Francisco Calleja-Ahedo v. Compass Bank
Opinion
ACCEPTED 01-15-00210-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/23/2015 3:29:52 PM CHRISTOPHER PRINE CLERK
Case No. 01-15-00210-CV
FILED IN 1st COURT OF APPEALS IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 10/23/2015 3:29:52 PM CHRISTOPHER A. PRINE Clerk Francisco Calleja-Ahedo, Appellant
v.
Compass Bank, Appellee
From Cause No. 2014-22168 55th Judicial District Court, Harris County, Texas
Appellee’s Brief
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael D. Conner Michael D. Conner State Bar No. 04688650 mconner@hirschwest.com William P. Huttenbach State Bar No. 24002330 phuttenbach@hirschwest.com 1415 Louisiana, 36th Floor Houston, Texas 77002 Telephone: (713) 220-9162 Facsimile: (713) 223-9319
Attorneys for Appellee, Compass Bank
Appellant requested oral argument. Appellee also request to be heard.
930505.20140273/2253328.1 TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
Statement of the Case.................................................................................................1
Appellant’s Issues [Restated].....................................................................................2
Statement of Facts ......................................................................................................2
Standard of Review ....................................................................................................7
Summary Judgment ................................................................................................7 A. Generally .......................................................................................................7 B. Traditional Summary Judgment ....................................................................7 C. Evidentiary Rulings .......................................................................................8 D. Contract Interpretation ..................................................................................8 E. Harmless Error ............................................................................................10
Summary of Argument ............................................................................................10
Argument and Authorities........................................................................................13
I. Appellant’s Failure to Inquire for 18 Months Is Negligent as a Matter of Law ...............................................................................13
II. The Deposit Contract and Section 4.406.............................................22
The February 2012 Deposit Agreement Governs the Account. ..........24
Compass Bank made statements available in accordance with the contract. ...............................................................................................27
III. As Prevailing Party Compass Bank is Entitled to Recover Attorneys’ Fees....................................................................................32
IV. Appellant Failed to Conclusively Establish Entitlement to Summary Judgment .............................................................................36
i Conclusion ...............................................................................................................38
Prayer .......................................................................................................................40
Certificate of Compliance ........................................................................................41
Certificate of Service ...............................................................................................41
Appendix ..................................................................................................................42
ii TABLE OF AUTHORITIES Cases Aetna Life & Casualty Co. v. Hampton State Bank 497 S.W.2d 80 (Tex. Civ. App.—Dallas 1973, no pet.) ......................................20
Am. Airlines Employees Fed. Credit Union v. Martin, 29 S.W.3d 86 (Tex. 2000).............................................................................. 31, 33
Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) ..................................................................................8
Bank of Tex. v. VR Elec., Inc., 276 S.W.3d (Tex. App.—Houston [1st Dist.] 2008, pet. denied) ..... 16, 19, 20, 22
Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834 (Tex. 1968) ......................................................................... 10, 14
Berry v. Encore Bank 2015 WL 3485970 (Tex. App.—Houston [1st Dist.] June 2, 2015, no. pet. h.)..............................7, 38
Canfield v. Bank One, Tex., N.A., 51 S.W.3d 828 (Tex. App.—Texarkana 2001, pet. denied) .................................21
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002).....................................................................................8
Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) ..................................................................................8
City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ................................................................................35
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ..................................................................................8
iii Coleman v. Bhd. State Bank, 3 Kan. App. 2d 162, 592 P.2d 103 (1979) ............................................................15
Compton, Ault & Co. v. Marshall, 88 Tex. 50, 29 S.W. 1059 (Tex. 1895) .................................................................21
Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ................. 21, 22
Derr Constr. Co. v. City of Houston, 846 S.W.2d 854 (Tex. App.—Houston [14th Dist.] 1992, no writ) .......................9
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..................................................................................8
E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) .................35
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) ........................................................................ 35, 36
El Paso Field Services, L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802 (Tex. 2012) ............................................................................9, 31
Fullick v. City of Baytown, 820 S.W.2d 943 (Tex. App.—Houston [1st Dist.] 1991, no writ) .......................27
Gramen Farm, LLC v. Huyen Nguyen, 01-13-00569-CV, 2014 WL 4374120 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, no pet.) ......................................31
HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) ................................................................................14
Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ..........................8
iv Howard v. Faberge, Inc., 679 S.W.2d 644 (Tex.
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ACCEPTED 01-15-00210-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/23/2015 3:29:52 PM CHRISTOPHER PRINE CLERK
Case No. 01-15-00210-CV
FILED IN 1st COURT OF APPEALS IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 10/23/2015 3:29:52 PM CHRISTOPHER A. PRINE Clerk Francisco Calleja-Ahedo, Appellant
v.
Compass Bank, Appellee
From Cause No. 2014-22168 55th Judicial District Court, Harris County, Texas
Appellee’s Brief
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael D. Conner Michael D. Conner State Bar No. 04688650 mconner@hirschwest.com William P. Huttenbach State Bar No. 24002330 phuttenbach@hirschwest.com 1415 Louisiana, 36th Floor Houston, Texas 77002 Telephone: (713) 220-9162 Facsimile: (713) 223-9319
Attorneys for Appellee, Compass Bank
Appellant requested oral argument. Appellee also request to be heard.
930505.20140273/2253328.1 TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
Statement of the Case.................................................................................................1
Appellant’s Issues [Restated].....................................................................................2
Statement of Facts ......................................................................................................2
Standard of Review ....................................................................................................7
Summary Judgment ................................................................................................7 A. Generally .......................................................................................................7 B. Traditional Summary Judgment ....................................................................7 C. Evidentiary Rulings .......................................................................................8 D. Contract Interpretation ..................................................................................8 E. Harmless Error ............................................................................................10
Summary of Argument ............................................................................................10
Argument and Authorities........................................................................................13
I. Appellant’s Failure to Inquire for 18 Months Is Negligent as a Matter of Law ...............................................................................13
II. The Deposit Contract and Section 4.406.............................................22
The February 2012 Deposit Agreement Governs the Account. ..........24
Compass Bank made statements available in accordance with the contract. ...............................................................................................27
III. As Prevailing Party Compass Bank is Entitled to Recover Attorneys’ Fees....................................................................................32
IV. Appellant Failed to Conclusively Establish Entitlement to Summary Judgment .............................................................................36
i Conclusion ...............................................................................................................38
Prayer .......................................................................................................................40
Certificate of Compliance ........................................................................................41
Certificate of Service ...............................................................................................41
Appendix ..................................................................................................................42
ii TABLE OF AUTHORITIES Cases Aetna Life & Casualty Co. v. Hampton State Bank 497 S.W.2d 80 (Tex. Civ. App.—Dallas 1973, no pet.) ......................................20
Am. Airlines Employees Fed. Credit Union v. Martin, 29 S.W.3d 86 (Tex. 2000).............................................................................. 31, 33
Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) ..................................................................................8
Bank of Tex. v. VR Elec., Inc., 276 S.W.3d (Tex. App.—Houston [1st Dist.] 2008, pet. denied) ..... 16, 19, 20, 22
Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834 (Tex. 1968) ......................................................................... 10, 14
Berry v. Encore Bank 2015 WL 3485970 (Tex. App.—Houston [1st Dist.] June 2, 2015, no. pet. h.)..............................7, 38
Canfield v. Bank One, Tex., N.A., 51 S.W.3d 828 (Tex. App.—Texarkana 2001, pet. denied) .................................21
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002).....................................................................................8
Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) ..................................................................................8
City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) ................................................................................35
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ..................................................................................8
iii Coleman v. Bhd. State Bank, 3 Kan. App. 2d 162, 592 P.2d 103 (1979) ............................................................15
Compton, Ault & Co. v. Marshall, 88 Tex. 50, 29 S.W. 1059 (Tex. 1895) .................................................................21
Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ................. 21, 22
Derr Constr. Co. v. City of Houston, 846 S.W.2d 854 (Tex. App.—Houston [14th Dist.] 1992, no writ) .......................9
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..................................................................................8
E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) .................35
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) ........................................................................ 35, 36
El Paso Field Services, L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802 (Tex. 2012) ............................................................................9, 31
Fullick v. City of Baytown, 820 S.W.2d 943 (Tex. App.—Houston [1st Dist.] 1991, no writ) .......................27
Gramen Farm, LLC v. Huyen Nguyen, 01-13-00569-CV, 2014 WL 4374120 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, no pet.) ......................................31
HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) ................................................................................14
Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ..........................8
iv Howard v. Faberge, Inc., 679 S.W.2d 644 (Tex. App.—Houston [1st Dist.] 1984, writ refused n.r.e.) ......10
Italian Cowboy Partners v. Prudential Ins. Co., 341 S.W.3d 323 (Tex. 2011) ..................................................................... 9, 10, 31
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ................................................................................31
Kennamer v. Estate of Noblitt, 332 S.W.3d 559 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ...............7, 8
Khalilnia v. Fed. Home Loan Mortg. Corp., 01-12-00573-CV, 2013 WL 1183311 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, pet. denied)..............................27
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000).....................................................................................8
Leax v. Leax, 305 S.W.3d 22 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .....................8
Long v. Griffin 442 S.W.3d 253 (Tex. 2014) ......................................................................... 35, 36
Lyle v. Jane Guinn Revocable Trust, 365 S.W.3d 341 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) .................10
McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) ................................................................................10
Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618 (Tex. 2007) ..................................................................................7
Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 365-66 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ..........26
v Myrick v. Nat'l Sav. & Trust Co., 268 A.2d 526 (D.C. 1970) ....................................................................................15
RGS, Cardox Recovery, Inc. v. Dorchester Enhanced Recovery Co., 700 S.W.2d 635, 638 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.) ...........9
Rogers v. Rogers, 01-90-00852-CV, 1991 WL 179620 (Tex. App.—Houston [1st Dist.] Sept. 12, 1991, writ denied)...............................9
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) ................................................................................14
Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342 (Tex. 2006) ................................................................................31
Sonerra Resources Corp. v. Helmerich & Payne Int’l Drilling Co., 01-11-00459-CV, 2012 WL 3776428 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet. h.) ...........................9, 10
Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1990) ................................................................................31
Stucki v. Noble, 963 S.W.2d 776 (Tex. App.—San Antonio 1998, pet. denied)............................26
Terry v. Puget Sound Nat. Bank, 80 Wash. 2d 157, 492 P.2d 534 (1972) ................................................................15
Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643 (Tex. 2004) ............................................................................7, 38
Union Planters Bank, Nat. Ass'n v. Rogers, 912 So. 2d 116 (Miss. 2005) .................................................................................15
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ..................................................................................8
vi Vega v. Compass Bank, 04-13-00383-CV, 2014 WL 953466 (Tex. App.—San Antonio Mar. 12, 2014, no pet.) ...............................................35
Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) ................................................................................14
Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001)...................................................................................14
Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538 (Tex. App.—Houston [1st Dist.] 1990, no writ) .......................26
Westport Bank & Trust Co. v. Lodge, 164 Conn. 604, 325 A.2d 222 (1973) ...................................................................15
Whitney Nat. Bank v. Baker, 122 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ........................31
Statutes Tex. Bus. & Com. Code § 1.201(b)(20) ..................................................................21
Tex. Bus. & Com. Code § 3.406 (a) ................................................................ passim
Tex. Bus. & Com. Code 4.103(a) ..................................................................... 23, 28
Tex. Bus. & Com. Code 4.406 ......................................................................... passim
Tex. Bus. & Com. Code §§ 3.101–605 ....................................................................22
Tex. Civ. Prac. & Code § 37.009 .............................................................................36
Tex. Civ. Prac. & Code § 38.001 .............................................................................36
vii Tex. Fin. Code Ann. § 34.302 (a) ..................................................................... 24, 25
Tex. Fin. Code § 34.301 (a) ........................................................................ 14, 29, 31
Rules Tex. R. App. P. 44.1.................................................................................................10
Tex. R. App. P. 9.4(e) ..............................................................................................41
Tex. R. App. P. 9.4(i) ...............................................................................................41
Tex. R. Civ. P. 166a (c) .............................................................................................7
Tex. R. Evid. 902(10)........................................................................................ 26, 27
Other Authority
Black’s Law Dictionary 284 (7th ed. 2001) ............................................................35
viii Statement of the Case
Nature of the Case Appellant Calleja-Ahedo sued Compass Bank because it did not refund payment of an allegedly forged check that Appellant did not report to Compass Bank for more than 18 months
Trial Court 55th Judicial District Court, Harris County, Texas, the honorable Jeff Shadwick presiding
Course of Proceedings The case was decided in favor of Compass Bank on cross motions for summary judgment
Trial Court’s Disposition In its Final Summary Judgment On All Claims By and Between Plaintiff and Compass Bank signed December 8, 2014 (CR735-37) the trial court entered a take nothing judgment on all of Appellant’s claims and awarded judgment in favor of Compass Bank for attorneys’ fees, contingent attorneys’ fees, costs and expenses.
1 Appellant’s Issues [Restated]
In eight issues Appellant argues that, despite the undisputed fact that
Appellant did not examine statements or inquire into his bank account for more
than eighteen months, Compass Bank was not entitled to summary judgment, was
not entitled to the attorneys’ fees awarded, and that Appellant rather than Compass
Bank should have been granted summary judgment on Appellant’s claim against
Compass for declining to reimburse him.
Statement of Facts
This dispute involves an allegedly forged check and subsequent transactions.
Appellant claims these transactions were not authorized and resulted in charges
against a deposit account (#------3759) with Compass Bank. (The “Account”).
Appellant did not report any unauthorized activity to Compass Bank for more than
18 months.
In 1988, Appellant opened an Account with Compass. CR50, 230.
Appellant, his wife, Elizabeth Haller de Calleja, and his father, Francisco Calleja
Cajigas, all were signatories on the Account from its opening to its closing in 2014.
CR46, 50. Sra. de Calleja and Sr. Cajigas are not parties to this suit and neither
gave testimony or other evidence. See, e.g., CR420, et seq. The Account signature
card, signed by all three owners, includes Appellant’s Mexico City address. CR50,
230.
2 At all times from 1988 to 2014, Account statements were available upon
request at any Compass Bank branch and, since long before 2012, Account
statements were accessible on-line. CR397. For four out of the more than 24 years
of the relationship, Compass Bank also mailed monthly statements of the Account.
According to Appellant, for convenience and security because he lives in a “suburb
of Mexico City” (CR 46), “prior to July 2012, [he] directed the bank statements for
the Account be mailed by the Bank to the address of [his] brother” in The
Woodlands, Texas. CR46.
The statement for May 2012 activity is the last statement mailed to
Appellant’s brother’s address. At the request of someone who provided sufficient
identifying information regarding Appellant’s account to identify himself as
Appellant, Compass Bank mailed the statement for the period May 31 through
June 28, 2012 to an address in Cupertino, California. CR246. The next several
statements were mailed to Sacramento (CR249-57) and, thereafter, to an address in
Georgia. CR 258, et seq. Although Appellant claims he did not tell Compass Bank
to change the mailing address (see, e.g., CR46), Appellant presented no affidavit
testimony or other evidence from the other two owners of the Account.1 And, there
1 Co-signatories on the Account, Ana Elizabeth Haller de Calleja and Francisco Calleja Cajigas, each also had the right to change the mailing address. See CR202, CR212; see also CR412, et seq. (Compass’s motion to strike); CR685 (Order at ¶ 6, overruling Compass’s objection).
3 is no evidence that anyone—not Appellant, either of the other Account owners, or
Appellant’s brother—ever contacted Compass Bank to notify it that Account
statements were no longer being received at the Texas address.
On June 26, 2012, the account was debited $33.23 for checks – this charge
appeared on the June statement. CR246. Appellant alleges that this charge was
unauthorized. On July 30, 2012, a check in the amount of $38,700.00 was paid
from the Account. CR249. The transaction appears on the July statement. Id. From
July 30, 2012 until January 2014, Compass received no notice that Appellant had
any complaint with his Account.
Eighteen months later, in January 2014, Appellant alleges he “discovered a
problem” when “an acquaintance” to whom he had written a check told him that
check was returned marked “account closed.” CR47. When Appellant finally
contacted Compass Bank in the last week of January 2014, he was shown a copy of
the $38,700.00 check (id.) posted to the Account and listed on the Account
statement a year and one-half earlier. CR71. For the first time, he claimed the
check was forged. CR47. When asked by Compass what he did to monitor the
Account after January 2012 (6 months before the alleged forgery), Appellant
answered under oath, “There was no need to ‘keep track’ of banking information
because no authorized checks (except perhaps two checks described in response to
Interrogatory No. 10) would be shown in statements after May 2012.” CR321-22.
4 Plaintiff failed to provide any evidence or other testimony that he regularly
reviewed his account statements as required by the deposit agreement.
The deposit agreement applicable to the Account (CR202, 205, et seq.)2
provides, “If we have a deliverable address on file for you, we will mail or deliver
to you periodic statements for your account at approximately monthly intervals
….” CR212. These materials “may be mailed to … the address shown in our
records.” Id. “Our records regarding [the Account] will be deemed correct unless
you timely establish with us that we made an error.” Id. The agreement also
instructs Appellant to “Notify us promptly if you do not receive your statement by
the date you normally would expect to receive it.” Id. The agreement further
provides:
… We may make statements, cancelled checks (if applicable to your account), notices or other communications available to you by holding all or any of these for you or delivering all or any of these items to you in accordance with your request or instructions. If we hold statements or notices to you at your request or because you fail to provide us with a current address, they will be deemed delivered to you when they are prepared (for held statements), mailed (for returned mail) or otherwise made available to you. 2 Appellant disputes that the February 2012 edition of the deposit agreement applies. The 2008 deposit agreement (the one Appellant advocates) permits amendment and provides Compass will notify Appellant of amendment of the agreement by either mailing notice to “the last address shown on our records” … “or by posting the amendment in our offices.” CR68. The 2008 agreement also provides: “By continuing to maintain your account or obtaining services or products relating to this Agreement or your account after the amendment becomes effective, you agree to the amendment of this Agreement.” Id. The 2012 deposit agreement includes substantially similar language. CR219. There is no dispute that Appellant maintained the Account after February 2012. See CR228.
5 Id. Appellant did not report any unauthorized transactions, nor did he inform
Compass Bank he was not receiving mailed monthly statements, at any time before
January 2014.
The deposit agreement includes Appellant’s (and the other account owners’)
promise to “carefully examine each account statement ….” CR212. It includes the
owners’ “agree[ment] to act in a prompt and reasonable manner in reviewing your
statement or notice and reporting any exceptions to us.” Id. “This means that, if
you do not report exceptions to us within thirty (30) days after we send or make the
statement or notice available to you, we will not reimburse you for any such
disputed amounts or any loss you suffer, including, but not limited to, any amounts
lost as a result of paying any unauthorized, forged, or altered item ….” Id.
Compass Bank paid a check on July 30, 2012. Appellant waited 18 months
to tell Compass Bank he believed the check was forged. Likewise, Appellant did
not tell Compass Bank for 18 months that statements sent to his brother’s address
every month for four years stopped showing up after June of 2012. Appellant made
no effort to obtain copies of statements from any Compass Bank branch, via the
internet or otherwise, at any time between July 2012 and January 2014. See
CR397.
6 Standard of Review
Summary Judgment
A. Generally
The standard of review for summary judgments is “de novo.” Mid-Century
Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, this Court determines all questions presented and
renders the judgment that the trial court should have rendered. See Berry v. Encore
Bank, 01-14-00246-CV, 2015 WL 3485970, at *4 (Tex. App.—Houston [1st Dist.]
June 2, 2015, no. pet. h.) (citing Tex. Workers’ Comp. Comm’n v. Patient
Advocates, 136 S.W.3d 643, 648 (Tex. 2004)).
B. Traditional Summary Judgment
The moving party bears the burden of showing both no genuine issue of
material fact and entitlement to judgment as a matter of law. Tex. R. Civ. P. 166a
(c); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997);
Kennamer v. Estate of Noblitt, 332 S.W.3d 559, 563 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). In deciding whether there is a genuine issue of material
fact, the Court takes evidence favorable to the non-movant as true and, all
reasonable inferences benefit and all doubts are resolved in favor of the non-
movant. Am. Tobacco Co., Inc. v. Grinnell, supra; Kennamer v. Estate of Noblitt,
7 332 S.W.3d at 563 (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005)).
Summary judgment for a defendant is proper if the defendant disproves at
least one element of each of the plaintiff’s claims or affirmatively establishes each
element of an affirmative defense to each claim. Kennamer v. Estate of Noblitt,
supra (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)).
C. Evidentiary Rulings
The admission or exclusion of summary judgment evidence is reviewed for
abuse of discretion. Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d
719, 747 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing K-Mart Corp. v.
Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)). A trial court abuses its discretion
when it acts without reference to guiding rules or principles. Id. (citing Carpenter
v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002). If the trial
court acts in an arbitrary or unreasonable manner, it abuses its discretion. See Leax
v. Leax, 305 S.W.3d 22, 32 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
D. Contract Interpretation
The interpretation of an unambiguous contract is properly the subject of a
motion for summary judgment. See, e.g., Coker v. Coker, 650 S.W.2d 391, 393-94
(Tex. 1983); Derr Constr. Co. v. City of Houston, 846 S.W.2d 854, 862 (Tex.
8 App.—Houston [14th Dist.] 1992, no writ) (citing RGS, Cardox Recovery, Inc. v.
Dorchester Enhanced Recovery Co., 700 S.W.2d 635, 638 (Tex. App.—Corpus
Christi 1985, writ ref’d n.r.e.)); Rogers v. Rogers, 01-90-00852-CV, 1991 WL
179620 (Tex. App.—Houston [1st Dist.] Sept. 12, 1991, writ denied) (not
designated for publication).
