Credit Union account of yours or to a third party by means of a preauthorized transfer, an automatic transfer, or a telephonic order or instruction. Automatic transfers include audio response and home banking transfers to other Accounts of yours. Unlimited withdrawals and transfers may be completed from your Savings and Money Market Accounts each month at our branch locations, by mail, and through ATMs where permitted. Withdrawals or transfers that exceed the maximum number permitted may be declined. Traditional IRA and Roth IRA Savings and Certificate Accounts - Annual contributions to IRA and Roth IRA Accounts are limited to the maximum amount allowed by federal law. Early withdrawals from IRA and Roth IRA Accounts may be subject to additional taxes imposed by the Internal Revenue Service. Please consult a qualified tax professional for more information. Certificate Accounts - Additions or withdrawals to the principal may not be made during the term of a Certificate Account. Additions or withdrawals to principal may only be made at maturity or when the Certificate Account is closed. In addition, early withdrawal penalties may apply. Please refer to the Certificate Account disclosures below for more information. Features of Certificate Accounts Early Withdrawal Penalties - We will impose a penalty if you close your Certificate Account before maturity. No partial withdrawals of principal from Certificate Accounts are allowed before maturity. The penalty will be equal to the earnings on the amount withdrawn from the Certificate for the number days listed below, whether earned or not: 06-month certificates 30 days 12-month certificates 60 days 24-month certificates 120 days 36-month certificates 180 days 48-month certificates 240 days 60-month certificates 300 days 72-month certificates 360 days 84-month certificates 420 days In some cases, we may waive the early withdrawal penalty such as the death or incompetency of an Account Owner. The early withdrawal penalty does not apply if you are over age 70.5 and making a mandatory distribution from a Traditional IRA certificate". If your Certificate is part of an IRA plan, please consult a qualified tax professional concerning additional IRS penalties and tax consequences that may apply in connection with early closure of a Certificate Account. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 24 of 31 M161AA R 04-28-15 20 Dividends - At Account opening, you may choose to have Certificate Account dividends credited to your Savings, Checking, or Money Market Account or credited to your Certificate Account. Once you elect a dividend-payment option, it may not be changed until the Certificate matures. The Annual Percentage Yields disclosed for Certificate Accounts are based on an assumption that the dividends will be credited to and remain in the Certificate Account until maturity. A withdrawal will reduce earnings. Renewal Policy -Certificate Accounts will automatically renew at maturity. You will have a grace period of 10 calendar days after the maturity date to withdraw the funds in the Account or to change the Certificate without being charged an early withdrawal penalty. If your Certificate is pledged as loan collateral and, unless you make arrangements prior to maturity, the balance of your Certificate Account will be applied to your loan at maturity and any remaining amount will be deposited to your Savings Account. Account Restrictions Accounts are non-transferable and non-negotiable. Personal Accounts are limited to a maximum of five signers on the Account and Non-Personal Accounts are limited to a maximum of six signers on the Account. Funds in your Accounts may not be pledged to secure any obligation of yours, except for those obligations owed to Randolph-Brooks Federal Credit Union. Bylaw Requirements You must complete payment of a membership share in order to maintain accounts at the Credit Union. The par value of a regular share in the Randolph-Brooks Federal Credit Union is $1. A member who fails to complete payment of one share within one month of his admission to membership, or within one month from the increase in the par value of shares, or a member who reduces his share balance below the par value of one share and does not increase the balance to at least the par value of one share within one month of the reduction may be terminated from membership. Note: There is a $1 minimum balance requirement in your primary savings accounts to be maintained as long as the account remains open. National Credit Union Share Insurance Fund Member accounts in the Randolph-Brooks Federal Credit Union are federally insured by the National Credit Union Share Insurance Fund. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 25 of 31 M161AA R 04-28-15 21 Truth in Savings Rate Schedule The rates contained in the Rate Schedule are accurate as of today’s date. For current information call the Credit Union at 210-945-3300 (San Antonio), or 512-833-3300 (Austin) or Toll Free 1-800-580-3300. Account Dividend Rate1 Dividend Rate Annual Percentage Yield (APY)1 Minimum Balance Requirements Savings Account 0.00% 0.00% $1 to open2 Checking Account (Including Really Free Checking and Business Checking) 0.00% 0.00% None Money Market Account $2,500 to $24,999.99 $25,000 to $74,999.99 $75,000 to $149,999.99 $150,000 and greater 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% $2,500 to open and earn the APY3 Tiered-rate Account4 IRA Savings $5 to $24,999.99 $25,000 to $74,999.99 $75,000 to $149,999.99 $150,000 and greater 0.00% 0.00% $1 to open and earn the APY Tiered-rate Account4 Certificates and IRA Certificates (Including Traditional and Roth IRA Certificates) 26-week $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 12 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 24 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 36 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 48 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 60 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 72 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 84 months $1,000 to $4,999.99 $5,000 to $19,999.99 $20,000 to $74,999.99 $75,000 and greater 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% $1,000 to open and earn the APY Tiered-rate Account4 1 For all Accounts except Certificate Accounts, the rates above reflect the dividend rates and APYs as of the last dividend declaration date. For Certificate Accounts, the rates and APYs are accurate as of today. Rates are subject to change at any time. Please refer to the Truth in Savings Account Disclosures for more information. 2 Minimum balance required to open the Account. You must maintain the minimum opening balance at all times to keep the Account open and receive Credit Union services. 3 Minimum balance required to open the Account. You must maintain the minimum opening balance at all times to keep the Account open. If at any time your daily balance for the period falls below $2,500, we will automatically close the Account and transfer the remaining balance to your Savings Account. 4 You must maintain the disclosed minimum daily balance in your Account to obtain the Annual Percentage Yield. The dividend rate corresponding to the average daily balance of the Account for the period will be paid on the entire balance of the Account. Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 26 of 31 M161AA R 04-28-15 22 Truth in Savings Fee Schedule An important benefit of membership is most fees and charges are lower than other financial institutions. Compare us and you will find many Randolph-Brooks services are free! The following fees may be assessed in connection with your Accounts without advance notice to you. Membership Membership at Randolph-Brooks is FREE; just maintain the required minimum balance of $1 in your primary savings account. Savings Accounts Regular Savings.................................................FREE Money Market ...................................................FREE ($2,500 minimum daily balance) Checking Accounts Really Free Checking .........................................FREE ePay Bill Payment Service .................................FREE1 Standard Checks-Online ...................................FREE Business Accounts and Services Business Checking ............................................Varies2 Electronic Deposits ............................................FREE Online Check Images .........................................FREE3 Business Checks Standard Checks-Online ...............................FREE Other Styles ..................................................Varies Returned Business Deposit ................................$5 per item Deposit Bags .....................................................$2 each Coin/Currency Requests ....................................FREE Coin Machine Usage ..........................................FREE4 ACH Business Origination Services Security Token ...............................................$35 per user File/Submission Fee .......................................$10 Per Item Fee ..................................................$0.15 Merchant Credit Card Services ..........................Varies5 General Services Account Reconciliation Research .......................$15 per hour Calls to our Member Service Center ..................FREE Cashier’s Check .................................................