When interpreting unambiguous contracts courts are bound to “ascertain the
true intentions of the parties as expressed in the writing itself.” Italian Cowboy
Partners v. Prudential Ins. Co., 341 S.W.3d 323, 333 (Tex. 2011); see also
Sonerra Resources Corp. v. Helmerich & Payne Int’l Drilling Co., No. 01-11-
00459-CV, 2012 WL 3776428,*4 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012,
no pet. h.) (mem. op.). The Court construes the contract as a whole in order to
“harmonize and give effect to all the provisions of the contract so that none will be
rendered meaningless.” El Paso Field Services, L.P. v. MasTec N. Am., Inc., 389
S.W.3d 802, 805 (Tex. 2012) (citing Italian Cowboy Partners, Ltd. v. Prudential
Ins. Co. of Am., supra).When a contract is unambiguous, courts may not consider
the parties’ interpretations or extraneous evidence to determine the meaning of the
instrument. Italian Cowboy Partners v. Prudential Ins. Co., supra; Sonerra
Resources Corp. v. Helmerich & Payne Int’l Drilling Co., supra.
9 In reviewing a summary judgment ruling that interprets a contract, the
Court’s review is de novo. See Lyle v. Jane Guinn Revocable Trust, 365 S.W.3d
341, 350 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
E. Harmless Error
In the event this Court determines the trial court committed an error of law,
this Court should reverse the judgment only if “the error complained of: (1)
probably caused the rendition of an improper judgment; or (2) probably prevented
the appellant from properly presenting the case to the court of appeals.” Tex. R.
App. P. 44.1. The test is not a “but for” test, nor is it one of mere possibility;
rather, this Court’s inquiry is whether the error probably caused rendition of an
improper judgment. See McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992)
(citing Howard v. Faberge, Inc., 679 S.W.2d 644, 648 (Tex. App.—Houston [1st
Dist.] 1984), writ refused n.r.e.)).
Summary of Argument
The material facts in this case are undisputed. First, Compass Bank paid a
check on July 30, 2012. Despite agreeing to report any unauthorized activity within
thirty days, Appellant waited 18 months to inform Compass Bank he believed the
check was forged. Likewise, Appellant failed to notify Compass Bank for 18
months that he and/or his brother were no longer receiving bank statements.
Appellant made no effort to obtain copies of statements from any Compass Bank
10 branch, via the internet or otherwise, at any time between July 2012 and January
2014. See CR397.
This Court should affirm the trial court’s judgment that Appellant recover
nothing against Compass because the undisputed facts demonstrate as a matter of
law that (1) Appellant failed to exercise the required diligence by waiting more 18
months to examine or inquire into the status of his account, and (2) at all times,
Appellant’s account statements were “made available” to him had he requested
them from Compass.
First, based on the lapse of time from July 30, 2012, when a supposedly
forged check was cashed, until January of 2014, when Appellant first reported the
alleged fraud, the trial court concluded that, “as a matter of law Plaintiff has failed
to exercise diligence in protecting himself from fraud regardless of any
shortcomings in sending bank statements.” CR735. The conclusion is based on
undisputed facts and supported by Compass Bank’s Business and Commerce Code
article 3 arguments. See CR193-98.
Additionally, based on uncontroverted evidence, much of it from Appellant
himself, that Appellant ignored his Account for 6 months before and 18 months
after the alleged forgery, the trial court also determined that “Plaintiff’s focus on
the word ‘sends’ as used in section 4-406 of the Texas Business and Commerce
11 Code is too exclusive and ignores the equally important and relevant ‘or makes
available’ language of that section.” Id.
These determinations, the operative contract between Appellant and
Compass Bank, and the terms of sections 3.406 and 4.406 of the Business and
Commerce Code preclude Appellant’s claim.
Properly applying rules of contract construction and giving effect to all parts
of the written agreement in evidence, the trial court correctly concluded that the
periodic statements of the Account were “made available.” The trial court correctly
applied the law, e.g., Business and Commerce Code section 4.406 and the written
contract, to conclude that Appellant failed to timely report any problem revealed
on available Account statements. Accordingly, Appellant’s claim was precluded.
The contract includes a signature card in which Appellant agreed to be
bound by the agreement and all amendments. By terms of the agreement as
amended, and consistent with statute, Compass Bank complied with its obligation
to make statements of the Account available to Appellant.
Appellant failed to comply with his corresponding obligation to timely alert
Compass Bank that he was no longer receiving monthly account statements. He
failed to comply with his statutory and contractual duties to timely notify Compass
Bank of any exception to activity reflected on statements of the Account.
12 Accordingly, the trial court’s judgment in favor of Compass Bank should be
affirmed.
Similarly, the trial court’s denial of Appellant motion for summary judgment
should be affirmed. Appellant did not conclusively prove payment of the check or
any other transaction was unauthorized. Neither of two co-owners of the Account
gave evidence. And, Appellant failed to conclusively prove his satisfaction of
conditions precedent to any right to recover.
Finally, the trial court’s award of attorneys’ fees to Compass Bank pursuant
to the contract between the Parties should be affirmed.
Argument and Authorities
I. Appellant’s Failure to Inquire for 18 Months Is Negligent as a Matter of Law.
It is undisputed that Appellant failed to examine his bank statements or
otherwise inquire into the status of his bank account for more than 18 months.
Because this fact was not disputed, the trial court concluded that, “as a matter of
law Plaintiff has failed to exercise diligence in protecting himself from alleged
fraud ….” CR735. No reasonable person could disagree: failure to reconcile bank
statements for months on end is unreasonable; failure to look at an account
statement month after month is unreasonable; failure to even alert the bank that
statements have stopped showing up when and where expected is unreasonable.
13 The 2012 deposit agreement provides that Appellant (and the other Account
owners) “agree(s) to act in a prompt and reasonable manner in reviewing your
statement or notice and reporting any exceptions to us.” CR212. Further, the
deposit agreement directs Appellant to “[n]otify us promptly if you do not receive
your statement by the date you normally would expect to receive it.” Id. It is
undisputed that Appellant neither reviewed the status of his account nor notified
Compass that he had not received statements for at least 18 months. CR47.
The deposit contract between Compass Bank and Appellant is “a contract in
writing for all purposes.” Tex. Fin. Code § 34.301 (a). As the Texas Supreme
Court has written:
Contracting parties are generally not fiduciaries. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997). Thus, due diligence requires that each protect its own interests. See Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 840 (Tex. 1968) (“As a party to arm’s length business transactions, respondent had a duty to use ordinary care for the protection of its own interests”). Due diligence may include asking a contract partner for information needed to verify contractual performance. See [Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001)] at 736; [HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998)] at 886. If a contracting party responds to such a request with false information, accrual may be delayed for fraudulent concealment. Wagner & Brown, 58 S.W.3d at 737; HECI, 982 S.W.2d at 886. But failing to even ask for such information is not due diligence. See Wagner & Brown, 58 S.W.3d at 736; HECI, 982 S.W.2d at 886.
Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006) [emphasis added].
14 In this case, it is undisputed that Appellant failed to even inquire about his
account for more than 18 months. Id.; see also, e.g., Union Planters Bank, Nat.
Ass’n v. Rogers, 912 So. 2d 116, 122 (Miss. 2005) (A 4.406 case in which the
court said, “A reasonable person who has not received a monthly statement from
the bank would promptly ask the bank for a copy of the statement.”).3 Thus, apart
from Appellant’s obligations pursuant to 4.406 (see infra), Appellant’s admitted
and unjustified failure to have discovered irregularities in the Account because
“[t]here was no need to ‘keep track’” (CR321) precludes his claims. 4 Assuming
without conceding that an imposter was involved, Appellant’s failure to “keep
track” permitted the alleged imposter to access and make use of Appellant’s
account information. Had Appellant routinely reviewed the account activity, he
3 See also, e.g., Myrick v. Nat'l Sav. & Trust Co., 268 A.2d 526, 528 (D.C. 1970) (unjustified failure to inquire as to lack of receipt of monthly statements and cancelled checks held negligent as a matter of law); Coleman v. Bhd. State Bank, 3 Kan. App. 2d 162, 169, 592 P.2d 103, 111 (1979) (citing Myrick); Westport Bank & Trust Co. v. Lodge, 164 Conn. 604, 611- 12, 325 A.2d 222, 226 (1973) (reasonably prompt and careful examination of the altered statements would have disclosed the forgeries many months before they ultimately were discovered and that the lack of effort on the part of the defendants to make such examination constituted negligence.); Terry v. Puget Sound Nat. Bank, 80 Wash. 2d 157, 159-60, 492 P.2d 534, 535 (1972) (Monthly statements were intercepted by wrongdoer and not received by plaintiffs; plaintiffs did not inquire of the bank nor discuss between themselves this unusual absence of statements; and, only after they received notice that the account was overdrawn did they go to the bank and discover forgeries, such “facts constitute substantial evidence of negligence on the part of the plaintiffs.”). 4 It appears that Appellant is arguing, without citation to authority, that an exception should apply to his obligation to monitor the Account if he does not use the Account for some period. There should be no such exception. Even if a depositor does no banking for an extended period, when he fails to monitor the account, he opens the door for a fraudster to engage in unauthorized activity without detection.
15 would have discovered the allegedly unauthorized charge of $33.23 for new checks
(CR246), thereby alerting him to the potential for the alleged unauthorized activity
that appeared on subsequent statements. But, his failure to monitor the Account
for more than 18 months permitted the alleged imposter to purchase blank checks
with Account funds and to then use those checks undetected. Assuming the truth of
Appellant’s allegations, the alleged imposter’s forgery (using check stock
Appellant claims he did not purchase) was made possible by Appellant’s negligent
failure to examine Account statements—or even to inquire about them—for 6
months before and 18 months after the alleged forgery. 5 See Tex. Bus. & Com.
Code § 3.406 (a).
In addition to the 4.406 arguments discussed below, Compass Bank moved
for summary judgment pursuant to section 3.406. 6 Tex. Bus. & Com. Code §
3.406; CR193-98. Section 3.406(a) provides:
5 Rewarding Appellant’s admitted lack of diligence would undermine the UCC’s “discrete fault scheme, specifically allocating responsibility among parties to a banking relationship” and create untold uncertainty. See Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 683 (Tex. App.— Houston [1st Dist.] 2008, pet. denied). A customer could willfully ignore his accounts, have a third person conspire to change the address and drain the account then months or years later sue to hold the bank liable. 6 Compass also argued section 3.405 but does not advance any 3.405 arguments here, except by analogy. For example, Appellant entrusted his brother with responsibility to receive and hold statements in Texas. The brother failed for 18 months to inform Appellant that statements were no longer arriving as they had. Appellant is responsible for his brother’s failure to discharge the responsibility he was given, just as if the brother had been Appellant’s employee.
16 (a) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
Tex. Bus. & Com. Code § 3.406 (a).
The trial court correctly concluded that, as a matter of law, Appellant failed
to exercise ordinary care. See CR735. That failure substantially contributed to the
making of the claimed forged instrument. See Tex. Bus. & Com. Code § 3.406.
Appellant testified about his routine for examining bank statements. For at least
four years before the alleged forgery and 18 months after, rather than receiving or
requesting statements for review personally, Appellant expected account
statements to be sent to his brother’s apartment in Texas, even though his brother is
not an Account owner. See CR46; CR 50; CR230-31; CR320. Appellant testified
he visited his brother “from time-to-time and retrieve[d] bank statements ….”
CR46. Although Appellant made it a point to say he kept statements in a “locked
drawer” in Mexico City, he offered no evidence that his brother in Texas kept the
statements in a locked drawer or that his brother’s multi-unit apartment complex
and mailbox were safe and secure. CR47. Appellant’s testimony conclusively
establishes his “from time-to-time” visits to Texas did not include any visit during
the period from July 2012 until January 29, 2014. Id. He did not disclose when,
prior to July 2012, he had last come to Texas to retrieve bank statements. In fact, in
17 answer to an interrogatory asking what he did to monitor the Account after January
2012 (6 months before the alleged forgery), Appellant answered under oath,
“There was no need to ‘keep track’ of banking information because no authorized
checks (except perhaps two checks described in response to Interrogatory No. 10)
would be shown in statements after May 2012.” CR321-22.
It is undisputed that Appellant was not requesting or reviewing account
statements in 2012 or 2013. Appellant’s admitted, willful ignorance of the activity
in his Account allowed the alleged theft to go undetected and unreported for more
than 18 months. Thus, even if Compass Bank had continued to send statements to
the brother’s apartment, Appellant still would not have discovered and reported the
alleged forgery prior to 2014. Appellant’s own testimony negates any connection
between the non-receipt of statements and his admitted inattention to Account
activity, i.e., his negligence contributing to an alleged interloper’s forgery. Tex.
Bus. & Com. Code §3.406(a). Appellant willfully left his banking information
outside his control for extended periods of as much as two years. And, his no need
to keep track rationale ignores the very basis for a customer’s duty to examine
account statements: to ensure that activity reflected on each statement is authorized
activity.
Appellant also offered no explanation why his brother, whom he trusted to
receive copies of his bank documents, never told him statements of the Account
18 were no longer arriving as they had for four years. See CR46-47. Based on
undisputed evidence—mostly Appellant’s sworn statements—the trial court
concluded:
In particular, but not the sole reason for [the October 28, 2014 order granting Compass Bank’s motion for summary judgment; CR539-40], the Court noted that where the check at issue was cashed on July 30, 2012, and the Plaintiff did not notify the bank until January 29, 2014, as a matter of law Plaintiff has failed to exercise diligence in protecting himself from alleged fraud regardless of any shortcomings in sending bank statements. … Further, duties found in the deposit agreement attached to Compass Bank’s Motion for Summary Judgment which include a requirement that the depositor “act in a prompt and reasonable manner” relating to his account statements are also important and weigh against Plaintiff’s position.
CR735-36. Appellant’s decision to forgo any diligence regarding his Account —
ignoring the Account altogether for months before and after July 2012 (see CR321-
22)—at a minimum, substantially contributed7 to the alleged forgery as a matter of
law. Tex. Bus. & Com. Code § 3.406 (a). Accordingly, the trial court’s judgment
should be affirmed.
Appellant does not directly attack the trial court’s conclusion that, as a
matter of law, he failed to exercise diligence in protecting himself. Taking a wholly
different tack, Appellant misreads this Court’s opinion in Bank of Texas v. VR
Elec, Inc., 276 S.W.3d 671 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). See
7 “The ‘substantially contributes’ test is meant to be less stringent than a ‘direct and proximate cause’ test. Under the less stringent test the preclusion should be easier to establish.” Tex. Bus. & Com. Code § 3.406, Cmt 2.
19 Appellant’s Brief (“Br.”), p. 27. That case acknowledges that for 3.406 to preclude
the customer, a bank “must prove that (1) [the customer] failed to exercise ordinary
care that substantially contributed to the alteration of the check [or the forgery] and
(2) it paid the check in good faith.” VR Elec, Inc., 276 S.W.3d at 678.
Appellant fails to appreciate how “good faith” was established in VR Elec.
After discussing Aetna Life & Casualty Co. v. Hampton State Bank, 8 a Dallas
Court of Appeals case in which “the record ‘failed to show any lack of honesty’”
and “‘contains no evidence tending to show that [the] employee … connived with
the forger or had reason to believe that he check was not genuine,’” the Court
observed in VR Elec that “[n]o evidence was developed at trial suggesting the Bank
knew of the forgery or had reason to believe it was not genuine.” See VR Elec, Inc.,
276 S.W.3d at 679-80. Similarly, Appellant does not direct the Court to any
evidence presented to the trial court suggesting a lack of good faith by Compass
Bank – there is no evidence in the record “tending to show that [Compass] …
connived with the [alleged] forger or had reason to believe that the check was not
genuine.” 9 See id.
8 497 S.W.2d 80, 87 (Tex. Civ. App.—Dallas 1973, no pet.). 9 Like the parties in VR Elec, Appellant “conflate[s] the concepts of good faith and ordinary care.” Bank of Texas v. VR Elec., Inc., 276 S.W.3d at 679; see also Br., pp. 31-32. Again citing the Aetna case out of Dallas, the Court explained that “neither ‘failure to exercise ordinary care [n]or even gross negligence is equivalent to lack of good faith.’” Id. (quoting Aetna Life & Casualty Co. v. Hampton State Bank, 497 S.W.2d at 87). It is well to note that the deposit agreement permits payment of checks “mechanically based on the information encoded on the Footnote continued.
20 As the Court has recently written, UCC “good faith” means “‘honesty in fact
and the observance of reasonable commercial standards of fair dealing.’”
Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128, 135 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (citing Tex. Bus. & Com. Code §
1.201(b)(20)). As the party alleging lack of good faith, Appellant bears the burden
of proof :
It is well-settled in Texas that “[t]he law presumes, in the absence of proof to the contrary, that the business transactions of every man are done in good faith, and for an honest purpose; and any one who alleges that such acts are done in bad faith, or for a dishonest and fraudulent purpose, takes upon himself the business of showing the same.” Compton, Ault & Co. v. Marshall, 88 Tex. 50, 29 S.W. 1059, 1059 (Tex. 1895); see also Canfield v. Bank One, Tex., N.A., 51 S.W.3d 828, 837 (Tex. App.—Texarkana 2001, pet. denied).
Id. Compass Bank’s good faith in paying the subject check is presumed and there
is no evidence rebutting the presumption. See id. Appellant does not direct the
Court to any record reference that shows or raises an issue of fact regarding a lack
of good faith. Compass Bank’s good faith and the trial court’s unchallenged
conclusion that Appellant failed, as a matter of law, to exercise diligence, together
establish the preclusion set forth in section 3.406 (a) of the Business and
Commerce Code. Tex. Bus & Com. Code § 3.406 (a). Appellant’s claims are
Previous footnote continued. item” and the parties’ agreement that “reasonable commercial standards do not require” visual review of checks. CR213.
21 precluded and this Court should affirm the trial court’s judgment on that basis
alone.
II. The Deposit Contract and Section 4.406.
Compass Bank also moved for summary judgment pursuant to Business and
Commerce Code section 4.406 and corresponding contract provisions. Tex. Bus. &
Com. Code § 4.406 10; see CR166, et seq. Section 4.406 provides, in part:
(a) A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount, and date of payment. … *** (b) If a bank sends or makes available a statement of account or items pursuant to Subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.
(d) If the bank proves that the customer failed, with respect to
10 The Uniform Commercial Code regulates a bank’s relationship with its customers. See generally Tex. Bus. & Com. Code §§ 3.101–605 (negotiable instruments); id. §§ 4.101–.504 (bank deposits and collections); Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128, 133 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 683 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (the UCC creates “a discrete fault scheme, specifically allocating responsibility among parties to a banking relationship”)). As the Court also recognizes, the bank/customer relationship may also be governed in part by the agreement between them. Id. (citing Bank of Tex., 276 S.W.3d at 677).
22 an item, to comply with the duties imposed on the customer by Subsection (c), the customer is precluded from asserting against the bank:
(1) the customer's unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
(2) the customer's unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank. *** (f) Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under Section 4.208 with respect to the unauthorized signature or alteration to which the preclusion applies.
Tex. Bus. & Com. Code § 4.406.
As Appellant correctly states, section 4.103(a) of the Business and
Commerce Code permits a bank and its customer to contractually modify the rights
and duties embodied in section 4.406. Tex. Bus. & Com. Code § 4.103(a).
Appellant concedes the parties did so in this case. See Br., p. 4. Therefore, the
transactions in issue are governed by section 4.406 and the operative deposit
agreement.
23 The February 2012 Deposit Agreement Governs the Account.
In his motion for summary judgment, Appellant sought to recover attorney’s
fees pursuant to the 2012 deposit agreement. CR44 (Appellant’s motion for
summary judgment). Reversing course, Appellant now argues that the 2012
agreement does not apply to this case, but that an earlier, 2008 agreement, applies
instead.
“A bank and its account holder may amend the deposit contract by
agreement or as permitted by Subsection (b) or other law.” Tex. Fin. Code Ann. §
34.302 (a). The signature card includes Appellant’s agreement to any amendments
of the deposit contract. CR50; CR230. The 2008 deposit agreement (the one
Appellant advocates) also contemplates amendment and expressly provides that
notice of the amendment may be mailed or may be posted in Compass Bank’s
offices. CR298-99. 11 The 2008 deposit agreement, “effective August 22, 2008”
(CR51), provides further, “By continuing to maintain your account … after the
amendment becomes effective, you agree to the amendment of this Agreement.”
CR68. The 2012 deposit agreement includes substantially similar terms, i.e., notice
by posting and acceptance of the amendment by continuing to keep the Account.
11 The “Amendments to this Agreement” provision appears at pages 20-21 of the 2008 deposit agreement. As appended to Appellant’s motion for summary judgment, the provision begins at the lower left of CR69 and is continued beginning at the upper right of CR68. A more legible copy of the 2008 “Consumer Disclosure” (deposit agreement) is appended at Tab 1 for the Court’s reference. A more legible copy of the 2012 deposit agreement is appended as Tab 2. .
24 CR219. Thus, as permitted by statute, as expressly provided in the signature card
and the both deposit agreements in evidence, and because Appellant indisputably
maintained the Account after February 2012—the events about which Appellant
complains all occurred in or after June of 2012—Appellant agreed to the February
2012 amendment. CR228; see also Tex. Fin. Code § 34.302. 12 In fact, Appellant
himself invoked the 2012 deposit agreement in an attempt to recover attorney’s
fees. CR44 (Appellant’s motion for summary judgment). The 2012 deposit
agreement is the operative deposit agreement.