$1 each Copies Checks ............................................................$1 per copy (in excess of two copies per month) Statement .......................................................$1.50 per copy Collection Items (sent or received) Domestic .........................................................$5 per item Foreign............................................................Varies6 Courtesy Pay .....................................................$24 per item7 Electronic Statement ..........................................FREE Fax Fee..............................................................$2.50 per item8 Garnishment or Levy ..........................................$25 per notice ID Protect Plus ...................................................$4.95 per month9 Inactive Account.................................................$5 per month10 Insufficient Funds Fee ........................................$24 per item Insufficient Funds Fee - UCF .............................$24 per item MasterCard® Gift Card .......................................$3 per card Money Orders ....................................................$1 each Net Branch Online Account Access .................................................FREE Notary Service ...................................................FREE Non-member Check Cashing Fee ......................$3 per item Overdraft Protection (auto transfer from savings or LOC) ...................FREE Reg D Excessive Transfer Fee ..........................$12 per item11 Returned Deposit ...............................................$24 per item Signature Guarantee ..........................................FREE Stop Payment ....................................................$24 each Wire Transfer Incoming .........................................................FREE Outgoing (Domestic) .......................................$10 Outgoing (International) ..................................$50 ATMs & Freedom Check Cards Signature-based Transactions........................FREE Withdrawals/Inquiries/Transfers at ATMs owned or affiliated with Randolph-Brooks12 ...............................FREE Co-Op ATM Transactions12 ............................FREE Foreign ATM Transactions (members) ...........$1 each ATM Surcharge (non-member) .......................$3 each Safe Deposit Boxes (annual cost) 2x5 (Live Oak Branch)....................................$15 3x5 .................................................................$20 3x10 ...............................................................$30 5x10 ...............................................................$50 10x10 .............................................................$75 15x10 (Windcrest Branch) ..............................$100 Locksmith Services ........................................$110 or more Please Note All fees are assessed at the time of service or deducted from your account. If the balance is insufficient, you will be notified to pay the required fee. We may charge any of your accounts for any fee due. Any fees or charges assessed to us for extra service or special handling of your account will be passed on to you. This Fee Schedule is subject to change at any time. Members will be notified as required by law of any changes in charges that may be imposed on an Account. 1 Optional expedited same-day bill payment service is available for a fee of $12 charged by CheckFree. 2 Electronic transactions are free. The first 250 checks written or deposited are free; then $0.20 per check. 3 Deposit images available only if using electronic deposits 4 Fees may be assessed for heavy/frequent usage 5 Quotes are provided by Newtek upon request 6 If we must send a check or draft for collection, any outside fees will be charged to your Account. 7 The Courtesy Pay fee is assessed for transactions that we choose to pay when no other form of overdraft protection is available. Due to regulatory requirements, a member must “opt in” to receive the services of Courtesy Pay. We pay all checks and debits on your checking account in order of arrival sequence throughout the day. 8 We do not fax items for non-members. If a member is faxing an item related to RBFCU business, the fax is free. 9 Identity Fraud Protection 10 Accounts are “inactive” when there is no activity initiated by you for 12 consecutive months and the account balance is below $50. 11 Reg D transfer limitation of six transactions per month was exceeded. Item was paid as an exception and a fee was assessed. 12 ATMs are located at all Randolph-Brooks locations, selected off-site locations, and other financial institutions through the CO-OP Network. Randolph-Brooks Federal Credit Union P.O. Box 2097 Universal City, TX 78148-2097 210-945-3300 (San Antonio) 512-833-3300 (Austin) 972-377-3303 (Dallas) Toll Free 1-800-580-3300 https://www.rbfcu.org/ Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 27 of 31 M161AA R 04-28-15 23 National Credit Union Share Insurance Fund (NCUSIF) This credit union is federally insured by the National Credit Union Administration. Examples: Family of Two Individual Accounts Husband Individual $250,000 Wife Individual $250,000 Joint Accounts Husband/Wife Joint $500,000 Testamentary/Revocable Trusts/Payable On Death Husband POD/Wife $250,000 Wife POD/Husband $250,000 IRA Accounts Husband $250,000 Wife $250,000 Total $2,000,000 Family of Four Individual Accounts Husband Individual $250,000 Wife Individual $250,000 Child #1 Individual $250,000 Child #2 Individual $250,000 Joint Accounts Husband/Wife Joint $500,000 Child #1/Child #2 Joint $500,000 Testamentary/Revocable Trusts/Payable On Death Husband POD/Child #1 $250,000 Husband POD/Child #2 $250,000 Wife POD/Child #1 $250,000 Wife POD/Child #2 $250,000 Husband POD/Wife $250,000 Wife POD/Husband $250,000 IRA Accounts Husband $250,000 Wife $250,000 Total $4,000,000 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 28 of 31 Rev 07/14 FACTS WHAT DOES RANDOLPH-BROOKS FEDERAL CREDIT UNION (RBFCU) DO WITH YOUR PERSONAL INFORMATION? Why? Financial companies choose how they share your personal information. Federal law gives consumers the right to limit some, but not all, sharing. Federal law also requires us to tell you how we collect, share and protect your personal information. Please read this notice carefully to understand what we do. What? The types of personal information we collect and share depend on the products or services you have with us. This information can include:  Social Security number and income  Account balances and payment history  Credit history and credit scores How? All financial companies need to share members’ personal information to run their everyday business. In the section below, we list the reasons financial companies can share their members’ personal information; the reasons RBFCU chooses to share; and whether you can limit this sharing. To limit our sharing  Call 512-833-3300 (Austin), 210-945-3300 (San Antonio) or 1-800-580-3300 (Toll-free) and speak to a Member Service Representative.  Visit a branch location and speak to a Member Service Representative. Please note: If you are a new member, we can begin sharing your information 30 days from the date we sent this notice. When you are no longer our member, we continue to share your information as described in this notice. However, you can contact us at any time to limit our sharing. * Members cannot opt-out of receiving letters or other credit union communications that carry regulatory notices. Questions? Call 512-833-3300 (Austin), 210-945-3300 (San Antonio), 1-800-580-3300 (Toll-free) or visit a branch location and speak to a Member Service Representative. Reasons we can share your personal information Does RBFCU share? Can you limit this sharing? For our everyday business purposes - such as to process your transactions, maintain your account(s), respond to court orders and legal investigations, or report to credit bureaus Yes No For our marketing purposes - to offer our products and services to you Yes Yes* For joint marketing with other financial companies Yes Yes For our affiliates’ everyday business purposes - information about your transactions and experiences Yes No For our affiliates’ everyday business purposes - information about your creditworthiness Yes Yes For our affiliates to market to you Yes Yes For nonaffiliates to market to you No We don’t share Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 29 of 31 Page 2 Who we are Who is providing this notice? RBFCU; RB Premier Services LLC; RB Premier Realty LLC; RB Appraisal LLC; RB Assets LLC; RB Financial LLC; Randolph Brooks Insurance Agency, LLC; RB Mortgage LLC; and RB Title LLC. Definitions Affiliates Companies related by common ownership or control. They can be financial and nonfinancial companies.  Affiliates include RBFCU; RB Premier Services LLC; RB Premier Realty LLC; RB Appraisal LLC; RB Assets LLC; RB Financial LLC; Randolph Brooks Insurance Agency, LLC; RB Mortgage LLC; RB Title LLC. We may also enter into agreements in the future with other companies that offer additional financial products for you to consider. Nonaffiliates Companies not related by common ownership or control. They can be financial and nonfinancial companies.  