As Compass Bank’s custodian testified, Appellant agreed to be bound by a
deposit agreement; the 2012 deposit agreement governing the relationship is
attached to her summary judgment affidavit; that deposit agreement contains rights
and obligations of the parties; and the attached 2012 deposit agreement “evidences
the agreement in effect between [Appellant] and Compass Bank.” CR202-03. The
trial court’s reference to “the deposit agreement attached to Compass Bank’s
Motion for Summary Judgment” correctly gives effect to the operative contract,
the 2012 deposit agreement.
Attempting to avoid the very agreement he tried to use as a basis for fees,
Appellant argues that Compass Bank’s custodian’s affidavit was conclusory. See
12 “A bank and its account holder may amend the deposit contract by agreement or as permitted by Subsection (b) or other law.” Tex. Fin. Code Ann. § 34.302 (a).
25 Br., pp. 7-9. Ms. Mueller identified herself as a Compass Bank employee and
custodian of its records and testified that “in this capacity, I have personal
knowledge of accounts held at Compass Bank.” CR202-03. This “shows how [s]he
gained personal knowledge.” See, e.g., Waite v. BancTexas-Houston, N.A., 792
S.W.2d 538, 540 (Tex. App.—Houston [1st Dist.] 1990, no writ); see also Miller v.
Raytheon Aircraft Co., 229 S.W.3d 358, 365-66 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (“The personal knowledge requirement is satisfied if the affidavit
sufficiently describes the relationship between the affiant and the case so that it
may be reasonably assumed that the affiant has personal knowledge of the facts
stated in the affidavit.”) (quoting Stucki v. Noble, 963 S.W.2d 776, 780 (Tex.
App.—San Antonio 1998, pet. denied)). Ms. Mueller identified Appellant’s
account as a “regular bank account” and governed by the attached 2012 account
agreement governing such accounts. Id. Specifically she said, “Attached as Tab 1
is a copy of the written contract governing the deposit relationship between
[Appellant] and Compass Bank.” CR202. Ms. Mueller properly identified the 2012
deposit agreement as a Compass Bank business record of which she had personal
knowledge and as the agreement “in effect between” the parties. CR203.
Evidence rule 902(10) sets out a form of affidavit to be used with business
records under rule 803(6). Tex. R. Evid. 902(10). The rule also provides that the
form set out is not exclusive. Id. As the Court has written, “An affidavit that
26 substantially complies with the form of affidavit set out in the rule will suffice.”
Khalilnia v. Fed. Home Loan Mortg. Corp., 01-12-00573-CV, 2013 WL 1183311,
at *2 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, pet. denied) (citing Fullick v.
City of Baytown, 820 S.W.2d 943, 944 (Tex. App.—Houston [1st Dist.] 1991, no
writ)). Ms. Mueller’s affidavit complies with rule 902(10). See CR202-03. 13 That
the 2012 deposit agreement is the operative agreement is conclusively established.
Compass Bank made statements available in accordance with the contract.
The complaint begins with a $38,700.00 check paid from Appellant’s
Account in July 2012.14 See CR420 (First Amended Petition). The questioned
transaction appears on the Account statement for the period June 29-July 30, 2012,
addressed to an allegedly unauthorized address in California. CR249. It is
undisputed that Appellant did not notify Compass Bank of the alleged forgery or
any other exception until more than 18 months later on January 24, 2014. See
CR240; see also CR47 (Appellant’s affidavit). Therefore, if Compass Bank sent or
made Account statements available to Appellant more than 30 days before January
13 Appellant’s argument regarding Ms. Mueller’s second affidavit is unfounded. See Br., p. 8. In her second affidavit Ms. Mueller adds factual basis for her earlier statement that the 2012 document is the agreement that “evidences the agreement in effect between [Appellant] and Compass Bank.” CR202-03. She explains the revision date in relation to Appellant’s claim that an imposter appeared after that date and she links the 2012 amendment to the signature card permitting such amendments. CR396. The testimony provides additional foundation facts. 14 The allegedly unauthorized debit of $33.23 for checks ordered appears on the previous statement. CR246. Appellant, likewise, did not notify Compass of this debit for more than 18 months.
27 24, 2014, Appellant’s claims in this case are precluded, as a matter of law, under
section 4.406 (in addition to the 3.406 preclusion) just as the trial court determined.
Tex. Bus. & Com. Code § 4.406 (d), (f).
As noted above, a bank and its customer may modify the rights and duties
embodied in section 4.406. Tex. Bus. & Com. Code § 4.103(a). There is no dispute
that the parties did so. See Br., p. 4. Among other things, the parties agreed to the
meaning of “make available.” For example, the 2012 deposit agreement provides
that Compass Bank “may make statements, cancelled checks (if applicable …),
notices or other communications available to you by holding all or any of these
items for you, or delivering all or any of these items to you, in accordance with
your request or instructions.” CR212. The 2012 deposit agreement also provides,
“[i]f we hold statements or notices to you at your request …, they will be deemed
delivered to you when they are prepared ….” CR212. Compass Bank’s Ms.
Mueller testified that copies of statements were available at any branch and were
available on-line for viewing or for ordering copies. CR397.15 Her uncontroverted
testimony was that Compass Bank’s records contain no indication that Appellant
ever called about a missing statement and no indication that Compass Bank ever
15 Appellant suggests that because he was in Mexico he could not simply go to his local bank. Appellant’s location does not affect and should not alter his obligation to timely notify Compass Bank. Plus, because, as Ms. Mueller testified, Appellant’s post June 2012 statements were available on-line, he could easily have accessed them from wherever he was.
28 refused a request to provide copies of any statements. Id. Ms. Mueller also testified
that statements Appellant did receive include several alternative methods for
contacting the bank to alert it to any perceived problem. 16 Id. Thus, as the trial
court correctly concluded on the established facts of this case, Account statements
were “otherwise made available” within the meaning of section 4.406 of the
Business and Commerce Code.
The deposit agreement also provides that statements “may be mailed to you
at the address shown in our records ….” CR212.17 The contract provides and
Appellant agreed that Compass Bank’s “records regarding your accounts will be
deemed correct unless you timely establish with us that we made an error.” CR212.
“Timely” means within 30 days. Id. Appellant said nothing about any error from
July of 2012 until the end of January 2014. Because Appellant admittedly failed to
“keep track” of the Account from as early as January 2012 through January of
2014, the successive addresses “shown in our records” are “deemed correct” as
16 Appellant’s brother got the statements through May of 2012, each of which had, among other things, a 1-800 number for contacting Compass Bank. When the expected next statement allegedly did not appear, Appellant (and/or his brother) had more than adequate information to have timely contacted Compass Bank. 17 The signature card, evidence both parties presented to the trial court, part of the contract in writing for all purposes (Tex. Fin. Code § 34.301 (a)), and expressly incorporated into the deposit agreement (CR207; CR735) is Appellant’s “address shown in our records” and did not change:
CR50; CR230.
29 provided by the clear terms of the deposit agreement. Because Appellant did not
“timely establish with us that we made an error” (CR212), Account statements
were “otherwise made available” within the meaning of section 4.406 of the
Appellant failed to make any timely report about the allegedly unauthorized
activity. He did not timely report that his brother was no longer receiving Account
statements, even though the deposit agreement says, “[n]otify us promptly if you
do not receive your statement by the date you normally would expect to receive it.”
CR212. Appellant cavalierly ignored the Account for at least two years. See
CR321-22 (“There was no need to ‘keep track’ of banking information because no
authorized checks … would be shown in statements after May 2012.”). Neither the
Business and Commerce Code nor the deposit agreement places the risk of loss on
Compass Bank for Appellant’s unilateral decision to ignore his financial affairs.
Rather, Appellant had contractual obligations regarding the oversight of his
Account, including the obligation to timely review account activity and report
exceptions. CR212. The summary judgment record conclusively establishes
Appellant’s failure to satisfy these obligations. Accordingly, Compass Bank’s
records are deemed correct, including the records of successive addresses to which
statements were sent. See id.
30 Upon this record, having construed the written contract governing the
Account as a whole, giving effect to all its provisions so that none is rendered
meaningless,18 the trial court correctly and sustainably concluded that Compass
Bank made statements of the Account available and Appellant waited far too long
to report any unauthorized transaction. See El Paso Field Services, L.P. v. MasTec
N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012) (citing Italian Cowboy Partners,
Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d at 333); see also Am. Airlines
Employees Fed. Credit Union v. Martin, 29 S.W.3d 86, 94 (Tex. 2000).19 Account
statements were “sent or otherwise made available” within the meaning of the
deposit agreement and section 4.406 of the Business and Commerce Code.
Appellant’s claims in this case are precluded and, the judgment of the trial court
18 Both parties submitted the Account signature card as evidence. This Account record includes the phrase, “Hold All Correspondence” in the address field. Neither party focused on the import of the term in the trial court. But, in order to construe the deposit agreement, the trial court (and this Court) must “ascertain the true intentions of the parties as expressed in the writing itself.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011) (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)). This means examining and considering “the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Id.; Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Gramen Farm, LLC v. Huyen Nguyen, 01-13-00569-CV, 2014 WL 4374120, at *3 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, no pet.); see also Whitney Nat. Bank v. Baker, 122 S.W.3d 204, 208 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“[t]he signature card for a bank account is a type of contract.”); Stauffer v. Henderson, 801 S.W.2d 858, 869 (Tex. 1990); Tex. Fin. Code § 34.301 (a). 19 “[T]he purpose of section 4.406 is to place the burden on those best able to detect unauthorized transactions so that further unauthorized transactions can be prevented, and this burden includes the risk of nonreceipt of account statements.”
31 III. As Prevailing Party Compass Bank is Entitled to Recover Attorneys’ Fees.
The 2012 deposit agreement includes the parties’ agreement regarding the
recovery of attorneys’ fees:
Attorneys’ Fees. In any action between you and us in court, the prevailing party shall be entitled to recover its reasonable attorneys’ fees expended in the prosecution or defense of the court action from the other party.
CR209. Because Compass Bank prevailed, it is entitled to recover its reasonable
fees expended.
Appellant concedes the parties’ agreement that the trial court could
determine the reasonableness and necessity of Compass Bank’s fees. See Br., p.
31; CR714. The correspondence referenced at CR714 is memorialized in
[Appellant’s] Supplemental Response to Defendant’s Claim for Attorney’s Fees,
CR698, et seq. “Both parties agreed that an evidentiary hearing would be
unnecessary and that the Court could rule on whether attorney’s fees were
reasonable and necessary based on affidavits and argument.” CR698. Consistent
with the agreement, the trial court’s determination of the recoverability and amount
of fees awarded in favor of Compass Bank was accomplished separately from the
summary judgment hearing on liability. See CR539-40; CR541; CR735. Thus, by
agreement the parties effectively requested and participated in a bench trial on
attorneys’ fees and did so on counsel’s respective affidavits.
32 Despite previously arguing that the 2012 deposit agreement entitled him to
an award of attorneys’ fees, Appellant now argues that the 2012 deposit agreement
was not the deposit agreement in effect. As above, the signature card includes
Appellant’s agreement to any amendments of the deposit contract. CR50; CR230.
The 2008 deposit agreement—Appellant’s preferred agreement—similarly
contemplates amendments to the parties’ agreement. See CR68. Among the
pertinent provisions is that the bank may notify the account owner of an
amendment by mailing notice or by posting notice at the bank. Id.; see also CR219
(2012 deposit agreement); CR50 (signature card). Appellant implicitly argues he
did not “receive” the 2012 deposit agreement. But receipt is not material. By terms
of both the 2008 and 2012 deposit agreements, the successive amendments also
were effective because Appellant continued to maintain the Account after August
2008 and after February 2012. CR68; CR219.20 The 2012 deposit agreement
applies including the agreement that a “prevailing party” in litigation “shall be”
entitled to recover its reasonable fees. CR209.
Appellant next complains that attorney Huttenbach’s first affidavit is
insufficient because the affidavit “states that the Bank is entitled to recover
$28,840.19 of fees and costs, but the attached fee statements only total
20 The agreement enforced by the Texas Supreme Court in Am. Airlines Employees Fed. Credit Union v. Martin was an amended agreement which customer Martin did not obtain at the time but, nevertheless, “continued to maintain his account.” See Martin, 29 S.W.3d at 96.
33 $22,722.69.” Br., p. 33. First, the math is incorrect; the invoices attached to the
first affidavit total $25,201.69—Appellant omitted to include the $2,479.00
appearing at CR335.21 Those invoices reflect time spent only through August 28,
2014. See CR361. Second, Mr. Huttenbach’s fee opinion on September 19, 2014
was for “at least” $28,840.19 and he allowed for another 12 hours in the event
there was a reply to prepare or a hearing to attend. CR331. There is no unexplained
discrepancy in connection with the first affidavit.
Appellant argues that all the fee bills attached to the three affidavits “still do
not add up to the $49,186.65 awarded.” Br., p. 34. This is true: the attached fee
bills add to $51,728.05. See CR575; CR579; CR588; CR597; CR602; CR612;
CR619; CR724. Again, Mr. Huttenbach’s testimony was that reasonable and
necessary fees were “at least” $49,186.65, the amount awarded. CR716. Any error
in awarding the amount that counsel opined instead of the sum of all invoices is
harmless—actually beneficial— as to Appellant.
21 Likewise, Appellant’s assertion that “all of his affidavits” state Mr. Huttenbach’s hourly rate as $345.00 is not consistent with the record. See Br., p. 33. The September 19, 2014 affidavit recites a $330.00 rate. CR331. The November 21, 2014 and December 5, 2014 affidavits both recite a rate of $345.00. CR604; CR716. In any event, the parties agreed and expressly requested the trial court to determine the reasonableness and necessity of Compass’s claim for fees based on affidavits and argument. See Br., p. 31; CR698, et seq.; CR714.
34 Appellant also suggests the Mr. Huttenbach’s affidavits were “conclusory.”
Br., p. 34. 22 As the Court has written: “The term ‘conclusory’ is defined as
‘[e]xpressing a factual inference without stating the underlying facts on which the
inference is based.’” E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d
800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Black’s Law
Dictionary 284 (7th ed. 2001)). The argument is patently unavailing. Attorney
Huttenbach, an expert witness, gave his opinion. The opinion is based on personal
knowledge, the experience and factors set forth in three successive affidavits, and
is supported by authenticated, attached detailed billings to the client. See CR331, et
seq.; CR604, et seq.; CR716, et seq.
Appellant further argues that Compass Bank’s evidence does not comply
with Long v. Griffin. 23 See 442 S.W.3d 253 (Tex. 2014). The Long case is
distinguishable but Compass Bank’s evidence, nevertheless, surpasses the stated
minimum standard. Not all claims asserted in Long would support an award of
fees; only those on which the Griffins prevailed within the scope of chapters 37 or
22 The Vega case cited does not say any affidavit was conclusory, rather only that the nonmovant created a fact issue. See Vega v. Compass Bank, 04-13-00383-CV, 2014 WL 953466, at *3 (Tex. App.—San Antonio Mar. 12, 2014, no pet.). 23 Appellant also cites City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013). Montano, like Long, references the same “basic proof” standard articulated in the El Apple I case (see p. 36, infra). 414 S.W.3d at 736. Compass’s expert provided more than “time estimates based on generalities.” See id. He offered his qualifications, described certain tasks performed, and assuming these were mere generalities, attorney Huttenbach referenced the attached pages with time entries disclosing the dates, the timekeeper and his or her rate, the tasks performed, and time billed in increments of 1/10th of an hour. See, e.g., CR334-62; CR608-19; CR718-24.
35 38 of the Civil Practice and Remedies Code. Id. at 255; Tex. Civ. Prac. & Code §§
37.009, 38.001. Recoverability of fees in this case is based on the prevailing party
clause in a contract. And unlike Long, Mr. Huttenbach attached redacted invoices
to his affidavits; no such records were presented in Long. See Long, 442 S.W.3d at
255. Quoting its previous decision in El Apple I, Ltd. v. Olivas, the Long court
again described the minimum of sufficient evidence as “evidence ‘of the services
performed, who performed them and at what hourly rate, when they were
performed, and how much time the work required.’” Id. (quoting El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 764 (Tex. 2012)). Compass Bank’s invoices include each
of these categories of information. See, e.g., CR334-62; CR608-19; CR718-24.
The trial court’s judgment should be affirmed.
IV. Appellant Failed to Conclusively Establish Entitlement to Summary Judgment
For the reasons above, the trial court’s judgment should be affirmed.
Nevertheless, Compass Bank addresses Appellant’s argument that he should have
prevailed.
Appellant failed to conclusively prove that he was entitled to summary
judgment on his breach of contract claim. See CR34 et seq. As set forth above,
Appellant did not conclusively establish the terms of “the” contract he alleges was
breached. He omitted to give effect to terms included in the signature card; he
failed to conclusively establish any factual basis for avoiding terms permitting
36 amendments; he argued that the 2008 agreement applies, then tried in the same
motion to take advantage of the 2012 attorneys’ fees provision. On the other hand,
assuming without conceding and for purposes of argument only, that Compass
Bank did not conclusively prove that the 2012 deposit agreement applies, it at least
raised an issue of fact. For example, Ms. Mueller testified as custodian and on
personal knowledge that the 2012 deposit agreement is the correct agreement, in
effect between the parties. CR202.
Even if not conclusively established (Compass Bank maintains it was),
Compass Bank did far more than merely raise a fact issue regarding the preclusion
in 4.406 of the Business and Commerce Code. See CR372, et seq. Compass Bank
made available the Account statements by (1) sending them to addresses of record
“deemed correct” by terms of the deposit agreement, (2) holding the statements
and never refusing any request from Appellant to provide copies, and (3) informing
Appellant of several different methods of contacting the bank to report any
problem, including that statements were no longer arriving as expected. Statements
of the Account were made available and Appellant’s corresponding section 4.406
duties were triggered. CR212; CR230.
It is undisputed that Appellant did not report any exceptions. He did not
satisfy the condition precedent to maintaining a suit. Without conclusive proof of a
deposit contract that permits Appellant to completely ignore his Account for
37 months on end, Appellant did not and cannot show himself entitled to summary
judgment. Without conclusive proof of a deposit contract that precludes Compass
Bank from relying on its unchallenged and deemed correct records to make
account statements available, Appellant did not and cannot show himself entitled
to summary judgment.
Because the record conclusively proves that Appellant utterly ignored the
Account beginning at least 6 months before the first supposed unauthorized
transaction until 18 months after that transaction, his affirmative claims are also
precluded by section 3.406(a) of the Business and Commerce Code. Appellant was
negligent as a matter of law. That negligence substantially contributed to the
claimed forgery and Compass Bank was and remains entitled to the judgment
granted by the trial court. The judgment should be affirmed.
Conclusion
This case was disposed on cross motions for summary judgment. Therefore,
the Court determines all questions presented and renders the judgment that the trial
court should have rendered. See Berry v. Encore Bank, 01-14-00246-CV, 2015 WL
3485970, at *4 (Tex. App.—Houston [1st Dist.] June 2, 2015, no. pet. h.) (citing
Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex.
2004)). The trial court reached the correct result.
38 No reasonable person could possibly find that completely ignoring the
Account from January 2012 through January 2014 was anything other than
negligence, the antithesis of ordinary care. Appellant’s conclusively established
failure to exercise ordinary care for at least 24 months substantially contributed to
the making of the claimed forged signature.
The contract between the parties required Appellant to review his account
information and to timely report all exceptions. Timely is contractually defined as
30 days. The deposit agreement provides that Appellant “[n]otify us promptly if
you do not receive your statement by the date you normally would expect to
receive it.” With the obligation to report exceptions within 30 days, Appellant
waited over 18 months to notify Compass Bank of anything. The agreement and
common sense required Appellant to speak up if he did not receive account
statements when he expected them. The agreement and common sense require that
Appellant keep track of his own financial affairs.
Based on Appellant’s lack of diligence as a matter of law and its correct
interpretation of “make available” under the operative contract and the Business
and Commerce Code, the trial court properly and sustainably determined that
Compass Bank was entitled to summary judgment in its favor.
39 Prayer
For at least the reasons set forth above, Appellee Compass Bank respectfully
asks this Court to affirm the judgment of the trial court.
Respectfully submitted,
By: /s/ Michael D. Conner Michael D. Conner State Bar No. 04688650 mconner@hirschwest.com William P. Huttenbach State Bar No. 24002330 phuttenbach@hirschwest.com 1415 Louisiana, 36th Floor Houston, Texas 77002 Telephone: (713) 220-9162 Facsimile: (713) 223-9319
40 Certificate of Compliance
I do hereby certify that the relevant contents of this document consist of 9,797 words, in compliance with Tex. R. App. P. 9.4(i) and this document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14 point Times New Roman font, except for footnotes which are in 12-point typeface.
/s/ Michael D. Conner Michael D. Conner
Certificate of Service
I hereby certify that on this 22nd day of October, 2015, a true and correct copy of the foregoing document was served as follows:
Michael O’Connor O’CONNOR, CRAIG, GOULD & EVANS 2500 Tanglewilde, Suite 200 Houston, Texas 77063 Via Eservice
41 Case No. 01-15-00210-CV
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
Francisco Calleja-Ahedo, Appellant
From Cause No. 2014-22168 55th Judicial District Court, Harris County, Texas
APPENDIX
Consumer Disclosure (2008 deposit agreement) Tab 1
Consumer Deposit Account Agreement (2012 deposit agreement) Tab 2
42 Ta GousuMER Dlscr.osuRE
Effeetive August 21 2006
Compass Banlç a member of the BBVA Group Consumer Disclosure
Highllghts 1. Changes to Consumer Deposit Account Agreement 2 2 Changesto Checking and SavingsAccounb 4 Other Fees and Servlce Charges I Consumer Deposit Account Agreement 11
1, Definitions 11
2, Account Operations 12 3, Account Statements and Not'ces 13 4, Account Transactions 14 5. Deposits, Colleetions and Payment of ltems 15 6, Wìürdrawals 17 7. Sub"accounts 17 L Arbitration 18 9, \Âhiver of Jury Trial 19 10. Dormant and Abandoned/Unclaimed Accounts 19 11. SetOff t9 12. Waivers 19 13. Other SeMees 1g '14. lnteres-t¡ lnterest Repoding 20 15. Changes to Account Status 20 16, Applicable Law 20 17. Additíonal Provísions 20 Fund¡ Arailabillty Disdosure 21
Elecironic F¡nd llansfer Dlsclosure St¡tement 22 Tarpaye r ldentlf lcati o n N u m b ers (Bad For informdion on MÍscellaneous Fees at Compass Bank, please see pege I of this Booklet. 2 Other differences found in the Consumer Dlsc/osure Boo,t/ef lncfude: l. Concumer Deposit Ascount Agreement sectionsl v¡ ACCOUNTOPERATIONS - Fowers of Attorney - Service Chargeq Other Charges a ACCOUNT STATEMENTS AND NOTICES - Errors, Unauthorized Transactions and Forgeries - Record Retention A ACCOUNTTRANSACTIONS - SÍgnatures; Facsimile Signatures - Wre Transfers - lnst¡fficient Balance and Overdrafts - Stop Payment Orders - lnter-Account Tiansfers - lltegatlansactions g DEPOSITS, COLLECTIONS, AtlD PAYMENT 0F ITEMS - Deposits by Minors, Agents or Trustees - Collection as Agent - Check Endorsement Standards - Foreign Currencies - ATM Depositories, Night Depositories, Direct Deposlt and Deposits by Mail - Chargebacks - Stale and Postdated Checks; Miscellaneous ¡ WITHDRAWALS ¡r RESTRICTIONS ON WT|HDRAWALS ;a SET OFF s ÍNTERESI'¡ INTERESI- REPORTING u CHANGES TO ACCOúNT STAIUS - Conversion to Business Accounts q ADDITIONAL PROVISIONS - Closing Your Account x APPUCABLELAW a AMENDMENT TO THIS AGREEMENT 2. Funds AYailabillty Disdosup 3. Electronlc Fund Tiansfü Dlscloeure Statement 4 Consumsr Prþacy Disdosu¡e 5. lmportånt Informatlon About Your Ched Texas State Bank i Compass Bank ; Please Note Changes to Thess Account : Terms and Features , RegularCheddng,ïexStar . Regular I $10.00 monthly Seruice Charge. $750 , Ched , ftet Checking, Freedom , Build-To-Order No monthly Service Charge or mlnlmum i n¿vantagerGroup . Free Checking i balance requirement Unlimited transactions. I ' Cheddng, PennyWise, i Choose two premium features at no charge i Student Ghed , Colmes Baslc Bonus, ' Build-To-Order , No monthly Service Charge or minímum I ComEs Famlly Bonuq Free Checking ] baJance requiæment Unlimiùed transactions, I Colmes Bonus Plus, î Choose two premium festures at no charge ' FlSl Madlson Bas'q (additional features are $2/statement cycle): ¡ : San Augustine FlSl í Free foreign ATMs, rebates of ATM fees other , : lndlvldual, San Augustine " banks charge, up to 925 cash on your account ': '' FlSl lolnt, San Augustine FlSl Famlly, FlSl Madison j anniversary, înterest on yourchecking account I bahnce, cash back on Visa Check Cárd Famllç and Vista Club r purdrases, double Visa E¡rùas Rewards points, , one overdraftlee waiyer per year. Accidental ; Death lnsurance, Savers Club Book, Soþurns ' magazine, Payment Card Protec'tion, Key Ring i' Protection and Half Price Hotel no longer available. Customers enrolled in Add-On Values ' will be corverted to CompassPlus and will be assessed a $5 monthly fue. ' F¡fW Pl¡¡s Free Che<*ing, ; Basic 50 i No monthly Service Charge or minÌmum balance Gold Chêcldng, Senior ' Checking , requiremenl Unlimited t¡ansactions, Free ,I Advantage Chedring, i travele/s checks. Free supply of custom checks. Senior Partner Chedring, Bonus rates available on CDs, Foreign ATM , Seniot Chedtlng, Senior r transaction fees apply. Standard fees willapply Chedrlng (TRN), Senior ' for cashier's checks, Customers enrolled in Add- Gold, and Senior Gold Plus ' On Values will be converted to CompassPlus and will be assessed a $5 monürly fee, i'4: Ghanges to Ghedcing and Savlngs Accounts continued Here ars highlights to the changes in the torms and feetures of your accounts afler they transfer to .":ioi:: _'i* i rexas State Compa$ Bank i Plesso llote Changes to These Account I Terms and Feaü¡res r.B".lk EIA (Electronic Tlansfar I Basic Checking : All current terms, conditions, and Service Charges AccountL Value Ched Fnedo¡n Select Ched I I another bank's ATM and eligible for surcharge I I I rebates. Free custom wallet checks, cashieds i I checks, and travele/s checks. Bonus rates I I ( I available on CDs. Customers enrolled in Add- I I I On Values will be converted to CompassPlus and will be assessed a $5 monüly fee. I ! Texas Freedom Glub, I Directions No monthly Servíce Charge wÌth a minimum i I I Texes F߀dom Oub (TRN), Checklng daily collected balance of $1,000. Otherwise, Relaüonshlp Chedcing, $6 monihly Service Charga No fee for using I I and Senlor Medallion another bank's ATM and eligible for surcharge I Ghedtlng rebates. Free custom wallet checks, cashie/s I l checks, and travele/s checks. Bonus rates I available on CDs. Free new 3x5 Safe Deposit Box in the fini year, 2590 discount thereafter. Two Tree Stop Payments per month. The following Rate Tiers apply: $0-$1,999; $2,000+. Customers enrolled in Add-On Values will be converted to CompassPlus and will be assessed a $5 monthly fee. à Changes to Ghed lexas StatE GompassBank Please Noûe Changes to These Account Bank ïerms and Feaü¡res Group lntercst Ched RegularSauings and Basic Savings $15 quarterþ Senitce Charge. $500 minimum BorderSavlngs daily collected balance required to waive quarterly Se¡vice Charge. Accounb with more than four (4) withdrawals per quarier will receive a $3 Service Charge for eadr additÍonal wihdrawal. The following Raie'lìer applies: $O¡. I I I Group Savings Baslc Savings No rnonthly Service Chaçe or rninimum I balance requirement Acc¡unb with more tran four (4) withdawals per quarter will receive a $.3 Service Charge for each addítional wihdrawal. Thefollowing Rate Ïer applies: $0+, StulentSavlngs Young Savers No quarterly Service Charge or minirnum balance requirement Accounts wíth more than four (4) withdrawals per quarter will recefue a $3 Service Charge for each addilional witrdraryal. The following Rate Ter appliesr $0+. Monery MartetSavings, Consumer No monthly Service Charge or minimum Freedom lnvesùnent, Prefened balance reguíremenl U nlimited in-person Monq Henagement Money Market transactions A $10 excessi,/e bans'fer fe.e is Saylngg and he¡nÍer assessed per statement rycle for pre Money llarket authorized or telephone transfers over six (6) per sbtement q¡cle. A $10 excsssíve 'fhetullowlng Rale Tbls eply: $G$9899; $ 10,00$$ t9p9q $20,00G$49,999; $6O,000-$9999e¡ 3 tO0,00C$249,99q S250,æG$9ggpg9¡ $1,000O0G$2,49Ogsg; $2,500,000-$4Ê99,999; $5,0oQ000+. B ui I d-to' Ord er Freo Che*in g Acco unt Dîsclosu rc PTEAT¡E REfAIII A COPT OFTIIIS DISCTOSURE FOR FUÏURE REFEREIICÊ Standard Benefltc/Requlrements r Requires $25 rninimum depositto open u Checks posted to the account are not retumed in üre monfily staùement but photocopíes are available. Charges for photocopies are $3.0O per posted item, s An image sbtement is available for a service charge of $3,00 per month An image statement includes reduced pictures of cancelled úecks in numerical order. The paper copies of cancelled checks will not be retumed in the statement {or this account E Free safekeeping of checks, DeflnlUons tt Account Anniversary The Account Anniversary is lhe month and day you opened your Build-to'Order Checking account or converted to a Build-to-Order Checking account ö Feature Year:This ls a period of tureh/e strrnent qrcles between Account Anniversaries, beginning with the stabment q¡de in whidl üre Account Anniversary falls. Certain Custom Features may be tþd to üre ftablr€ Yeer. Ptease see lhe description of Custom Features below ¡ Custom Features: These are the additional features you can select to customize your Build-to- Order Checking accoun{ and they are listed below Clrstom Feaü¡res:Selecttwo Gusfom Fealuresat no'charge. Go onllnq visîtyourbrandt or ælI l -SOI'GOI|PÁSS to select your lwo leatures (See cña¡ges lor addÍtlonal featurcs below) q Nofeeforuslng anotherbanKsATM s Rebate of Afil lees that other banks dtarga ln order to receive rebate, ATM receipts showing ATM iees or account statements showing ISF fees rnust be mailed within 90 calendar days of the ATM transaction to Compass Banl< Rebate will be dtrectly deposited into the checking account within 10 business days of receipl Compass does not rebate lnternational Seruice Fees for Point of Sale transactions (for example, purcfiases from a foreign merchant using your Check Cæd), 2 lnteresil on your drcd 7 Anniversary. lf the cash bonus feature is selected at account opening and subsequently de- selected prior io the Account Anniversary the cash bonus accrued prior to the deselection of the feature will not be paid, Cash bonus wllt be direcüy deposited into the Build-to-Order Checking account s Limit two bonus features per customer. :: Double Vlsa Extras polnts Visa Extras program enrollment required. Standard Visa Extras poinls will be earned 0n the month following your Vsa Extras account update, Compass wifl match those points earned in the previous month, ihereby giving double the rewards. Points are paid only on Oualifying Purchases. A "Oualifying Purchasen is any signature-based purchase, lntemet purchase, phone or mail-order purchase, bill payrnenl contactless purchase (purchases made by holding your Visa card or other device up to a secure reader instead of swiping your card), or small dollar purchase fur which you are not required to sign, made with an enrolled Visa card, that is processed or submitted through the Visa U.S,A" lnc, payment system. A Oualifying Purchase does not include a purdrase made using a Personal ldentification Number (PlN) or purchase you initiate through ideniification technology that substitutes for a PlN. Additional restrictions apply. For more Ìnformation on qualifying purchases, sêe program terms and condìtions, .* Cash Bad< on Vlsa Ghed< Card kansac;üon¡ x Available for the primary Check Card for the account only, Earn cash back on Oualifying Check Ga¡d Purchases' routed tirrough Vsa ('See'Double Visa Extras Points'for Oualifying R.rrchase definltion,) 's $0.05 will be eamed for every signaù.rre-based purchase (excluding teller cash disbursements and merchant authorizations that are not completed). 'u ln addlüon, $0.06 will be eârned for every two PIN-based purchases (excluding cash transactions, ATM kansadions, quasFcash transactions, payments made for prepaid or re loadable cards sudr as certa¡n gift cardq Visa Buxx and similar cardq transadÍons conducted at Global Access Cash Terminals and pre-authorizations for transactions). n Retums or debits of a Visa Check Card ciarge will be deducted from ttre cash calculation, n Cash back rewards will be credited at üre end of the statement cyde for lhe Build-to-Order Checking accq¡nt linked to lhe primary Check Card. The posting date br a quelifying transaction will determlne the date of the transaction for puryoses of this feafure. Credits for the net purchase activity will be made at the end of the clcle pedod. lf üre Bulld-to-Order Ch.ec.kilg account is dosed, lhe ca$r back rerrards accrued in lhe cunent statement qrcle willnot be paid. :¡ One Oyordrãft Frs (NSF Chargc) Forglvenese p€r yêer Applies to one NSF Charge-Paid ltem or one NSF Charge-Retumed ltem (se€'Miscellaneous Fees'). The Overdraft^Fee_(Nsf Chuge) Forgiveness Feature must be redeemed durlng your anniversary year in which this feature ls selected or lt wlll be forfeited; ürts feelure does not accn¡e or carry lo¡ward into subsequent years Once yotr redeem this feah¡re lt wíll remain a s€lscûed feah¡re untll the Accq¡nt furníversary. You rnay carrcel thls feature after tte Acæunt Annversary befoæ you ædeern it in tre ner ' l:i,fi*: be cfiarged an r The "Add-On Beneflt Charge'wÍll reflect tha highest number of leaürres sêlected duñng úre g_ive¡ staþqent cyclq regardlass of the nu rber of days lhe feaùrres were n effoc¡'thõ.Add- on Elenefit charge'will be incuned on the daythe sta-tement b ganerated !f awarded¡ ratherlhe acc¡unt will ha,/e lnte a Note: Features are calculated based on statement cycle, not month, I Other Fees and Service Ghalges for Consumer Accounts ATM/Check Card Replacement Fee*,. .",,,"$5,00 (+plies to non-personalized Compass ATlvî/Check Cards) Bank Bags Z+per Locked-*-- **$20.00 Bond Coupon Collection Fee,**-,, *--$5.00 ; Check Charges Fersonalized check orders are debited from your account when your order is received, Personalized check order ctrarges vary by style, check design chosen by cr:stomer, and number of checks ordered. Collection ltem lncoming: Non-Customer toE n¡1 Outgoing: lntemational* -.-*$20,00 +costs Compass Fee for Using Another Bank's ATM*,*".^* -S2.00/transaction Fee,-.-,-* Deposit Correction .¡*.*,,x*,* $2.õO/item Direct Depos'rb '*"N/C Extended Overdraft Service Charge Should your account become oætdra,vn a¡rd conf¡nue wilh a negative belanco for slx (6) consær¡ttve caþndu da¡æ, an utended oærdraft fee of $38 ($42 effec{ive January I, 2009) wfll be ôaryed. b Theßefrer, if your accowrt cs¡linues of $7 per calendar day wfll be assessed beghn¡ng on the sevÊnü until day thhfy (30) of orßrdrdt status or untfl lhe account is broqght b a positive balance wtridrerer occurs firs[ This extended overd¡aftfee is in addition to any NSF fees you may inq.¡r as a result of items being presented against insufficient funds. Gamishments, Levieg Court Orders 75O0 +attorneyfees lnter-Accouni Transfer Fee.,,,.*-.-..".* -*.,."-..."*^$10,00/þansfer Transfers funds from cuslomer-designated account tro corær potential overdrafb in úecking accounL lSFFee lntemalionalTransactions are those transastions usÍng your debit card made outside of the United States. An lntemational Service Fee flSÐ amounting to 1% for ATI¡'ltransac{ions and 3% of üe bansaction amountfor ùansactions made some place other üran an ATlvl will be posted to your account for any lntemationallansaction, even hose in US dollars A full desuilion of the cunency conversion process is contained in this agreement on page 16. Itern Presented for Payment Against lnsutficient Funds (NSÐ NSF Chuge - ftid ltem-- *,,,,-,.,*,,$38.00 NSF Charge - Retumed Jtem -._.-$Í18,00 These chaçes are applied for processing iìems presented for payment against insuflicient funds (NSÐ with a ma.¡ Check Card 10.00 ì ¡ .Ìr I | L_-_- 9l ---__ Reconcíle Statemenl*,* $26OOlhour Research* J25,00/houn $S00/copy orfax Retr:rn of Cancelled Checks-",* *-,,,--.$500/month Returned Deposited lteru-"-,-.".* Þ*¡.¡,,¡r,¡,Ehs,¡Þ* .",",,,"",,$7.00/item Rerun Deposibd ltem*.-** ---.*-.$7.00/item Rolled Coin,- *,--*-$0.10/roll Special Statemenf Stop Payment Rquest*-",, *-$30.00/request Staff-Ass'rsted Cell 1O0/callorrer 5/month Strapped Currency Telephone Transfer Fee,*.,_ -*--*$3.00/fans'fer Temporary Checks (minimum fuo ú.fu) - -.,. t.OO Wire Transfers - lncoming(Customer)* -*æ,ù $12.00 Ma¡rualOutgoing (Customer)- --S20.00 Manuaf Outgoing (Repetitive).- *."**.,,-$18'00 witr Confirmation: Fex./E+nail.- -----*J2300 ManualOuþcing lntemalional: lncoming e 1õ,00 Outgoing Confirmaiion of incoming or or.rtgoing; Phone ,.... ,-,- - -._95,00 'A special statement may include, but not be exclusive to, the following: daily statements, duplicate 1 slabments, hold slatemenls and shtement prinlouts. i Addítional services and/or fee schedules available upon requesl Note: The above noted fees and service charges are not set banlcwide. These prices are driven by the competition in your local market 10 I Welcome to Compass Ban( Member FDIC, Following is your Deposit Accouni Agreement and cartain additional disclosure information, including our Consumer Privacy Disdosure. Please read this information carefully and keep it with your other financial records, Consumer Deposit Accou nt Agreement This Agæement curers any type of deposit amunt (as dsfined bebw) you may hæe wiür us novtr, or in he fr¡fure that ¡s used prlmarlty hr persmal, femlf or hoæehold purposec Q opening your accoun[ by conducüng any bansactbn inrrolving your acount¡ or by malntaining your account afbr receipt of this Agreernent you agrce tb üre brms ln lhis Agreement lhis Agreement tndr¡des not only ftis doa¡ment but also our q¡nent interes{ and sarvice ctrarge sdredulg dlscbsure for inbrest'eaming consumø accounb, and dlsdosure for nonínteresþeaming corrsumer acoorffìts. Thls Agreement also hctudes any n6fl or amended proiis'ors and disctosur€s v€ may provide concernlng pur account Allof üese documenb bgather a¡e a contract betvleen you and us. t. DEFmmOilS The following terms and definltions applywtæn usd in lhis Agrcenrent Sorne terms used in üris Agreement but not detined b€loìfl ha/e tlre rneaning assbned to them ln the Uniform Commerciat Code ín efiecl fn üe stde wherg r¡æ mainbin you¡ account AccountorDopocltAÊcount furylpe of dredrlng sarring+ morìey muk4 or NüÂl accour¡tto which funds msy be deposlted. Tìrne depsib ue a(duded Írryn tris definilion and are not conred by ütis Agreement Accou¡rt O*mer or Owne¡: Each person named in our records as an account ownerwith respect to an account induding any trustee, custodiu¡ guardian, conservator or other representative acting in that capacity, ATMg Automated teller machines. of aüornry.Vl/e res€rrre th€ lþht in our sole d represenüng sn aæount owner does not b in an account atthe ouner's dedr as a tesult of lhe agents capacity as an attome¡in-fact Autfiodzad Slgner, Each person who has signed a signafure card with respectto an account in any attome¡in-fad or other representative capacity, irrcluding any tnrstee, crstodian, guardian, conservator, acting in lhat capaclty. AvallaHc B¡hnca The bdance of fwrds in yor accu,rnt ürat is aralable for bnmedlate wthdnwal. Unllke tre posbd balance üre a¡dlable balsnce reflec{s any holds placed on your accont irrcludlng $e restrictions described in üre R¡rds Ava$âbllity Dsdosum induded wih ü¡is Agreement Your a¿ailable balance may be more or less than the amount of your posted balancq but does not indude any credlt arailable under any Compass Bank Orerdraft Protection Line of Credit pu may have. Bulnæ Deya Alürough rnany of q¡r branch offices are open m Safurdays, fur purposes of his Agreement our businesc dEæ are Mondayürrough Ftiday excluding holidE/s. dormant'rt, for one ysar or more ln üre case of n tlre case of sardngs and money ma¡ket eccounb: unt no conespondence reguding the account has been receiræd by ur an¿ no accou¡rt o¡rner has otrerrrise indicaÞd an lnÞrest ïn he accounl lndMdual Aco unL a single-perty acæunt At e owneds estrte unless tre the account men! order or tre payment of transactions, of Joint Accounb: 1 , A Joint Account wilh righi of zurvivonhip so hal at lhe deaü of an ouner, ownership of he account passes lo the surviving owne(sl and notto the decéased ovme/s estds¡ 2, A Joint Account with right of suruivorship and RO,D. by desþnating one or more beneficiaries of tlte account, so that at the death of ùe last zurvtving owner, ownên¡hip passes to PO.D, beneficiaries and is not part of the lest surviving orne/s estab; or 3. A Joint Aæq¡ít wiftout ffiof suruivonhip, so ürat attre death of any or,rmer, $e deceased owne/s ownership interest passes as partof adeceased owre/s estate, Jolnt Accounts wlll bc pgumed to be witlr rlght of suwivorship (type (l) abov6) unlsss appllcable law rcqulms that you malß an atfirmatiye deslgnation in order for dght of sunivorshlp staùs to appþ. i1 | P.O.O. Account A deposit eccount payable on request b one or mora o'rnrtere durhg üdr llfelime end on tho dss$ ol ür bstsuniv,lg owner, to ona orurte benefciatl€s and mtb rny ornc/s es*. Fúd Bs¡sn€. The balancc of funds in your accotmt bas€d soldy on itvns hd lnyt been posted as I e rnayhaæ. Santce Chrqr¡. A'ny ósrgq feq or simtu am your account ary schedt¡h b r¡s, but not agreÊnrênb yur måyhs¡ÊwiÜr us - Skrglc P!Éy Account An account owned by on o deaÛ of üra æmer of a drde psrty accot¡nt ovr¡tershlp posses ovrnsr lras úo6€n ¡ POD. acoot¡nt Uy *lslgnshng trla or mor¿ in thb b a lagd icarfrbþfor auto ilt##t oris ormor€ orrrer¡astr¡sbc foronsor more hìÊ{cb¡þsu,hcro the rddin$ip b æteblish€d ssû€ûs oil üÊ h$t oüGr üran lhe sums on @dt in the PO.D.eccomù lllc, Our, U+ ComÞ¡¡+ ol ComP¡¡s Aencstra¡eq lrrc. For purposæ erd r or, if the accor¡nt b a mdtipb porV ¡ccounl, arry Bnd d aocount owners, and aü auüoriæd rlgnen. ¿ ACCOlrlffoPERAnors jolntaccornt byúy accomt o\rúncr flauttþrtôd ä* tho anomt wilhdrawn, tegardl€ss of he sq¡rce or owneralüp of ths funds in tha occourrt &ry eccornt orner of e þltt aær¡nt tnay add e naw orrrËr or at¡troùed s¡gner b the accor¡nl \tb mey, but are not rc$Iüed b honaaGqrestÐyolb prerailawÌhdr*nl orbansferIarydpr ac"or¡rtowËror aífprüæd slgnerøto r€rrxlrrg anoüì6r aor¡ttownerorarütoriæd sþnerfruntheæonLAeervice ôarye mey epp! if uo hocorlhe request end you agree lo indemnlfy us and hold us lrarmlece fiom any loss or darnage to pu ø ar¡orc else üat resulls frun o 'honuing üre raques[ You mry be asksd to sþn sdrl¡lirnâl doo¡menb or agrãnenb h connoction siür üå reqJesù r ofaty accaml, wlËher Ð grtt or Unless we agreeoüerwfss in wrttlng oive notic¿ ol the üans{êr. Accourtç are ùensfusbþ only on our recordE \i/e reserue the Qht not b acknowl€dgé or æ@ any stl€mpted ùa¡¡sÍer of an accq¡nt A¡lltodzatþn to Fry a¡rd DoHt llre AmrmL You a¡ürodze us b pey ø wiürdraw funds from the account, wlttout any nolice b you, on he oder of aly account ownar or a¡üurized slgnr ø on lhe order of any peæoul repesenûBliìe of any acæunt owner (eæn if appoirbd h a st¡Þ or cor¡nùy oürcr ttrgn ths oriê in wlúdrnl rminb¡nyoûr from ary of these Fnrsons be execr¡bd m e lmn acoçilabla to te' thst âl atbrneflrthct eccour¡t hm¡ac'tions condncted by üre 2 attorne¡in-fact and the instruciions and orders of the atbmey-in-fact are binding on all eccount owners. lf we accept a power of attomey, we may continue to recognÌze and honor fre authority of üre attomryin-fact until we receive written notice of re'¡ocalon or termination of autrority and have had a reasonable time to act on it Service Chalges; Other Ghalges You acknowledge $ai you have been proriided our cunent schedule of service .h"tgus and, if applicablq interest raþs for yor.