Nonaffiliates we share with can include companies for credit cards, direct marketing, data processing, online services for bill payment, account setup, deposit and mobile services and identity protection. We may also enter into agreements in the future with other companies that offer additional financial products and services for you to consider. Joint marketing A formal agreement between nonaffiliated financial companies that together market financial products or services to you.  Our joint marketing partners include direct marketing companies, credit card companies and other financial institutions. What we do How does RBFCU protect my personal information? To protect your personal information from unauthorized access and use, we use security measures that comply with federal law. These measures include computer safeguards and secured files and buildings. Employees are trained on the importance of maintaining confidentiality and member privacy, and restricting access to nonpublic personal information. How does RBFCU collect my personal information? We collect your personal information, for example, when you:  Open an account or deposit money  Pay your bills or apply for a loan  Use your debit or credit card We also collect your personal information from others, such as credit bureaus, affiliates and other companies. Why can’t I limit all sharing? Federal law gives you the right to limit:  Sharing for affiliates’ everyday business purposes - information about your creditworthiness  Affiliates from using your information to market to you  Sharing for nonaffiliates to market to you State laws and individual companies may give you additional rights to limit sharing. What happens when I limit sharing for an account I hold jointly with someone else? Your choices will apply to everyone on your account. 92167-PRIVN-061914 240M CV Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 30 of 31 M161AA R 04-28-15 26 Your Affiliate Marketing Choices For personal information (such as your name, address or certain account-related information) shared among affiliates, you may opt out of direct marketing of products and services by those affiliates with whom you do not have a prior relationship. You may do this by mail or by calling the toll-free number of the appropriate RBFCU company provided. An opt-out by a joint account holder will be treated as applying to all associated joint account holders. Your choice to limit marketing offers from our affiliates will apply until you notify us to modify your preference. Note: If you have already requested this, there is no need to do so again. Contact Randolph-Brooks Federal Credit Union If you have questions or if you need to correct information we have on file, please contact us at: Randolph-Brooks Federal Credit Union PO Box 2097 Universal City, TX 78148-2097 Toll-free: 1-800-580-3300 San Antonio: 210-945-3300 Austin: 512-833-3300 Case 2:17-cv-00061-APG-VCF Document 11-1 Filed 04/18/17 Page 31 of 31 Exhibit B Exhibit B Case 2:17-cv-00061-APG-VCF Document 11-2 Filed 04/18/17 Page 1 of 15 FIRST AMENDED COMPLAINT Danny J. Horen, Esq. NV Bar No. 13153 Kazerouni Law Group, APC 7854 W. Sahara Avenue Las Vegas, NV 89117 Telephone: (800) 400-6808x7 Facsimile: (800) 520-5523 danny@kazlg.com David H. Krieger, Esq. NV Bar No. 9086 HAINES & KRIEGER, LLC 8985 S. Eastern Avenue, Suite 130 Henderson, Nevada 89123 Phone: (702) 880-5554 FAX: (702) 385-5518 dkrieger@hainesandkrieger.com Attorneys for Plaintiff Saleh Elghasen UNITED STATES DISTRICT COURT DISTRICT OF NEVADA /// /// SALEH ELGHASEN, Plaintiff, v. RBS COMPUTER, INC., d/b/a ROYAL MANAGEMENT CORPORATION; and EXPERIAN INFORMATION SOLUTIONS, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:14-cv-01539-JAD-GWF FIRST AMENDED COMPLAINT FOR DAMAGES PURSUANT TO THE FAIR CREDIT REPORTING ACT, 15 U.S.C. § 1681, ET SEQ. JURY TRIAL DEMANDED Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 1 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 2 of 15 FIRST AMENDED COMPLAINT INTRODUCTION 1. The United States Congress has found the banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence, which is essential to the continued functioning of the banking system. Congress enacted the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), to insure fair and accurate reporting, promote efficiency in the banking system, and protect consumer privacy. The FCRA seeks to ensure consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy because consumer reporting agencies have assumed such a vital role in assembling and evaluating consumer credit and other information on consumers. The FCRA also imposes duties on the sources that provide credit information to credit reporting agencies, called “furnishers.” 2. SALEH ELGHASEN (“Plaintiff”), by Plaintiff’s attorneys, brings this action to challenge the actions of RBS COMPUTER, INC. d/b/a ROYAL MANAGEMENT CORPORATION (“Royal”) and EXPERIAN INFORMATION SOLUTIONS, INC. (“Experian”) (or jointly as “Defendants”) with regard to erroneous reports of derogatory and negative credit information made by Defendant Royal to Experian, and for failure of Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 2 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 3 of 15 FIRST AMENDED COMPLAINT Defendants to properly investigate the disputed information, and this conduct caused Plaintiff damages. 3. Plaintiff makes these allegations on information and belief, with the exception of those allegations that pertain to Plaintiff, or to Plaintiff’s counsel, which Plaintiff alleges on personal knowledge. 4. While many violations are described below with specificity, this Complaint alleges violations of the statute cited in its entirety. 5. Unless otherwise stated, all the conduct engaged in by Defendants took place in Nevada. 6. Any of Defendants’ violations were knowing, willful, and intentional, and Defendant did not maintain procedures reasonably adapted to avoid any such violation. 7. Unless otherwise indicated, the use of Defendants’ names in this Complaint includes all agents, employees, officers, members, directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, representatives, and insurers of Defendants’ named. JURISDICTION AND VENUE 8. This Court has federal question jurisdiction because this case arises out of violation of federal law. 15 U.S.C. §1681 et seq.; 28 U.S.C. §1331; Smith v. Community Lending, Inc., 773 F.Supp.2d 941, 946 (D. Nev. 2011). Jurisdiction arises for any of Plaintiff’s supplemental state claims under 28 Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 3 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 4 of 15 FIRST AMENDED COMPLAINT U.S.C. § 1367. 9. This action arises out of Defendant’s violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681(x) (“FCRA”). 10. Venue is proper in the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 1391(b) because Plaintiff is a resident of Clark County, the State of Nevada. Defendant Royal is subject to personal jurisdiction in the County of Clark, State of Nevada as they conduct business there by reporting to major credit bureaus information about consumers such as Plaintiff, who is a Nevada resident. Therefore, the conduct giving rise to this action occurred in Nevada. 28 U.S.C. § 1391(b)(2). Further, Defendant Experian has a registered agent of service in Nevada and is listed with the Nevada Secretary of State as a foreign corporation doing business in Nevada. PARTIES 11. Plaintiff is a natural person residing in the County of Clark, State of Nevada. In addition, Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § 1681a(c). Defendants are corporations doing business in the State of Nevada. 12. Defendant Royal is a furnisher of information as contemplated by 15 U.S.C. § 1681s-2(b) that regularly and in the ordinary course of business furnishes information to a consumer credit reporting agency. Defendant Royal reports Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 4 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 5 of 15 FIRST AMENDED COMPLAINT to credit bureaus under the fictitious name of “Royal Management Corporation.” 13. Defendant Experian is a national credit reporting agency, doing business in Nevada, with a principal place of business in Ohio. FACTUAL ALLEGATIONS 14. At all times relevant, Plaintiff was an individual residing within the State of Nevada. 15. At all times relevant, Defendant Royal conducted business in the State of Nevada by reporting to major credit bureaus information about consumers such as Plaintiff, who is a Nevada resident. Defendant Experian reported credit information regarding Plaintiff, a Nevada resident. Therefore, the conduct giving rise to this action (Defendants’ erroneous credit reporting) occurred in Nevada. 16. Sometime on or about April 2008, Plaintiff allegedly incurred certain financial obligations, in the form of a personal loan (the “Loan”) from Family Finance. 17. On or about May 17, 2010, Plaintiff filed for Bankruptcy in the United States Bankruptcy Court for the District of Nevada. Plaintiff’s case was assigned Case Number 10-19019 (the “Bankruptcy”). 18. The Loan was scheduled in the Bankruptcy and the Creditor received notice of the Bankruptcy. Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 5 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 6 of 15 FIRST AMENDED COMPLAINT 19. Defendant Royal subsequently purchased, acquired, or otherwise obtained the Loan. 20. On or about June 7, 2010, a proof of claim [Claim #5] was filed on behalf of Family Finance in Plaintiff’s Bankruptcy. In filing the proof of claim, it was requested all notices be sent to Defendant Royal’s address in San Antonio, Texas. 21. Thus, Defendant was clearly on notice of Plaintiff’s Bankruptcy. 22. On or about April 18, 2014, Plaintiff received a Bankruptcy discharge. 23. Defendant Royal did not file any proceedings to declare the Loan “non dischargeable” pursuant to 11 U.S.C. § 523 et seq. 24. Defendant Royal also did not request relief from the “automatic stay” codified at 11 U.S.C. §362 et seq while the Plaintiff’s Bankruptcy was pending. 25. Accordingly, the Loan was discharged through the Bankruptcy. 26. Further, while the automatic stay was in effect during the Bankruptcy, it was illegal for the Defendant Royal to report any post-Bankruptcy derogatory collection information. 27. Defendant Royal’s attempt to collect upon the account by reporting post- Bankruptcy derogatory information was therefore false or inaccurate and prohibited by the automatic stay or Discharge. Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 6 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 7 of 15 FIRST AMENDED COMPLAINT 28. Plaintiff subsequently learned that Defendant reported post-Bankruptcy derogatory credit information regarding the Loan on Plaintiff’s credit reports, thereby causing erroneous and negative credit information in Plaintiff’s credit files. The Experian Misreported Credit Information 29. In an Experian credit report dated August 5, 2014, Defendants reported the following account balances from November 2013 through May 2014 about the discharged debt (the “Disputed Information”): • Nov13: $1,481 • Dec13: $1,481 • Jan14: $1,481 • Feb14: $1,463 • Mar14: $1,463 • Apr14: $1,463 • May14: $1,463 30. Defendants should have reported a “$0” balance due to the Bankruptcy. At a minimum, the May 2014 account balance should reflect a balance of “$0” resulting from Plaintiff’s April 18, 2014 Discharge. 31. On or about August 28, 2014, Plaintiff disputed Defendants’ reported information regarding the Loan pursuant to 15 U.S.C. § 1681I(a)(2) by Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 7 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 8 of 15 FIRST AMENDED COMPLAINT notifying Defendant Experian, in writing, of the incorrect and inaccurate credit information furnished by Defendant Royal. 32. Specifically, Plaintiff sent a letter, certified, return receipt, to Experian (the “Experian Dispute Letter”), requesting the above inaccurate and incorrect derogatory information be removed as follows: • This account was discharged in my chapter 13 Bankruptcy which was filed on 5/17/2010 and discharged 4/18/2014, bearing docket No. 10- 19019 in the District for Nevada. The balance on this account should “$0” and the status should be reporting as “current”. Specifically, you show Account balances from Nov13 - May14 33. The Dispute Letter further requested that Experian: • Immediately delete this account and the disputed derogatory information my [Plaintiff’s] credit report. • The discharged debt should be reported with an account balance of $0 with a status of “current”. • Further, there should be no post-bankruptcy activity reported on this account. The date of last activity on this account should pre- date my bankruptcy filing date, 5/17/2010, since a default on this account occurred no later than the Bankruptcy filing date. • Any post-bankruptcy derogatory information should be immediately deleted from my report. • If you do not immediately delete this from my credit report, please include a 100-word statement in my credit report of all of the disputed information contained in this letter regarding this account. 34. On or about September 9, 2014, Plaintiff received notification from Experian that Defendant Royal received notice of Plaintiff’s dispute Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 8 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 9 of 15 FIRST AMENDED COMPLAINT pursuant to 15 U.SC. § 1681i(a)(6), and verified the account as being “updated”. 35. Surprisingly, not only did Defendants fail to remove the previously reported derogatory information, Defendants also added new derogatory information during its reinvestigation. Specifically, Defendants reported the Loan was “Charged Off” from November 2013 and March 2014 causing further credit damage to Plaintiff. 36. Plaintiff believes, and therefore alleges, that Defendants, upon receipt of Plaintiff’s dispute, failed to conduct an investigation with respect to the disputed information as required by 15 U.SC. § 1681s-2(b)(1)(A). 