¡r account You agree that all service drarges and any interest ntes applicable trc ü¡e aaount may be dranged by us frøn time to time as set forth in Seclion 14. You agrce úrat we rnay debit ftom your account wen lf yolr accotrnt is dormant abândolled, or unclalmed, wittrout ary further notice or dernan4 all senice drages applicable b yorr acounl as well as charges lor the prtrdraeã of óecks, drefts, end oûrer produc'ts or services ordered by yor from or ürmugh us We s¡alt not be llable for lailing to pay any itam presented againstyorr account if he amfable balance is insuflìcjent lo pay the ite& even if üre insutflclent available balance resulb sdely lronr debiting these service and other drargoe lrom yout account Oder of Payment lf trc or more ibms ere pre wê may oerc¡se any righb of set off we nay have was ¡nitiatø at a polnt-of-sale termina[ yur agree trat uæ may charge tre emñnt of he itam to¡tour ectount or place a hotd ori ¡rour account in üe únount resr d by tha meichant imnredately upon auürorization of trd point of-sale bansætion, wen lhor4h we have not lhen ectualty received tìe item for paymmt 3. ACCOUIÍT STAfEMEItftS AND llOTlCEs Perlodic Statement$ lf we have a deliverable address on {lle for you, we will mail or deliver lo you porlodlc sùateme{ìts lor your deposit acount at approximately monthiy íntenab unlæs we speci$b you lhereatbc The account sùaþment will desc¡lbe eadt date of debit or credil For certain types of accounts, or a lacsffile ol those itenrs llsH on tle naæilabh lor any reason fior example when an item is againsl pur accountl lf we comply witr the foregoing provisions ol üris Sectioq you agree that the sHement and iterns all have begn mede available to pu in a reasonable menner, Mailing and Availablllty, Feriod-lc statements, canceled checks (if applicable io your account) and wdtten notíces of dishonor or refum of unpald deposited items, or any other notice or communication, may be malled to you at lhe addless shown in our records or a forwarding address foryou if one is on lile wih the U.S Fost,¿l Seryica llowarer, we rvill not mail any account ínformation to an address that'the U.S. Poslal Service has informed us is fundelÌverable' or othenvise ìnvalid. We use reasonable efforb to rnaintain the fllst staþmen(s) rebmed as undeliverabte fur sixty (60) dayr or sudr longer period of lime as may be requlred by applicable hw, after whidr time we may dispose of the stalernent and original ltams. Ho,ate'¡er, we Enor¡ Un¡uthorlz¡d llan¡acüo¡rs end Fo actmq altenatÍons, unauthorí¡ed stgnafureg foßedæ, redlts tre exceptions. You agree thatyou willcarefrd[ examlne and that we will not be liable to you for any loss lrou suffer related b ürat exception. This means ürat if you do not report exceptions to us within h¡rty (30) days after we send lhe statement or notice to you, we will not reimburse you for any loss you sufferì irnluding, but not limited to, any amounb lost as a resutt of paying any unauûrorized, forged, or allered ibm, or paying any other item altered orforged þ üe same wrongdoer if i13r ri you. Bcept as provided afy er(cePtiofis ceused ry üuta¡a dectonh fund bansbrs ln anycase,you agæe prunpüy b qay to us any amorrt credted debityow aæa¡nt lo oHain pøymentof eny enureos credit Reord Retenüott.Vfswll æÞln anylbm paid bus¡ness da¡rs fiom the trê üì€ item psb b pur account llb (7) years 4 ACCOUT{T lRAllSAC,frO}lS Slgmturee; F¡cslmlle Slgnaüna lile may reJy on eadr sþdure on a signahrre card for the eccountorsr plor aulhothed il signdure or other meclranlcal o accounl you assume he enürc m bears or prporb lo bø a tacslrdle slgnatuæ resembling a signatura on flle with us, regadless of uilrom or by what means the eclual or p,urported signature was affixed b ths item - P¡s-authorlza'd tt€íts.lf you girre infonnalion that in the ordinary aourss ol ils businesl it will your accounts, then arry item initiated by thd person to n you lumi*red may be used impropaly or by an r person for ltems drawn ln his frshion by any un aJüori$ b do so, and v,,e may honor all of [tese type items prøenÞd to rrs lfllre ûansúala li/hen we accept a wire hansbr payrnn{ order lnsùr.¡c1ing paymmt to you or to your account wa will notify you of olr recelpt ol payment by indicating the a¡rnunt in your accornt statem€fiL lf the payment oder does mt specit an accounl we rny deposit tho payment into any account hat you maintain wilh us (nduaing mulüple perty accornbl Your account shtemefit wlll be the onþ nothe of æceipt execded by us. $/e rêsen'€ be rþht b æfusa to acept any payment order. lf trere is erver any inconsisbrtcy or onflict between he accomt number arÉ üre narne of a recifú€rÉ m an insbudbn or payment ordø we msy rely erdusively on lhe account number and bank ldentification nurnber contsr-ned h a payment oder rather than ths name Amendments to a payrrent order must be provid to r.ts at leastlhree business daye prior b orn €xeortion of ûre payment order, !iê nay record ury blephone conrærsatirns or data ùammlsSons that initiate or arnend paynænt ordes The úango rale on a retum payment order shall be the rste in effect at the f¡tæ the rcfum is receiræd" your arailable bahrrce ls insufficient to pay the f of lhe items unpaid may, at our opllon, reù¡m any cause an orerdratt of your accu¡nt Wb nuy rehrm ent b pay lhat ltern, even lf vye previursly hate pemitted orrerdrsfts. You are nol entithd to reþ on any ilnor act by us wiûr respect b your acco.¡nt Our el€cüon to pry orcrdrafb does not eshblish a counse of deallng between you end us or modify $e brms of thls Agree menL You agree tha[ Íl pur arelhble balancs is insufffdent b pây any ttem præãntø agairst yottr accounl yotr prornpfy wiü pay boh our se¡vl¡e dtårge for handling and processlng ürat iþm snd tle amount of ury orcrdraft wilhout furürer notice or demand, I lure io pay'ttrese arrþunb prompüy may owner wlllbeJoinüy and sarenalþ liabþ for ible for beir occr¡rence ln üre alørtyou faff lo ôarges æd we refur yoú ovardrar,rrn eccount to expenseg indudng wihor¡t limiffior\ aüomÊ/s account behg orerd¡aum. trro or more consumer accounb lhat we allory to be 14 pr¡mary accountto pay a coverd item, We will have no obligation to pay any ccvered item if {he combined available bdances in the secondary acrount and primary account at fie lime the covered item is presented to us for paymeni are insufficient to pay fte covered it'em or if the secondary account ls in dormant inactivq or frozen sbtus, ln this situation, if no funds are bansfene{ you will not he assessed any sewice charye ac for üe ùansfer, but your primary sufficient avaílabls balances and overdralts disossed accounts will not affect whelher any elecbonic transaction on requires authorization at the time of the ùansaetion (e.9" point-of-sale, ATlvl and Check Card hansaclions) the autrodzation will be based on the a¿ailable balance in the primary account and not on the available balance in the secondary account regardless of any dæígnation of a secondary accounL Stop Payment Orders. You rnay request us to stop payment on any chedç draft or similar written order or instruction drawn on your account by giving us tha inlormation we may request including ihe account number, ihe item numbe6 the date of the itern, the payee of tre item, and the exact amount of the will seadr for your lÞm by æmputer, so it fs bo efbcltve wc must¡eeeiveuysbp payment ifl conllrm yd¡r orsl stop papnnt ordr in will be cotrdrdveþ Fæurned b be conect twayear paiod and pay urr stop payment seruice ôuge vs¡ifi€d toüe pal/æütãthe avallablo balance ln your oËremiseAny b deæe a sbp payment order unlees requested lo who requested it You agree b lrdernnlff us and hol o$€nsss (nclrdlng attomay's fee) rre may lrrcrr by have stopped paymenl for stop payment orders on peauthorized electronic funds transfers, please refer to üre Becbonic Fund Transfer Disclosure Statement in üis booklet lllegal ïlansacdo¡s. You agree that you will not use your account for any transaction hat ls lllegal in the jurisdiction where ¡lou live, in tre jurisdiction where ttre tansaction is consummabd, or in any other jurisdictft:n affected by the hansactim. You agree that it is your responsibiliiy b determine the legality of eacl of your transaclions in all applicable jurisdictions before entering into the transactjon. You acknowledge and agree that we ha,re no oblígation to monibr, to review or to evaluate üre legalify of tansactions on your account You also agree üat you will not use your account in connec'tion with añy lñtemet or online gambling þri.sdlction\{b reserve üe rightto retum lnbrnet or online gambling ùarsact¡on or a l¡tr,yorl agree to prylorany item thatyou auhorized, ed b be flegat Colledon ¡s olleclion are recolved by us as your agent for yo collection and at only (such as a reùrhed dêpqelted itern or a an item drawn on senice draqe for attsmpüng colledion of the item. ln sltuationswhere ion only, re wül not girn you cash or an offfcial óeck for the iterns until tre items have been paid. We are oblígated only to e,rercis'e ordlnary care in handling and collecäng items delivered to us tor deposit or collection. We shall not be liable forüe misconduct neglect orlorlo€€ ordæùucton of arry item in üendlortrr ürctl, fre or üêreËnt berond our reæanat¡þ cotecüng agenb shdl bs llable forfa¡hrelo collccl agent No colleding agent shdl bc llaHe lolrtDenoeût¡ lf an emutb aþ or rlghb and H$es lø pryment ol any sums m whidt vra mainbin youreccornt Dopocltr ¡f ll¡naq Ager*¡ orllu¡bc¡ A dêpori,t eæepbd lorn orm battalf of a mhor, at our €ntshel beve¡d oænthargh mtooo.ted byün of an UTlriA accofit b irrwocable, wrll b conskleçed sbE ilduþs gonrnlng uniform tatfers Ch€ds arl¡oen¡ont Stmdrd¡. lf acær¡t yotl ûo rcspotstbÞ ftr the conditin of üre ba* of the dreck whar it tB the ü¿ck b uaed dutitg üte óeck colþction procass to reod ttìe ldentiffcaüon ol banks præso¡ng lhc ched<. blost of the back ol ths check is res€rved lø bank use You qrec thet üe endorsarrrenl of he óack must ba cmtained in thc pcyao atüe o tÊ described on the deposit slíp, Errors in posting, addition, subtraction and calculation, whether by you or us, are subjectto correc'tion by us at any time; provided that we may not be obligated to correct ceÈain errors if you fail to notiff us of the exceptions in a timely manner as described in Section 3. You agree to repay us promp{y any amount credited to your account in eno¡ and you authorize us to charge your account or any other account of which you are an account owner, to obtain payment of any erroneoLls payment or credil Stale and Postdated Ched t uPayee's information on the check, including terms such as endorsement requiredi "Nol good for more than $ (amount)l''Void if not paid Ìn (number) daysi and similar language. W'e shall have the righ! but not the obligation, to process any item that is materially incornplete or has been altered, 6. Wm{DRAWAT.S You may withdraw part or all of your accounts available balance. Any account owner or authorized signer of a multiple party account may withdraw all or part of the available balance in lhe account regardless of who deposited the funds into the account We accept no responsibility or obligation, except as required by law, to supervise or review the use of your accounl Restrictions on Withdrawals. Your account may be subject to certain transaction limitationq ufrich are shown ìn the disclosure provided to you at the time you opened your account, Vüe may at any time and without prior notice to you (except where príor notice is required by law) establish or change transaction limitations for any account lf these limitations are exceeded, you will be subjectto any charges in efiect at fie time. ln addition, we may stop paying inierest on an interest-bearing accounl or we may close the account without prior notice to you (except wh.-re prior notice is required by law),We also may require you to provide noiíce before you may withdraw money from certain types of accounts. hold on your account to cover a chim against your recelve ary noticg claim, or court order which we erüs, a$aúÍFnb'levieq înjunctionq or other orders tha form ot rnanner in whid¡ we receive the notice, named party to he noücs claim, or coud order, We will not be responsible for refusing ù: letyou withdraw funds from the account or refusing to pay items presented against your accor¡nt whíle ihe hold is in etfect or after we have paid funds to the source of the claim. ln the event of any contoversywittr respectto your account such as a claim againstfunds in your account or a dispute over who has the right to make withdrawals from the account or who is the or,vner of the funds on deposit in the accounl we may refuse to pay any funds to anyone until we are satisfied that the controversy ís resolved or we may continue to honor the authority of account owners and authorized signers as reflected on our records, We will not be responsible for any damages you may suffer as a result of our refusal to allow you or anyone else to withdraw funds due to the controversy or our allowing any existing owner or authorized signer to continue to conduct transactions on the account during the coniroversy, We also may pay or offer to pay the account balance to a court of appropriate jurisdiction, naming all of the ctaimants to the account as defendants in an interpleader action, You agree to reimburse us for all expenses we incur in an interpleader action, includÌng attorney's fees and cosþ and we may obtain reimbursement of those expenses from your account without notice to you. 7. SUB.ACCOUNTS We may estabfish two 'sub-accountsn on our books for certajn deposit accounts. lf we elect to establish the sub-accounb, it will not affect the oüer terms and conditions of your account or this Agreement the Federal Deposit lnsurance protection afforded on your accoun! the interest (if any) paid on your account the service charges imposed in connectÍon wlth your accounT or the lrutr in Savlngs disclosure given to you, Both of fte sub-accounts will remah your accor¡nb, but wfll be used by us intemall¡, to manage your funds. The first sub-account will quaüfy as snd bo teatsd as a'sâvings deposit account" for the purposes of Federal Reserve Eoard regulations. You auhorize us to lransfer funds between the two sub-accounts consístent with Federal Reserve Board regulaiions. As such, we must advise you that ihe regulations require that we reserve the right to require at least seven days' written notice prior to üe withdrawal or transfer of funds from the 17 I '--l savings sub?ccoufit do not cunently otercise hat rþht wifr respect lo thesa sadngs sub'accounb. ln \túe the evefit we defrennine to orercise that dght vre wil dose he savings silb?ccaùnt end ùansfur all furds back to yotrr onent accot¡nt and cease lhe sub-account agreement Yolr de¡osit urd rrÍlhdrâwal capabfiües ue not dþcted by or dec{on to esiabllsh the sub'account 8. ARBITRAÎIOII By opening ø mainhining the account yul agree hat if a dispute ol ury kind adses under thís Agreement or relates to pur acrount or any barmc{ions imolving your accourt düter yo{l ü we can choose b have that dispute æsohred by binding arbihatft:n Tltl¡ rôib¡tion pudCon llmtts you abilily lo litlgate claims in court and your dght to a iury trlal You should rwiew thls soctlon carefully. You will not have tlre right to participaie as a dass representative or member of any class of claimants for any claim subject to arbitration. fubitration is usually an informal proceedlng in whidr dlsputes are decided by one or more neutral arbitmtors who receive the evidence at a hearing and then issue a binding ruling in the form of an award. You and we understand that discovery and olher procedures in aôiùation may be more limited han discovery in court proceedings and that fre ability to modify, vacate, or appeal an award by an arbitrato(s) is limited. You and we agree, upon written demand made bypu ldisputes, confoversies, and claims, whetrer based on contracl fraud conslifution' common laq equit¡ or any other legal basis or tteory, and Ürat afise from or relate to ihis Agreemen( the accounl any ùansaction invofving the accoun[ or any advertisements, proßnfio¡s, or orel or written statemenb releted to thís Agreernent or lhe iesult lrom this Agreement (hcluding, to the fullest eÐùnt permitted by ap ütird ærlies wtro are no{ parties to this Agreønent or this ertibation prorision} of Ûris egreement (colleslÍvdy, a'Claimr). All pølies retain tre nght to seek relíef in a sma$ c{airm court for dbpubs or dalms withh üre scope of the judsdicti rpt exceed S.l0q000, arry expedited I apply, and a single erbituator shalldecide the and us exceeds $l0O00O a parnlof ürreeeÉütrators r8 shall decide all Claims Eacfi arbitrator; whether or not acting under Expedited Procedures, shall be an member in good standing of the bæfor any stâte in ihe contìnental United States and shall be either: aclively engaged in the practice of law for at least 5 years, or a reäredjudge I You and we agree that tre arbitrato(s): shall limit discovery to rnatters directly relevant to the arbitrated I dispute; shall grant only relief that is based upon and consistent with substantial evidence and applicable clto Claíms asserted by or againstyou ¡ elief gr:anted, úrat you and we continue I I and $all protdde ebrie{wÍtten I ¡ of either psrty and shail make specifrc lindlngs I t arerd lhat e¡ witness feas, upto $50,000, I I of filing a lawsuit ¡ l in the federal court where you [ive. Upon written request by you, we may elecl at our sole discretlon, to pay or i advance some or all of any remainin{ arbitration fees and olher costs, The a¡bikator will decide whether we I I or you ultimately will be responsible for paying any fees or other cosb in connection with the arbitration, Any ¡ arbitration proceedings shall be conducted in the federal judícial distict of your residence. Judgment upon I any award rendered in arbitration may be entered in any court havingþdsdiction. I I lf you or we are seeking io bring a joined, consolidated, or class action and if the portion of this artlitratjon I provision $at prohibits the arbitration of joíned, consolidad, or dass actions is deemed invalid or unenforceable, I then the enäre arbitration provision shall be void and unenforceable. lf any portion of this arbitration provision I other than the prohibition agaìnst the arbitration of joined, consolidated or class actions is deemed inwlid or ; unenforceablq fie remaining portions of this a¡bitntjon provision will remain valid and enforceable This arbiùation I I provis'nn shall survive terminatlon of this Agreement and üre closing of your Account I 9. WA¡VEROFIURYÏRIAI ¡ ¡ This provision limits your right to a jurytrial. You should review this setlion carefully. I lf fi) neither you nor we seek to compel arbitration of any dispute we have related to this Agreernent ¡ I your account or any transactions involving your accou rt, or (ii) sorne or all of the arbilration clause is I I unenforceable and we are in a dispute [n a court of law, then each of us agrees to waive any right we may have to a jury trial to the extent allowable under the laws of the state that govem this Agreement f I O. DORMANT AN D ABAN D OII E D/U T{CLAI M ED ACCOU NTS ¡ Dormant accounts may be subjectto a service charge based on the dormant status. ln the case of i ¡ interest-bearlng accounb ürat become dormaflt rle aho may reduce üre r¡te of interest or cease paying ce charges end in accordance with applicable state accotnrt hat æmains dorman! o r that is othe rwise f lme desoibed bythe laws of the state where we state of your last residence âs shown on our records) ll.SErOFF Yul acknowledgeüat, aæount uty indebbúess or dema¡d on yor¡ wheüre a/rse letôr. The lndebþdness indudeq without llm yoq hold wih us. Yor agree that vre rmy wlthoul regard to üe source o¡ o¡rnerehi thgtüe claim be owed to r¡s by Êll of üre we mry sat otf ury indebted sther sccor¡nt or pmperty in r2^wÄtvERs 13. OTI|ERSERV|CES you have chosen-to receûe any of our other Banking Services offered in connection with your accoun! .lf such as Check Cards, ATM cards, overdraft lines of credit-and PC banking, we may provide thelpecific terms and c,onditions of the additional servíce to you in a separate agreerñènt or disèlosure. ' r9 f 4. ¡N:ÍERESÍ; INTEREST REPOR'IING lnterest will be paid on interest-bearing accounts at the times and at the rates adopted f rom tlme to time by us. On eadl interest payment date, interest will be paid only if, on that date, the ledger balance for the account is equal to oÍ rnore than fre minimum amount required by us in order tor you to receive interest on that account At any time and without prior notice to you (except where príor notice is required by law), we may change these rates and minimum ledger balance amounts or discontinue the payment of interesL The originally effectìve interest rates and required minimum ledger balance amounts are shown on ìhe interest schedule provided to you at üre time you opened your account, and a schedule containìng cunent interest rates and required minimum ledger balance amounts is available to you upon request. lnterest paid to you is reportable to fre lnternal Revenue Se¡vice as having been received by he first account owner shown on the signature card maintained lor the account We may be required to withhold a poräon of your interest payment and remit it to the lrrtemal Revenue Service. 