37. Plaintiff believes, and therefore alleges, that Defendants failed to review all relevant information provided by Plaintiff in the dispute to Experian, as required by and in violation of 15 U.SC. § 1681s-2(b)(1)(B). 38. Due to Defendants’ failure to investigate, Defendant further failed to correct and update Plaintiff’s information as required by 15 U.S.C. § 1681s- 2(b)(1)(E), thereby causing Defendants to report inaccurate information to the pertinent credit reporting agencies in violation of 15 U.S.C. § 1681- s(2)(b)(1)(C). 39. Plaintiff’s continued efforts to correct Defendant’s erroneous and negative reporting of the Loan by communicating the dispute with Defendants was fruitless. Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 9 of 12Case 2:17-cv-00 61-APG-VCF Document 11-2 Filed 04/18/17 Page 10 of 15 FIRST AMENDED COMPLAINT 40. Defendants’ continued inaccurate and negative reporting of the Loan in light of its knowledge of the actual error was willful. 41. Defendants’ inaccurate and negative reporting damaged Plaintiff’s creditworthiness. 42. By inaccurately reporting account information relating to the Loan after notice and confirmation of its errors, Defendants failed to take the appropriate measures as determined in 15 U.S.C. §§ 1681-s(2)(b)(1)(D) and (E). FIRST CAUSE OF ACTION VIOLATION OF THE FAIR CREDIT REPORTING ACT 15 U.S.C. § 1681 ET SEQ. (FCRA) 43. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 44. The foregoing acts and omissions constitute numerous and multiple willful, reckless or negligent violations of the FCRA, including but not limited to each and every one of the above-cited provisions of the FCRA, 15 U.S.C § 1681. 45. As a result of each and every willful violation of the FCRA, Plaintiff is entitled to actual damages as the Court may allow pursuant to 15 U.S.C. § 1681n(a)(1); statutory damages pursuant to 15 U.S.C. § 1681n(a)(1); punitive damages as the Court may allow pursuant to 15 U.S.C. § Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 10 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 11 of 15 FIRST AMENDED COMPLAINT 1681n(a)(2); and reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1681n(a)(3) from Defendants. 46. As a result of each and every negligent noncompliance of the FCRA, Plaintiff is entitled to actual damages as the Court may allow pursuant to 15 U.S.C. § 1681o(a)(1); and reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1681o(a)(2) from Defendants. PRAYER FOR RELIEF Plaintiff respectfully requests the Court grant Plaintiff the following relief against Defendants: FIRST CAUSE OF ACTION VIOLATION OF THE FAIR CREDIT REPORTING ACT 15 U.S.C. § 1681 ET SEQ. (FCRA) • an award of actual damages pursuant to 15 U.S.C. § 1681n(a)(1); • award of statutory damages pursuant to 15 U.S.C. § 1681n(a)(1); • an award of punitive damages as the Court may allow pursuant to 15 U.S.C. § 1681n(a)(2); • award of costs of litigation and reasonable attorney’s fees, pursuant to 15 U.S.C. § 1681n(a)(3), and 15 U.S.C. § 1681(o)(a)(1) against Defendants for each incident of negligent noncompliance of the FCRA; and • any other relief the Court may deem just and proper. /// /// Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 11 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 2 of 15 FIRST AMENDED COMPLAINT TRIAL BY JURY 47. Pursuant to the seventh amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. Dated: December 5, 2014 Respectfully submitted, BY: /S/ DANNY J. HOREN__________ DANNY J. HOREN, ESQ. NV BAR NO. 13153 KAZEROUNI LAW GROUP, APC ATTORNEYS FOR PLAINTIFF Case 2:14-cv-01539-JAD-GWF Document 8 Filed 12/05/14 Page 12 of 12Case 2:17-cv-0 061-APG-VCF Document 11-2 Filed 04/18/17 Page 13 of 15 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Civil Action No. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 2:14-cv-01539-JAD-GWF Document 8-1 Filed 12/05/14 Page 1 of 2 SALEH ELGHASEN RBS COMPUTER, INC., d/b/a ROYAL MANAGEMENT CORPORATION; and EXPERIAN INFORMATION SOLUTIONS, INC. EXPERIAN INFORMATION SOLUTIONS, INC. C/O The Corporation Trust Company of Nevada 311 S. Division Street Carson City, NV 89703 Danny J. Horen, Esq. David H. Krieger, Esq. Kazerouni Law Group, APC HAINES & KRIEFER, LLC 7854 W. Sahara Avenue 8985 S. Eastern Avenue, Suite 130 Las Vegas, NV 89117 Henderson, Nevada 89123 Case 2:17-cv-00061-APG-VCF Document 11-2 Filed 04/18/17 Page 14 of 15 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Case 2:14-cv-01539-JAD-GWF Document 8-1 Filed 12/05/14 Page 2 of 2 EXPERIAN INFORMATION SOLUTIONS, INC. 0 Case 2:17-cv-00061-APG-VCF Document 11-2 Filed 04/18/17 Page 15 of 15