15. CHANGES TO ACCOUNT SÍATUS Convelsion to BuslnæsAccounB. We reserve the right wiü advance noticq to change your consumer account to a business account if we determÍne that it is used for business purposes (meaning thatthe account is not used pimarily for personal, family, or household purposes). Your account may be considered a business account if ii fits into one or more of the following examples: your accoun't has a de credil card drafbl your account has over r $2,500 in cash; or your account has over I ert usiness account, we will provide you with an and conditions for busÍness accounts. Ghanglng Cheddng or Savlngs Plans, lf you should change from one checking or savings plan to another during the statement period, your account will be subjectto the periodic charges and fees and requirements of the new plan forthe entire period, I6. APPLICABLE LATI' Except as otherwise provided by law, fris Agreement and all accounis are governed by the laws of tre state where we maintain your account and applicable federal laws and regufations in etfec't from time to time and are subject to any applicable altomated or other clearinghouse rules and regulations. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of any other provision of this Agreement. For purposes of this Agreemeni, your account will be deemed to be maintained in the state where you opened your account, Your account is considered to have been openedl if you opened your account in personr at lhe brancù office where you opened your account; if you opened your account by mail, at the iocaüon where the mail was received by us; or if you opened your accountelecùonically (including by telephone) and your address is in a state where we have branch offices, in the state of your address at the time you opened your account; or if otherwise, in Alabama. 17. ADD|TIoNAI PROVISIONS Closlng Your Account. Either we or you cen close your account at any lime, for any reason or for no reason, without ttre necessÍþ of prîor wrilten notice, lf we close your accounl we will notify you by rnail or telephone that we have closed your account unless your account has had a zero balance for thirty (30) days or more. We may (but do not have to) mait you a dreck for the availabte balance in your account, or you may píck up a check for the available balance at our offìce.,Wrìtien notìce thai the account has been closed and a check if any, wlll be sent to any address shown on our records for you, or íf the account is a multiple party account to any account owner to whom we elect to smd it, Once we have closed your accounl you agree that we can: : Refuse to honor any checks you have written or any other items which are presented to us for payment after we have closed your account :l Refuse to collect any check you have deposited in your account to collect any check you have deposited to your closed account orto accept any automated deposit to your account, .r Assess any servíce charge oihen¡vise applicable agajnst any remaining balance in your accounl We are not responsÍble to you for any damages you may suffer as a result of your account being closed. [f you attempt to make a deposit to an account we closed due to nonpayment of an overdraft or othenruise, we may collect t¡e deposit and set off your indebtedness io us and coilect a service charge from tte amount you deposited. Any funds in excess of $1O0 wlll be returned to you, SuMval of this Agrcement. All provisions of üris Agreemenl including, but not limited to the arbitration provisions contained in Section I, shall survive fre termination of this Agreement or closure of your account(s) by either party for actions arising in connection with this Agreemerrt or your account(s). Amendments to thisAgreement. We may amend this Agreementfrom time to time upon giving prior notice to you, Amendments of this Agreement may include modifiing and deleting existing provísions and -- -l ,20r I adding new provisions, We agree io provide you noüce of any amendment (except an amendment beriefiting you) at least ürirty (30) days, or a longer period if required by law, before that amendment becomes effective by mailing you notice of the amendment to the last address shovm on our records, by making the notice available with the periodic statement of your account (as applicable), or by posiing notice of the amendment in our offices. We may, but are not required to, give you notice if the amendment will be tro your benefit. lf there is more than one account owner; we will send the notice of amendment to only one of you. By ccniinuing lo maintain your account or obtaining seruices or products relaling to lhls Agreement or your account afterthe arnendment becornes effective, you agree to the amendment of this Agreement, We also may, in our sole discretion, discontinue certain kinds of services, products and accounts, and place restrictions on certain types of accounts, lf we discontinue the kind of account you have, we can transfer your account balance to another type of account In that case, we wifl mail you a notice at least thirty (30) days before the transfer takes effect, By continuíng to maìntain your account after ìhe trarrsfer takes effect, you expressly agree to the change in the kind of account you have. Funds Availability Dlsclosu¡e Our poliry is to make funds that you deposit in your account available on the day of deposit for the payment of checks presented through normal check collect¡on channels. Funds deposited inio your account generally can be withdrawn by other means on the following business day. However, Compass will restrict the wilhdrawal of funds for outgoing wire transfer and the purchase of cashier's or official checks and money orders, based on the availability sclredule listed below. DEFINITIONS To assist you in understanding this policy we have provlded definitíons of tetms commonly used in the banking industry and in this policy. Financial lnstitution¡ A commercial bank, savings bank, savings and loan association, or credit union. Buslness Days: Compass'business days are Monday through Fdday, excluding federal holidays. Business days relate to our ability to collect checks through normal check colleclion channels, Howeveç most Compass Bank branches are open on Saturdays to serve many ol your banking needs. Routing Number: The number on the bottom of checks that identifìes üe location of the financial institution on which the check is drawn, Exhibit A shows where to f ind the routing number for a personai and business check. Þûlt ¡t A PERSONALCHECK BUSINESSCHECK B¡il, Federal Resewe Bank Gities: Cities in whiú the fueral Reserve System offers check processing. Federal ReserveBank fourlh þosition of the routirig number. Federal Reserue graphical area served by a Fãderal Reserve Bank Gty for DETERMINING TH E AVAI LABIIÍTY OF A DEPOSIT before 2O0 Ptr4 or d one of ot¡r autontafud teller ; ! t ficlimes lhat a¡e posted In earfr banldng orflice and I i next bræiness day for the purpôse ol debrm,írfng t I L OR I afbr 7O0 AM lvlonday ürough friday if a I ¡ day or a holiday 0R I d-rplÊyed on thstATMs message screen I I aholldq¡ i AVAILAEIUTY SCHEDUTE FOR WRE TRANSFERS, GASHIER'S OR OIIIER OFFICIAT i I CHECKS AflD IIONEY ORDERS I I This availabiliiy_ schedule appiies when determining the availability assigned to deposited checks for I .., withdrawing such funds in the fòrm of an outgoing wirê transÌer or púrchasl of cashià/s or other official t I t* -.j t?1 J-. -- ffis e¡rd moneyorders The atra¡labillty asslgned to óecks wtrkfr ue depæited depends on tre type of check and fie location oflhe financial lnsüh¡fnn on whlch the ffi 2. funds from üre folbwing deposiÞd drecks are also ila¡lable fur cash withdraual m the first busíness u3c a payable direcüyto you' b. Certified dreiks, cashier's checks and other checks drawn direc{y by a financial insfih¡tion that are pâyaHedile@toyut 3. Chôci€ drawn oñ finardallrstiù¡tjons oußkJe the shb where we malnbin your account ¿nd oubide of F€dsra¡ Reserr¡e Bank Cities, erceptthose ôeds secod buslness day after tha day of your deposiL fl¡rarcial hstÍtt¡tions whoæ rouf ng nurnber befÉns fur cash withdr¿wal on the second hrshess day after the day of deposit 4. Cheds dra,vn on financlal irctlt¡tions whose foulir€ numbers begûn wih any of the follodng sets of nurnbers wlll be arajlåble for c¿sh wtü¡drar¿âl ofl the üird buslræss day afrer he day of your deposlt 0215 0911 0921 1022 1 I 13 0216 09'12 101 1 1023 1122 0812 0913 t012 1031 1 129 0815 0914 1019 1041 I]63 08ô5 0915 1021 12 11 1214 I.oilGER DE I.ATT UAY APPTY ln sorre caseq we will not make ell of tìe funds you depodt by úeck a¡ailaHe fur cash wihdnawal rurdrase of cashie/s oroürer offrcialdretl of hese deposlls rrriü deh¡Bd aailabfllty wlll not be eposlted óock fur ry b the ds!ßnü bushess day afrer üre day of your d€posit under the foüowitg cira.lmstances: u Yourærount has been opened less han 30 days ¡ Vìb b€üev€ a öeck you deposited util not be paid. E You oneday. s You o You ¡ TherÞ is an em€rgÉncl4,suó as a faüure of communlcallons or corpulsr equipmant lf yon wif, need the ftÍds from a depos'lt et a spectflc tims you s!¡o.tld æk us if the fund¡ will be a¿ilable atthattime. Elestrcnic Fund Transfer Disdosure Staternent dbdosed ln he appmpbÞ agreemenb goreming yotr accrunt The separate agreemerìt erd discbsure staternent govemlrq you use of a Compass Orsck Card or Cornpass ATll card hiüelf will be pmvided to you elher at üre lime you open an account or by mail afler you open an accor¡nt and ft wül conbol f trere is , any confflct betnæn ürât perücr¡lar agrearent and dscbsuæ sblerrrent and his Discbsurc Statement l. DERilmOilS: Becùonic Fund Tränsfen Any bansfur of funds, other üran a ùan¡aclion øþinded by I cql --l I r check, dratt or similar peper iutt¡nrnl th¡t b lnlliabd ürrot€h an electonic temln4 bbphonq @mlFrter or magnetic tape to insh¡ct us b debit or credlt an ur¡t Electronic Fund Trarrshrs lndude $¡ô elocfrôníc transactions as direct deposib or witrdrarak of fundq aütoÌnated teller mdrire baflsûers, trss'!Ëß lniüded by telephone, and Check Card lransactions fte-aufiorized Electonic Fund Transfer: An Elecùonic Fund Transfer ihatyou have authorized in advance to recur at substanfidly regular íntervals, for examplg direct deposíts into or withdrawal of funds out of your account 2. YOUR UABILITY: Authorized Transfors: You are liable for all Electronic Fund Transfers that you authorizq whether directly or indirecdy. Unauthodzed Transfers: Tell us at once if you believe yor.rr account has been or may be subjectto unauthorized Electronic Fund Transfers. Telephone us immediately al the le losses to a minimum. You catld lose all the money an overdraft line of credit). ng of the loss or tfieft of your Check Card, ATM any other unauthorized transfers from your account involving your Check Card, ATM card, or other account access dwice, you can lose no more than $50 if Your liability limits for Bectronic R¡nd Transfers in different from your liabilþ limits noted here. Please refer to your agreement and disclosure slatement {or your Compass Check Card forthese limits. Also, if your periodic sccourÌt sbteme¡rt stpws unauthodzad trerisfea end yut DO NOI tell us withh s¡xty (60) days after the stabnrent was maibd to yoq ¡ back any rnoney yot¡ loæ sfbr the uneuborilsd tersh(d if yuu had lor hæpit¡iization) prerænb you fmm or other access device or of any olher suspected Ís Section 2 may be extended for a reasonable perìod. 3. OUR IELEPHOI{E NUMBER AND ADDRESS: lf you believe your accoun(s) has been or will be subject to unauthorized Elecbonic Fund Transfers, CALL; 1-800-266-7277 and make Ìhe appropriate selection from the voice menu, ORWRITE:Compass Bank, Customer Service Deparlment PO. Box 10566, Bírmingham, Alabama 35296. 4. rough R{da¡ordudlrq ho[daya 5. TransÞß hetyou may make depend upon specific acc as üe specific types ol Elecbonic Fund Transfers you 6. CHÂRGES: Excepi as rnay be provided by a specific agreement with us, there is no additjonal charge for making Pre-authorized Electronic Fund Transfers. l- oweveç each Prear¡thorized Eleckonic Fund Transfer will be subject to the regular account seryice charges, if any, in accordance with the terms of the related accounl(s) in effeci from äme to iime. 7. YOUR DOCUMEITAflON OF TRANSFERS: a Receiptsr Each time you make a transaction at our automated teller machine, you will have the opiion to obtain a receipL twentfme (21) ivill no longer be R¡nd Trûsfur,w we rna¡ in our discreüon, notify you hat your stop op payment as requested. Please see yow Ctteck Card or Cornpass ATM card furditftrent aulhorized Electronlc ñtrd Transfur lruoMng trse of 9. OUR FAIIURE IO MAI(E TRAilSFERS: lf ws do not complete a bansfur b or from your account on time or htte conect amount accordlng b olr agreerrent wiür yoq vvs will rdmh¡rse you for any bsses a a res¡lt of our faluæ b act eccordíng na wil not be åablesuú as, butnol I of rurdghtof sst off,¡ou do nothae rì if the úglsfer would excEed lhe available øedit of any overd¡aft line of credit ¡ou rÙBy haq lf ü¡e morny ln yorr acount b beirg held srblrt to legd process or oüter enclrmhance resbictng bansfets b br ft!-m yt t âccor¡nt tf we have rec€ired notice of a dspb as b ghb of pårties b ûp accounb or ürdr credlbrs or r¡rtil resoludon of the dspute;or if circumsbnces abb precaulione D ÞARIlEl9: \\b may discloso infornsüon to h¡rd prües about yurr account and üe bansføs you make as described in our Consumer Rivacf Dkclosure ónhined in hls booklel as a¡nended or modlfied frcm time to tÍma I f . m cAsE oF ERFOR5 0R QU eSfl OIS ABOUr YþUR ELgCfROlllC IRAIISER$ ln Secüon 3 ebore, f you a harsfer on tha s{¡tenrenl or days afbrwe ss,flt you üt€ FIRSI sbtement on wtúch unt numbeq Al'lD a desoipfmn explandion of whyyou bdlenre dollar amount of the suspecbd error lf you lell ng wdtrln bn (10) business daysl,lþ wlll it tskes us to compleb our inræsögalior¡. lf uæ ask written irquiry wiürin 1¿¡ (10) hrsiness &yq we r lf uæ ffnd hat ürere vras no error, we wil send you a rve finish our investigation You may ask br copies of ' Taxpayer ldentlfication Numbers (Badtup Withholding) ' Ttre lntemat Rerysrue Servíce (lRS) ls ruponsible br insudng ürd all pemons pay the coned amount of bderal income bx. ln oder to accomplish his tash they must rnaüt üre income reporbd I businesses ing rq you must podde your coned Tapayer 'I shouU a bank or othar paya of lntcrest not 1806 of interest drrideridé ard oürat pay,nn ! I J I HOW BACKUP WITHHOLDIf{G WORKS Unless you are an exempt recipient (see Exempt Recipieni section) you are subject to backup withholding ifryou fail io furnish us your Taxpayer ldentificalion Number, OR the IRS notifies us lhat you furnished an lncorrect Taxpayer ldentification Number, 0R the IRS notifies us thât you are subject to bac{ THISTYFE OF ÂCOOU}ff: GNíE T}IE SOCIÂL 5ECURÎTY IIUillBER OF: 1, An individual account The individual 2. Two or more individuals The aciual owner of the account, This person's account) name should be listed first on the account 3 Husband and wife The first person listed on the account account) 4, Custodian account of a minor The minor (Uniform Transferto Minors Act) | 5, Adult and minor The adult or, if the minor is'lhe only account) confibutor,lhe minor 6. Account in lhe name of a guardian or The ward, minor, or incompetent person committee for ä designateã ward, mino6 or 7a The usual revocable savinç trust account The grantor-trustee ts also trustee) 7.b. So-called ùust account that is noi a legal or The actual owner valid trust under State law 8. A valid trust or estate Legal entity (Do not furnish the idenäfying number of the personal representative or trustee unless the legal entity äself is not designated in the account tiüe.) umbcr. Ii'/hen you get a number, submit a nevr form to us. spedficaþ exempbd fiorr backup wlürholding on ALL payarenb lnchrde ñ A financial insiitution, ü tax ual retirement plan, s ncy çl bía, or any subdivision or inslrumentality Itl0lE Sesüonll,l06(aXlXC)ollhelnternal Revern¡eCodebæicalþreryiresUa*r¡pu¡tt¡¡otørgil¡outrwa dividend paymenb yuu rece'wed or il yon faled to file e br rãtum rvlr'r:lr wa.dd have nd paymenb. Tho IRS wtl noli! you befom th€ry instruct r.r to witlrhold for dther of 25 H Compass lnsurance Agency, lnc" a Compass Modgage Corporation + Capital fnvestment Counsel, lnc. ?,ir St Johns lnvesiment Management Company (also doing business as St Johns Wedfr Management) æ Siavis, Margolís Advisory Seryices, lnc. This disclosure stalement hkes the place of al[ previous notices or statements of the abovelísted companles, or tireir predecessor companies, involving privacy and use of consumer information and is subject to change at any time. This disclosure statement is provided under the federal Gramm-Leach-Bliley and Fair Credit Reporting Acis. Compass afÍilíates also will comply with any applicable staie laws that impose additional requirements relating to privacy and use of consumer irrforrnation, cou.Ecftoil oF I NFoRMAIIoN We collect, retain, and use informaiion about you when we reasonably believe ttrat it will help conduct our business or provide products, seruiceq and other opportunities to you. For example, rve use your information to protect and administer records, accounþ and fundsi to comply with certain laws and regulations;to help us design and improve our products and services¡ and to understand your financial needs so we can provide you wiih quality products and superior service, lnformatìon about you is collected from several sourcesr such as: q information you provide in applications for products and services and through olher means (for example assets, income, and debts); s information about your transactions and experiences with us and our affiliates (for exarnple: account balarces, account activity and usagg and payment h¡story); a inforrnation we receive from consumer reporting agencies and other outside sources (for exampler creditworthiness, credít history, and ernployment verification); and s informal'ron we gather at your request or with your consent from third partÍes (for example: to assist us wiür servicing your accoun(s), providing special services to you, or preparing offers for other products). OUR IIIFORMAIION.SHARING PRACTICES wlTH OT'TsIDE PARNES We may disclose customer information we colle{ as described above in'Collection of lnformationi to nonaffiliated third parties as prmitted by law. For example, we may dkclose customer information about you to credit reporting agenc'es, in response to a subpoena or court ordeq as required by certain federal and state laws, to help complete a transaction iniiiated by yoq and pursuant to your request or authorization. We also may disclose customer informalion we collect to companies lhat perform services or functions on our behalf - - such as account processing, check printing, mukeüng seryices¡ and consulting seruices and to other financial institutions with which we haveþint marketing agreements - such as banks, insurance provÌders, commercial or consu¡'ner leasing companies, securities brokers or dealers, and investment companies Joint marketing agreements with otrerfinancial instituiîons allow us to bring information to you aboutfinancial products and services that are different from those we provide, We require our service providers and those with whìch we joíntly market financial products or services to adhere to confidentiality standards gwernÌng the privacy of your ínformation, These companies may use and disclose the information we provide to'them only for üre purposes for which it is provided or as otherwise permitted by law. We do not sell your customer information to outside marketers to allow thern to independenüy sollcit you for a prcduct unless we first askyour permisslon to send your lnformation OUR INFORMANON.SHARIIIG PRÁCÍICES WITHIN THE COMPASS FAMITY OF COMPANIES u lnformation About Our Experiences and Transactions With You The Compass family of companies consists of financial service providers such as banks, insurance d oûrer financial services companies thetwork s By shuing your informaüon wih sur afûllateg we ïlb arc pemitted by law lo shue wlth our eflIllateg you and your occounb. Thb type of infurmaüon nt balances, accountta¡sadÍons and payment ac{on and ogerlence information b proride b evdush and lmprwe edsting pfoducts pment unauüroriæd sooess toyour lnformdbn pago[ $en our afñll¡tes wül not u¡e any lnformaüon re shtm f,rlü füem about your üansüüoils and epedancas wtür u¡ to malce s marketing sollcftadon to you Thls wil not praart us from sharirig lhls type of ffiorrnsüon wiür tlnm, but will restrict thelr use of lhat lnfonration, Thie resùicüor will not Epdy in ce¡biñ cin¡msbrces, sudr as if you cunenÙy do h.¡elness 'á,ih onÊ of ow afffllates or ll yo,tl ask to reæfue informallm or offers frorn ürern -1 ø A føeign govemmenl a polilical srbdivision of a foreigrt governmenl or any egency or instrumentality thereof, i u An lnternational organizalion or eny agency or instrumentality thereof. I .E A deafer in seatrities or commodlties registered in the U,S, or a possesslon of the U,S. c A real estate inveshnentbust sr A comrnon trust fund operaúad by a benk under Sectton 684(a). ;r An exempt chaÉtable remainder tud or a nonexempt trust described in Section qga7(axl). s An entÌty registered at all times unde¡ the lnræsbnent Compary Act of 1940, n Afureþncetfdbsnkofis,ra Paymenb of divirhnds md paùonage dividends not generdy sr.Éþct to backup wtürholding irrclude the following: a Pa¡nenb to nonresident alims sbject b withholding under Section 1441. n Pqments to parhershþ not engaged in a tade or buslness in the U.S, and which haie at least one nonresid€nt Parhsr. a Paymenb of patronaç dividends where üe armunt ææhod b not paid h money, o P¿yments made by certa¡n foeign organhalions Papcnb of interest not generaly urbJect b backup wiürholdlng lnclude he folloring: E Paymenb of lnterest on obfuations lssued by lndividuals. 'ls Nots Yil may be rubJect to backup wiürholding if thb rerÊst ls $600 or drore and peH ln lhe cq¡rse of the paye/s trade or bn¡siness and you hare not pnided your conect Tarpayer ldentificalion Number lo he payer. Er Payrnenb of tax+rempt lnteæst (induding exemptinterest dMdends under Sec'tbn 852). u Fayments descriH in Secticn 6069(bX05) to nonresldqìt al¡ens n Fbymenb on hx-free covenant bon& under Section 1451. a Paymenb made by cerbin foreign organizations. lf pu are uncertain whetlrer you qualily as an exempt recipienl call your accounhnt or the lntemal Rsænue SeMce To avoid possible witrhddng¡ a PENÄTÌIE5 l. Penatry for Fallure to Furnlsh Tarçayer ldentfflcalion l{umben lf you fail to furnish your taxpayer identification number to a payeri you are subiect to a penalty of $50 for each such failure unless your Tailure is due to reasonable cause and notto willful neglect 2. Failuru to Report Corteln Dlt ldond and lnterËt Prymenls: lf yoo failb includeany portbn of an ùrcJudih¡ls pr¡nøt for lnhrest dividends, or pabonage dividends in gros in@ne, such failure wil be treated as being due to negllgence and wlll be subject to a penalty of 596 on any portion of an underpayment atùibutable b ürat fallure unless there b dear and convincing e/idence b üe contrary. 3. CMI Panal$ for Fo¡se lnformaüon ltlüt Rerpocf to W¡tlthoHlng: lf you make a false stalement with no reasonable basis trat results in no imposition of backup withholding, you are subJect to a penalty of $500. 4. Crlmlnal Penalty for Falsifying lnformation: Falsitying certificaiions or affirmations may subject you to criminal penalties íncfuding fines and/or imprisonment lhe information of our individual customers household purposes, This disclosure is made I 26 .3 lnlbmetlon lhd b llot Âbout Our Erperlencos and lÌ¡neacdons Wtù You $/e also may shue carlg¡n infornEllon wlüt our affillsÞskr üre Compass larnily lhat b consldered credit ihformglion h¡t is not lnformaüon about our o+rn l¡ansactions and experiences ffi you Exanples of ürls Vpe of informalion irdude: ¡ infuimaton ln an appli:ation, sudl as your lncomq madtal shrs arrd assab; r infolÍrstion we obbin to v€dfy repescnt¡fnm mde ry yorJ, sudr as your opon lines of c¡edit¡ a infmnalbn we obbht from a consumer credll reporl sudr as yur credit scor¿ end cedit Hsbry and Ð Infonrdion we obbin fiom a peaon or comFny regadrng Íts employment crodit or olhor rehüonship wiür yor¡, sudr as yor¡r amfloyment histøy. Ourefffrales rnay us€ lhis lnformaliott h delemlnlg pur elþibüty forcorÌilmer loariq brokerege s€rviæs, lrsurancq and similar products and s€rvices theyoffec lf yq¡ d¡oo¡ato llmtt meddlng (g.e bü bolfl), tltcn wc will not Crare eny o,t thb typo of ædlt for lnlor¡mtbn wltl¡ our afllll¡bs b u¡s tor ædt ¡rpoca+ s¡ö æ dotsnnhl¡¡ your cfslUllU fol or ¡ollctüng Ioü lbÌ üdr prodr¡tls or scnilcc* Thb will prorent r.rs from shalng yurr credt hrfom¡tion wilh our afflliates otcept fur oürar usês, sJdr as pøfondngtechnlcal oroperaüonal supportsenrices ExsnplË of bônlcd and op€ratmd supportseMcss indude preperalion of accountsblemenb, dah pocesitq ssrvicss, and undenfütng scrvicas Your Gholce to Umlt tladreüng You may limit our affiliates from marketing their products or services to you based on informalion that we share with Srem, sudr as your income, your account history with us, and your credit score, To llmlttñæe marltoüng oflsls call us toll-lns !t f -000-275.7219. ¡¡ lhlng¡ You $rouH lG¡ot ÂËoüû tcdng A Ctolæ to tmt U.d(oü¡f By Ar Atnileb¡ A¡ long !¡ yor¡ rtm¡h s cutlonnr, þr onU hry¡ b tell ¡¡s olro b llmlt o¡drdrg bt out âfñllrba bæ€d oa lnfontt¡üon rc dnn wltb tfial lf you hare ôosen b 'opt ouf of our sÌrarhg credit information with affiüates in past years æd have conünued to be a ct¡sbmer, yor'opt ouf will nov also llmit mod SECURITY OF YOUR IT¡FORMANOI Our cornmitmerrt to the privacy of your information includes mdnhining üre secudty of your informalion. V*le use physical, electronQ and procedural safeguards to help prevent unar¡thorìzed access to crstomer information. TÂþ paiodically test and updab our safeguards to help ensure üre prolection and integrity of our custorner information. We bain and regularly educate our employees about *re importance of maintaining the confidentÌality of customer information and tre proper handling of customer informalion. All of our employees are governed by a code of conducl that authorizes access to customer informaüon for business purposes only and lncludes sfict shndards for keeping yo.rr informalíon confidential, IIIA! ilTAI I{I NG ACCURATE IN FORMAN Oil Our pocedurts heþ asa,ra lhatyorrftrandal inÍormation is accr¡¡atg cunent artd complste. You Sy ut important part in helping us mdnbi'n acq¡rEte recods by ahtE/s rwleuring yatr accor¡nt slaþnrcnts, notioes, payment coupons, h æporling and drer lnfomation ürat we prwide you You also mry hare aacess b informatbn abortyour accotn(s) t¡rcr¡gh our customar service deparbnent Bn4 if apdicable, our .-41_. Web site lf you arer believe any information we have about you is not complete or corred, please call us or followthe insln¡ctions on your account statemenl if any. , FORMERCUSÍOMERS Our pollcles and practices for the collection and disclosure of information about individual customers contained in üris Consumer Pnvacy Disclosure apply to bolh cunent and former æstomers. oilur{E B,uü{ilG PR¡vAcY ltb ar$oy ptoæn procesres and tedrnologies lo protect [te pivacy and secudty of yær informalion wherì you bank mllre wiür us, such es filam[s, encrypüør tedrniça+ ard a¡ûrenücation procedures lf you vìsit our Web sþ we may put a 'cookie' ø simllar {fle on your had drfi/B b facil¡tâb navþaüon and personalhe your experience S using cookies, r¡€ can collect teónlcel and navigatonal infurmaüon, zudt as oomf,¡ter Uowsertype, lntemet probcol nbrrneüon ald rrùatch trât wiür pages visr'ted and tkne speît on our dte. Wtten you use our online banking serviceq we dæ may use irformatlon in üre cookje or slmllar flle lo mahh the lntemet bro$rser and æmputer yûu use wiür ¡,urr onfirn accqrfit for s€cüriþ purpoees \n& do not knowlngly collecù mahiaiq or rse p€rsond lnfonmlion frrom our llþb sltes abot t úlldren underthe age of 13. fur mote hfomalbn about o¡r online securif Sacüces, please vi$t our Web dle aÈ',rlww.compassbank¡orn lmportant lnformation AboutYour Chedring Account (Ghed< 21) Substitute Chedts and Your Rlghts \Mrat is a substitute check? fast€ to rcplace oríginal drecks wilh'subsl¡tule ln I lar adbhüy reducrd image of he front and front rk sHes TÌr¡s is a legal copy of ywr dtedc You can r use it the Eeme way you woub use lhe otþinat chedc'You may use a subtlifuta {eck as goof of paytnent \ J'u{frl}tffffiffi* that yur rcceíw bactt from us may be substitute dræka Thís notice describes . rights you hûê \ryhen you raceirre subsüfute ùecks from us. The dghb ln trls notice do not apply to original , checks or to elecùonic de$b b your accowrL Howeveç you hare righb under other lats with respect to those hansactions. hat allows you b request a refund for losses qatrple the if yotr think that we witMrenp I oney frorn yor.¡r acc¡unt more lhan once fol üre same óeck} Ihe boses pu may atÞmpt to recorer under ú\þ prúedure may ¡ndude the amanûtth8t was_wihdrawn from your aæount and bes ürat wae d'Ìarged as a rssult of the wlthdrawat (for example, NSF fees). lhe amounl of your refund under this procedure is limited to üre amount of your loss or the amount of tre substitute chec-k, whichever is less. You also are entÍtled to interest on the amount of your refund if your account is an interest{earing account lf your loss exceeds the amount of the subsìitute checlç you may be able to recover additional amounb under oûrer lawc ff you use tris procedure, you may receive a refund of up to $2,500 or the amount of the substitute check, whichever is lesg (plus interesl if your account eams interest) within 10 business days after we received your cfaim and the remainder of your refund þlus interest if your acrount eams interest) not later than ,15 calendar days atter we received your clalnr" We may reverse the refund any ¡nbrest on the refund) if we later are able to demonstrate that the substiiute check was conectly tro your account for a u A descripüon of why you have suffered a loss ({or example, you ttrink the amount withdrawn wæi incorrest); 29 ! An astmete of the amount of lour loss; r An explanation of why tlre subst'¡tr¡b óeck yut received is insr¡fficient b confirm frat you sr¡flered ' a læq and r A copy ol ùe subslÍtute óeck or the follovring ínfurmaüon to @ us idenlÍty ùe subslih¡te dredc üE ched< numbet üre name of the person to whom ' u wrote the dreck and tfie amount of the ôedt. 30 Vlsa G'hed< Card Agreement and Disdosure Statement Thls Agreement and sign ftis Agreement unauüqiæd rseof Card, you have agreed b the hrns of thís Agreernøt it for futr:re reference. t. DEF|NlTlOl,lS: .s ATM - refers to automated teller machines. ,t or savings accounts that ;2 ParticiPaie, which ma¡r indude the INTERUNK PUJ$ $iAR, and Visa n any changes to the networks in which we participate. ül PIN - refers to the personal identifcation number required for certain uses of your Card. u POS Transaction - iefers to a þoint-of=ale" Card transaction for tre purchase of goods or services conducted with a PlN. :ã Primary Checking Account - refers to your Compass Bank checking account described in Section 8- as follows. s Unadhortæd the account n auüority lo in usa ifr (Ð pu ber for your Card, or you¡ PlN, srsfl lf notified w ftd tans'lers bY üat the ùansfur. a ucted xdthoùt a PIN at either a merdn¡fs brm¡oal connected to or a financial institution participaling in the Visa Network. u We, us and our - referto Compass Bank 'il You, your and yours - refer to each owner of a Deposit Account, 2. USE OF YOUR CARD: Each transaction on your Card is cpnsidered an "item" under the Deposit Accounl agreement applicable to that transaction, and wíll be subject to the terms of that agreement, To protectthe use of your Card, you will be govided wit r a PlN, which must be used on all ATM Transactions and POS Transactions. You should not disclose your PIN to anyone. lf the security or confidentialiÇ of your PIN is compromised, you should notify us at once by calling I -800-239-5175. Your Card will allow you to conduct: El ATM Transactions: Your Card may be used with a PIN: @Pa5sATM,tomakãcashwithdrawalsfromeachDepositAccoun(s)andtotransferfunds between multiple Deposit Accounts; - At any ATM connected to the Networks, to make cash withdrawals directly from your Primary Checking Account; .* - To make deposits to each Oeposii Account at any Compass ATM, POSTransactions; Your Cæd may be used with a PIN to access funds in your Primary thecking Ããcounäo!¡rchãse goods or sérvices and to obtain cash at any merchantthat partiôipates in the lnterlink or Siar Networks. n Visa Traosactions; Your Card also may be used without a PIN to access funds in your Primary Checking Account to purchase goods or services at any merchant that accepts Visa debitcards, and to make cash withdrawals frorn the tellers at ürose banks and oiher financial institutions that participate in the Vìsa Network and accept Visa debit cards, POS Transact'lons and Visa Transactions are accepted solely at the option of individual business establishments, banks and other fnancial institut'¡ons, and you agree ihat we wîll not be liable to you for refusal by any such business, bank or financial institution to honorthe Card. mey s.llow one or more A'[Tri lransacüons, t Accourtt has an avallable balance üat is rep res e ntatíon that you h ave s ufri c ient run d s i n yo u,. 0"ffiff åffi *trr:? ffi iliilff "i 3. mËÂUTHoRIzED RECURRING TRANSFERS; SÍOPPING PAYMET{Í Ot{ TRANSAGÍIONS; recurring payments shto stop one or more biller d-lrecty. lf üre merchasUbfller fails to stop the yorl wbh b strcp a partiorlar paymenl pu nurst nolify nt from whkf¡ this pepsnf b medc h time lor us to the paynerrt ¡¡ ¡cheduled b be mado. ìbur Cüú nta ll we cancelpurCard in orderb stop rr¡y ovided in the applicablc Deposit Account agreement + HqÐS FOf, A'TüORIZED TRAilSâfÍIOTIS: üre dste we authorized that üansactioo The release of the FOS hold will bc in he form of a øedit b yorr Deposit Account for the amount of the hold, Osdlte ûor rete¡¡sd PO8 holds and prynren¡ tor Card tr¡n¡actlon¡ ¡tt poûtÐdrcaenbly b ¡our AæunT ¡nd tlrc ordlt for eny petüotler POS hokl lr nof usod to gey üc p.füail.rtnn¡¡cüon fbr rhidt tlto hold rr¡ pl¡c¡d. rlll nduca the ¡vrll¡bþ b¡lgnca ln yorr Do svcnt tño av¡ll¡ble þal¡ncc ln your Dcpoelt Aæüfit b lns¡¡ffidfit to pay tHns posttd ùo yoor Amuntr wo mcy ¡¡ssrrû ¡nd yq¡ ¡gfÊo to Þrt rlrlce dulge üor cdr lbm (¡ncùd¡ng r Earrcüoo oo your Gerd) púr!.nt¡d egrlnst lruullident fündt (rn 'llSF ftdl. Ao lttstfidcnt anll¡ble b¡l¡nca ln tour Deposit Aænnt ' mry ræult ln wf¡ole or ln pcrt lro¡n r POS holrl or lrom ilSF fc.l cftsryed !o that Âccount Under the Visa rules goræming Cald trursac{on1 authorfzdion onty forthe acfual amout of aùsnssclion urant may rcquest auüufaûm for a 960 order drlnks tohllng $10, üra a:tabÌlshment might palion thdyou wdlplæe add¡tionsl orders. &€n though üris pactÈe ruy not be pemitted by the Vlsa rules, $re câr¡nd rtalc his detennindim at üre time we recaive thc aulhorizdion rcquest ¡ Card terminde used for þay at lhe pump'gasollne purdrases will ched< for authodælion belore üe amornt of any prchase ls detemlned Auütodzafpn wlll be giron only lf he anlhble bahnco in yurr Ospæit Accorrnt eçals or exceeds e cerhin desigmbd anour¡t whiô may very Irnøtg merúanb ard naþd amor¡nt (not lhê amount ol e available balance ln your authodzalixrs that mry erceed by$cVisa ffi* rules.Bcceu¡s e¡dr POS holtl nduæ¡ thc ayellaþb þslane ln your DcpoCt Accountr sny a¡ttroltrrüon nqmct by a mtrû.Ít Íor rn rmount fü¡t erocd¡ tìc unü¡nt d thc ecü¡al tnnsecüon mat c.r¡¡t you b hrve intütfrdmtlund¡ b p.y lltm¡ poebd b yotn Dcposlt Account, ¡nd met øuto you b lncur Î{SF feos br tñosa ibmr õ. lU"EG,At lRA¡lSAgflOl{S: You rgree thøt yotr wtf not use yoor Card for ury transacton ürat is illcgal in thc juisdÊbn whete pu Èvq in the judtdicüm uilrere üe bansæl¡on ís consurrmab{ or ¡n any otherlurßdlcüon affected by he üusrytron Yo.r qree that it is your responribilrty to determino ùre þaiity of cach ùansaction în alt appllceble luriadìc{ons befae enterlng lnto such lransaction Dlsplay of the Visa evatuate the legsfity of your Card tnnsact¡ons. You J¿ with any lntemet or onlina gambting hansaction or lottery ticket purctrase, whether or not he sane is legal in any applicable Jurisdlction, 1¡1þ æserrc lhe right to decline any transaction ürat wg in our sole discrelion, believe is an illegal transection, an lnte¡net or onllne gambllng üansac{ion. lottery tlcket purdrass or a high- risk transaclion. To the lullesl extent permttbd by laq you agree to pay for any Card transacliør lhal you auüroriæd, even lf bat transacüon ls detemlnd lo be lllegal, 6. IIMÍTAT¡ONS ON FREOUENCIIAND DOIIAR AMOUNT OFTRANSACTIONS: I Allhough you may have several deposit accounts wiü us, you can use your Card to access only those Deposit Accounts that we, at your request, have set up for use wiih your Card. To add or rémove Deposit Accounts, please contac't us, ¡r lt your DeposÍt Accounts include a savíngs or money market deposit account federal law permìis you to have no more üran a total of three (3) POS Transactions and Visa Transactions per month from sudl an account as dessibed ln he agæanentfor these Deposit Accounts n fur security reasons, there are resbiclions imposed on your Cerd ürat may limit your abilþ b uss your Card. Some of ürese restrlctionq whidr are designed to detect and prorent urauú¡orized use of ¡our Card, cannol be disctosed Unless you request or we notifr you olherwlse, we may phce the followíng daily limitations on üìe wihdrawsls and ohertansec{ions you may perform: '¡ at is less tì- .r an herdaily ATIll and POS limits. The daily period to wtr'xfi these limlHims apply shall commence al l2O0 mUnight on each day and end at 12:00 midnight on the trlorirg day. We ru add to, remore from or oüen¡vÍse drarqe our limitstions at any lime and wi$out nothe to pu Eecause of the ffmltations imposed by some non-Compass ATlvls and in the ervent of equipment fallure or una,¡allablliþ, you may not be able lo,withdrslv or to accêss funds a/efl ho4h you haw notexc¡eded tlesellmihti Alldeposils made ürough a Compass ATM are subject to vedfrcation and proof, and ars accepted in accordanc¡ with üre þrms oí the agreement for tre Deposit Account and our Funds Avalabillty Fohcy. 7. FEES FOR USE OF lHE GARD: Oürer than the lnternational Service Fee described in tre nexi paragraph we do nd charge arry fees for the r¡se or Ínitd lssuarics of the Car4 br¡t eaú Deposit Account is subiect to any sanrlce drarges or hes oürerwise apdica b hat Acco,¡nt lf you reqræst and we issue you a replacement Car4 we may drage you üre fee rcvided ln or¡r fee schedula We wiil not cùargp yur a fee to use pur Card at a Compass ATM, but operetoß of oher ATMs and casHbpsnsing derviceq their l.letworks, and merchsnb may dnrge you a fee. Some csshilspens{ng devlces appear to be ATtr4s, but actually may use yuur Cand multiple times Et one of ü¡ese as POS Transacüor¡s end othea as ATM at we rnay make tc yor, ATlvl fe¿s do not indude he ed lî conneclion wiûr ary POS Transaction. n ürat you make using ¡our Card ln a foreign currency and any þansect'rm made using pur Card outside of lhe United States of Amerba, even if that bansactoñ ís mede ín U.S dollars. lf you make a ùansaction in a anrrency other than U,S. dolla¡s, Vsa will conrært ttre arnou¡tof lhat bansaclion into U.S. dollars eccor at thst tima The axchange rate used to conrært the of m essing data may differ from he The amount (in US dollars) of any sacllon ls likely to ditfer from the amount (in US rateg whidr may vary dally. We mey charye you an 'lSF) ecn¡el to one ærcent (lqô) oî the US dollar an ATI/ ãnd ürree iercant (3016) of he U.S dollar at some place ofier üran an ATM,'wtreher that bsnsaclion wes originally made in US dotlan o¡was made in airothsr currency and cor¡verled to US. doliars by Visa ln either cæe, the lnternational SeMce Fee will be calculated oî t¡e U,S. dollar amount provided to us by Visa and will be charged to lhe same Account to which the transaction is posted atihe same lime the lntemational Transaction posb to ürat Account The same conversion proces's and fee may spply if any lnternational rransaction is reversed or credited back to your Account. 8. e time you requested your Card, you designaled ihe ch sa Transac'tions on your Card woi.¡ld be $sted, and j thi ecking Account in t*ris Agreement You may request I us all times at least one of your Deposit Acc-ounls must :?? be a Contpass Bank dleckltB account lf your Prfinary Checklrq Account is dosed and you hare no other checkhg account üed to your Card hefi your use of tho Card wlll be terminalad automaticall¡ evan lf you 'hare other Deposit Accounts üed to the Cad. lf you an( atthe time your Rimuy Cteckjng Accourt b closed accormt as your nev'r Prlmrry Checklng Ascou¡g checkhg accounb as your new Rimary ChecHng Aocount 9. POSiltlG OF DEPO!¡ÍTS: Esdt Aïft| deposit made by the ATM's posted cr¡tofffme on any business day we are op€n will be posÞd to your Depostt Account on the date of rccdd¡othendse,lt wlll be posted on our followlng buslness day.lhe cutoff ümes for deposits may diffu from cubff limes for olher lransastions. 10. OUR BUSINESS DAYS: Our br¡siness days are Monday trrough Friday, excluding holidays. IRAIISÁCÍ| u will receive or be given hansa frrthat so will receive a periodic shor you ûre made wiitr your Card durkrg tre covered pãio¿ tf during a pulicular monür or months you dÍd not have any Card hansactions, you may receiræ a quarterly account sbÞnìeflt r¿YOUR RESPOl{SlBltlTY FOR IRAflSACnOilS USll{G THE GARD: Subject to üe limitaüons described in Section l4 below, you agree that you are responsible for all iransactions using the Cød. la YOUR GARD lS tOSü, STlOtEll OR SUBIECÍ TO AflY UTAUTHORIZED USE: Yo¡ agrea b 35296. Teþhodng is lhe best way to kæp your i 14. YOUR LIABILITY FOR UNAUIHORIZED TRA}ISACÍIONS USING THE CARD OR CARD ACCOUIIT NUMBER: Contact us AT ONCE if you believe that your Card has been lost, stolen or subject to unaufioriæd lose allthe money in your Deposit Accounb þlus your Card has been lost stolen or subject atyou did not make and you D0 NOT tellus witrln spccified ln thûs paregraph may be extanded fu¡ a IíOUR UABIIITYFOR FAILURETO MAKEIRAT{SFERS: lf we do notcompleteatransferto or 'iro nt according to our agreement with you, we will be fa'lure. However, there are some exceplions wh following: E ll hrough no fault of our owfii you do not have enough funds in your DeposÌt Account to make üre transfe¡; a lf the transfer would exceed the svailable credit of any overdraft line of credit you may have; s lf your Deposit Account Ìs subject to legal process or oürer encumbrance restricting tansfurs to or from your Accounf, 34 I lf lhere ls a dispute about ownership øf your Deposit Account and we place a hold on üre Account unlil üre dispute ís resolved; r lf the ATM lerminal has insufficient cash b complete the transaction; r H the lerminal, system or ofrer equipment was not working propaly and you kner¿v about the malfunction when you started üre lransfenor r lf, dgpita reasonable precautions taken by us, circtmshnces beyond our contol prerænttùe bansfer from being conpleted. 1S, DISCIOSURE OF INFORilAnOil IO THIRD PARTIES: We may dísclose information to üird partos about pur Depodt Account end ül Dlsdosu¡q whidr rw maydtange, amand CompassBanlCs Conaumer Ê¡vaq, Disclosufê in conn e plwtäeO a cogy of any updstË to ihst Dlsclosre. \6u ako mry oblain I oopy at my ol our branchec. 1 7. I }I CASE OF ER RO RS OR q' ES]IOil S ABOUT YU¡ R E |.ECTROT IC IñAfl SÞ:ERI3: Teiephone us d t €00-2Í194{15'/ or wrÍts to trru?rgham Aebsma 35æq as soon âs yot¡ need more lnlonngtion about ahansfur llsûed ütrn rixty (00) days dterwe sentyouthe FlRSÍstabtnetd on t 1. Teil us ycur nfiìe and the account rrunber for each D€Pos¡l Account 2 QescilÉe ft€ €rror or the transfer you are unsure âboul and expbht as dealy as you can wlry you believe ürere is an error or why you need more information' 3. Tdl r¡E the dolhr amourt of üre slÉtp€cbd €ror. (10) bus¡ness days herfiom yorl, and wiü (,15) calerdsdays dap, fore¡gn{nitiated HtËötr"',*1",i3?"iu 'ls dayul lor the arnrnt yw thlnk br enoti so that yor witl trave h€ use of lhe monry during üre üíre lt takes us b @mpleile our inuestlgafon lf we adt yot to put pur lnquiry in vøiting and we do nd ßcsirß sr¡dr wrÍtten inq¡iry withln þfl (10) h¡sf¡ess days, vúe may not provisímalþ recredtyour Depostt Account The lime pedods prwided aboe may be ðdÊn&d as fol[ows: r For enors irwobing Deposit Accounts open less ihan $irty (30) calendar dap, POS Transac'lionq and foreign-initiated transactions, we may take up to ninety (90) days to inveslÍgate your complaint or inquiry. r For new Accounts, rvÊ mry bke up to twenty (20) days lo provisionally rracredit your Deposit Account We willtell you the rceulb of our lnveslþaüør rin lhree (3) business days of conrplatkrg our investigation, tf we flnd ütd the¡e was no eßor, we wlll send you a written explanation Yru may ask for copies of the documents that we used in our investigation. 18. CHANGES TO AllD TERMINAflON OF THIS AGREEMEITIT: We may change the terms of this Agreement at ar¡y üme by gMng yor nolice of the dranga These dranges may irclude modtyirtg or deleting exilíttg þ¡ms and addíng new þrme Subiect b üre requirenrenb of apdlcable lar¡ any drenges to this Agreemantwill become efbctlr¡e etlhe time stabd ln or¡r nolice to yæ. Q rctaining or usíng lhe Cad or by auftoddng anyone else þ r¡se lhe Card afterttre effecüre dab of eny dranga, you wl[ haæ agreed to üre chsrggd brilrs qf f¡is lgreenrent ll/e u,ül send no'üce of any dranges b yor at your last add¡ess shown on our reúþrds hlo dtstge to any term or corxfiüon of this Agreennnt shall be effectw unless accepted or aulhorized by us in wfing. Eilheryou or we may terminate lhis Agreement in its entirety at any time, but terminaüon shall not affect any of your e,risling obligations under lhis Agreement The Card is our property, is nontransferable and must be sunendered to us upon demand. 1 Ð. GON DMOilS U HDER WHICH ÂÌTORN ETS FEES AII D OIH ER C}IARGES iIAY BE IMPOSED: ihe extent permitted by applicable law, you shall be liabte to us for all cosls and darnages To resulting from any breach of this Agreement provided, howeveç that your liability to us for unautrorized use of the Card shall be determined as provided in 9-ection 14 on fte prwious pâge. lf you fail to pay any amounts due under this Agreement and your debt is refurred to an attorney(s} not one of our salaried gTdoyees, for collection or other enforcement proceedings, wheürer by su'rt or othawise, and tre unpaid balance sf the debt a 35 20. GOìrERlllllG tAt{¡ 9EITERAB uising from or relalíng to ürlc Agraern porisirm wlfl ¡ardn ln full force æd cffect 21. ARBI1RAilON: ìbu rgrce tftrt our l¡uane of lñc C¡td and pcrformance of üc datod senlo¡ provlded undc tile Agraenor¡t t¡kc plece ln rnd ¡ubctrnüally efhc{ lnlorctNùe commcrrr, rnd a¡o hllocebly Oed b rîy dlspr¡ts eÈ¡ng outdorrcleltp ln anyreyto ¡Éltr¡üort aodlng b llp tgnn¡ prqldsd h üie ¡groemont lor ttosr Dcpo¡ft Aær¡nt Yoü rbo egree !o ghrÊ uD tñc rlght þ t d( nmedle¡ ln can( indudlng tho nghtto ¡ lury trlal 36 ¡ a , 37 Compass Bank, â member of the BBVA Group Member FDIC TSB-C (06/08) Ê Ërffi Ta 2 BBVACompass Consurner Depos¡t Account Agreernent Consumer Deposit Accou nt Agreement 1, Definitions 7 Withdrawals 10 1O Set Off 12 13. lnterest; lnterest Reporting 12 17 Electronic Banking Services 13 Electronic Fund Transfer Disclosure Statement 16 Funds Availability Disclosu re 17 '18 Taxpayer ldentification Numbers (Backup Withholding) lmportant lnformation About Your 21 Checking Account (Check 21) Welcome to Compass Bank, lVember FDIC. This booklet contains your Deposlt Account Agreement and certaln additional disclosure lnformation Please read thls informatìon carefully and keep ìt wìth your other financial records. Consumer Deposit Account Agreement This Agreement covers any type of deposit account (as defined below) you may have with us now or ln the future, that is used primarily for personal, family or household purposes By opening your account, by conductlng any transaction involving your account, or by maintainlng your account after ræeipt of this Agreement, you agree to the terms in this Agreement Thìs Agreement includes not only this document but also your signature card, [he Consumer Products Terms and Conditions Booklet, your Relationship Summary Form and the Miscellaneous Fees and Charges Drsclosure, This Agreement also includes any new or amended provisions and disclosures we may provide concerning your account All of these documents together are a contract between you and us. YOUR ATTENTION IS DRAWN TO THEARBITRATION AND WAIVER OFJURY TRIAL PROVISIONS IN SECTION 2.IFA DISPUTEARISES BETWEEN US, YOU OR WE MAY REQUIRE THAT IT BE RESOLVED THROUGH ARBITRATION, RATHER THAN THROUGH JURY TRIAL Unless otherwise expressly agreed in writing, our relationship with you will be that of debtor and creditor No fiduciary, quasi-fiduciary or other spæial relationship exists betwæn you and us. Any internal policies or procedures that we may maintain in excess of reasonable commercial standards and general banking uæge are solely for our own benefit and shall not impose a higher standard of care than otherwise would apply ln their absence. There are no thlrd-party beneficiaries to this Agreement, Spanlsh Language Prelerence lf you express a preference for Spanish as your preferred language for communication with us, we may not be able to accommodate this preference at all of our branches or ln the case of any particular product and service Where we can accommodate Spanish as your preferred language, communications in Spanish are provided as a courtesy only, and English will be the language controlling and governing your banking relationship wlth us The English version of this Agreemen[, as well as the English versions of any other account dæuments that may be available in Spanish, shall be the official, governing account documents Howevel as a courtesy, at your request, and for your convenience only, we may, at account opening and thereafter, provide you with unofficial Spanish translations of the official tnglish versions of certain account documents I. DEFINITIONS The following terms and definitions apply when used in this Agræment Some terms used in this Agræment but not defined below have the meaning assigned to them in the Uniform Commercial Code in effect in the state where we maintain your account Account or Deposit Account. Any type of chækìng, ævings, money market, or N0W account to whìch funds may be deposited, Time deposits are excluded from this definition and are not covered by this Agreement Account Owner or Owner. Each person named in our records as an account owner wlth respect to an account, including any trustee, custodian, guardìan, conservator or other representative acting in that capacity. ATMs. Automated teller machines. Attorney-in-Fact, An agent designated under a valid power of attorney. We reserve the right, in our sole discretion, not to honor any power of attorney. An attorney-infact representing an account owner does not become an owner of an account and wìll not have rights ln an account at the owneis death as a resulI of the agents capacity as an attorney-in-fact. Authorized Signer. Each person who has signed a signature card w¡th respect to an account in any capacity, including any trustee, custodian, guardian, conservator, attorney-in{act, or other representêtìve acting in that capacity. Available Balance. The balance of funds in your account that is available for immediate withdrawal. Unlike the posted balance, the available balance reflæts any holds placed on your account, including the restrlctions described in the Funds Avaìlabìlity Dìsclosure included with this Agræment Your available balance may be more or less than the amount of your posted balance, but does not include any credit available under any Compass Bank Overdraft Protectlon Line of Credit you may have Business Days. Although many of our branch offices are open on Saturdays, for purposes of this Agreement, our business days are lVonday through Friday, excluding holidays. Dormant Account. An account will be considered dormant ìl for one year or more in the case of chæking and NOW accounts (two years or more for an account maintained in Florida) or for two years or more in the case of savings and money market accounts (one year or more for an account malntained in Texas or California): no transaction activity has been conducted on the account, no correspondence regarding the account has been received by us, and no account owner has othenruise indicated an interest in the account lndividual Account. An account owned by one party as indicated on our records, also refened to as single-party account. At the death of the owner of a single-party account, ownership passes as part of the owners estate unless the owner has chosen a P0 D. account by designating one or more benefìclaries of the account. Item, A check substitute check, draft, withdrawal orde¡ payment orde[ or other similar rnstrument, order or instruction, whether oral, written or electronic, either for the deposit of funds to your account or for the payment of funds from your account ltems include debits and credits for poinLof- sale, ATN/ and Check Card transactions. Joint Account. A deposit account with more than one account owner There are three types of Joint Accounts: i. A Joint Account with right of survivorship so that, at the death of an owner, ownership of the account passes to the survìving owne(s), and not to the dæeased owners estate: 2. A Joint Account with right of survivorship and P0 D by deslgnating one or more beneficiaries of the account, so that at the death of the last surviving owner, ownership passes to PO.D. beneficiaries and is not part of the last surviving owners estatq or 3 Joint Account without right of survlvorship, so that at death of any owner, [he dæeased owners ownership interest passes as part of a dæeased owners estate. Joint Accounts will be presumed to be with right of survivorship (type (1) above) unless applicable law requires that you make an aff irmative designation in order for right of survivorship status to apply. Not all types of Joint Accounts are available in all states. P.O.D. Account. A deposit account payable on request to one or more owners during their lifetime and on the death of the last survìving owner, to one or more surviving beneficiaries and no[ to any owneis estate lf two or more beneficiarles survive, the sums on deposits belong to them in equal, undivided shares Posted Balance, The balance of funds in your account based solely on items that have been posted as credits or debits to your account. Unlike the available balance, the posted balance does not reflect any holds placed on your account. Your posted balance may be more or less than the amount of your available balance, but does not include any credit available under any Compass Bank Overdraft Protection Line of Credit you may have Service Charges. Any charge, fee or similar amount due to us, whether for a service we may provide or for a partlcular condition or status of your account or any item relating to your account which has been disclosed by us in this Agreement or in any schedule of service charges included or incorporated by reference in this Agreement Other charges, fees, and sìmilar amounts due to us, but not disclosed in this Agreement, may apply under other agreements you may have with us Substitute Check. A paper reproduction of an original check that (1) contains an image of the front and back of the original check; (2) bears a MICR line containìng all the information appearìng in the lt/lCR line of the original check at the time the original check was converted to an electronic image; (3) conforms in paper stock dlmension and otherwise with industry standards; (4) includes a legend stating, 'This ls a legal copy of your check You can use i[ the same way you would use the original check]ì and 6) is suitable for automated process¡ng ìn the same manner as the original check, Totten Trust Account. A deposit account in the name of one or more owners as trustee for one or more beneficiaries where the relationship is established by the form of the deposit account and there are no assets of the trust other than the sums on deposit in the deposìt account This type of account is a form of P0 D account, We,0ur, Us, BBVA Compass, Compass, and Compass Bank. Compass Bank, Member FDIC, or any other affiliate bank of BBVA Compass Bancshares, lnc For purposes of Section 2 only, these terms also include the directors, officers, and employees of Compass Bank and lts affiliates You, Your, and Yours. The account owner or, if the accoun[ is a multiple party account, any and all account owners, and all authorized signers A. Subsection A applies if you reside in a state other than California and we do not maintain your account in California ARBITRATION By opening or maintaining the account, you agree that if a dispute, claim or controversy of any kind arises out of or relates to this Agreement or to your account or any transac[ions involving your account, or any service or product related to your accounl either you or we can choose to have that dispute resolved by binding arbitration This arbltration provision limits your ability to litigate claims in court and your right to a jury trial. You should review this section carefully. You will not have the right to pafticipate as a class representative or member of any class of claimants for any claim subject to arbitration Arbitrat¡on is a more informal proceeding in which disputes are decìded by one or more neutral arbitrators who issue a binding ruling in the form of an award. You and we understand that discovery and other præedures in arbitration may be more limited than discovery in court præeedings and that the ability to modify, vacate, or appeal an award by an arbitrato(s) is s[ricily limited You and we agree, upon written demand made by you or us, [o submit to binding arbitration alldisputes, controversies, and claims, whether based on contract, fraud, tort, intentional tort, statute, regulation, constitu[ion, common law equity, or any other legal basis or theory, and whether pre-existing, presenl or fu[ure, that arise out of or relate to (a) this AgreemenL your account, any transaction involving your account, any servlce or product related to your account, or any advertisements, promotions, or oral or written statements related to this Agreement or your account, (b)the relatlonshìps that result from this Agreement (including, to the fullest extent permitted by applicable law relationships with third parties who are not parties t0 this Agreement or this arbitration provision), (c) your relationshìp with us that relates to this Agreement or any other agreement or relatlonship you have wìth us that is not also subject to a different agreement to arbitrate, or (d) the validlty, interpretation, scope or enforceabìlity of this Agreement or the interpretation or scope of the Arbitration Clause (collectively, a "Claìm") All parties retain the right to seek relief in a small claims court for disputes or claims within the jurisdictional limits of the small claims courI At the option of the first to commence arbitration, you or we may choose to have the arbitration conducted by JAN/S ADR 0AIVS ) or the American Arbitration Association (AAA') or you and we may agree upon a different arbitrator In any event, any arbitration under this Agreement shall be conducted in writing in accordance with the AAA Rules (Rules') You agree that this arbitration provision is made pursuant [o a transactlon involving interstate commerce, and the Federal Arbitration Act (the'FAA")shall apply to the construction, interpretation, and enforceabillty of this Agreement notwithstanding any other choice of law provision contained in this Agreement. Either you or we may initiate arbitration by giving written notice of the intentlon to arbitrate to the other party and by filing notice with JAlr/S or the 2 AAA in accordance wlth the Rules in effect at the time the notice is filed The notrce shall set forth the subject of the dispute and the relref requested, at a minimum. The demand for arbifation may be made before or after commencement of any litlgation. You should contactthe AAA at 800-778- 7879 or wwwadr.org or JAMS at 800352-5261 www.lamsadrcom for more information about arbitration lf for any reason the AAA or JAMS is unable or unwilling to serve as arbitration administrato, or you and we are unable to agree on another arbitratot we will substitute another national or regìonal arbitration organization. Demand for arbitration under this Agreement must be made before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations;otherwise, the Claim also is barred in arbitration. Any dispute as to whether any statute of limltations, estoppel, waiver, laches, or similar other doctrine bars the arbitration of any Claim shall be decided by arbitration in accordance with the provisions of this Agreement. You cannot loin together in a dispute with anyone other than persons who use your account, although this limitation does not affect the abrl ty of a purely governmental entity to institute any enforcement action. Even if other people have disputes similar to a dispute that you and we have, those people and their disputes cannot be part of any arbitration betwæn you and us, A Claim bv or on behalf of, other oersons will not be considered private attornev qeneral, or other representative basis. Notwithstanding anything to the contrary in this Agreement, any dispute regarding the prohibitions in thls paragraph or about the enforceability of the arbitration clause shall be resolved by a court and not by the arbitrato(s) Where the aggregate of all Claims by both you and us does not exceed $250,000, any expedited procedures provided in the Rules ('Expedited Præedures') shall apply and a single arbitra[or shall decide the Claims. Where the aggregate of all Claims by both you and us exceeds $250,000, a panel of three arbitrators shall decide all Claims. Each arbitrator, whether or not acting under txpedited Procedures, shall be an active member ln good standing of the bar for any state in the continental United States and shall be either (a) actively engaged in the practice of law for at least 5 years or b)a retired judge You and we agree that the arbitrato(s): (a) shall limit discovery to non-privlleged matters directly relevant to the arbitrated disputej (b) shall grant only relief that is based upon and consistent with substantìal evidence and applicable substantive law; (c) shall have authority to grant relìef only with respect to Claims asserted by or against you individually; (d shall provide a brief wrltten explanation of the basis for the award upon the request of either party and shall make specific findings of fact and conclusions of law to support any arbitration award that exceeds $25,000 Upon written request by you, for claims up to $50000, we will pay to the AAA or jAMS the portion of the arbìtration filing tee that exceeds the cost of filìng a lawsuit in the federal court where you live Upon written request by you, we may elect, at our soie discretion, to pay or advance some or all of any remaining arbitration fæs and other costs The arbitrator will dæide whether we or you ultimately will be responsible for paylng any filing, administrative or other fees in connection with the arbifation. If you are the prevailrng party in the arbitration, the arbitrato(s) may order us to pay some or all of your attorney, expert, and/or wltness fees, Any arbìtration proceedings shall be conducted in the federal judicial distrlct where we maintain your account Judgment upon any award rendered in arbitration may be entered in any court having jurlsdiction. lf you or we are seeking to bring a joined, consolldated, or class action and if the portìon of this arbitrat¡on provision that prohibits the arbitration of joined, consolidated, or class actions is deemed invalid or unenforceable, then the entire arbitration provision shall be void and unenforceable and severed from the rest of this Agreement lf any portion of this arbìtration provision other than the prohibition against the arbitration of joined, consolidated or class actions is deemed invalid or unenforceable, then that portion will be severed and the remaining portions of this arbitration provisìon will remain valid and enforceable including the prohibition agaìnst the arbitration of joined, consolidated or class actions. Nothing in this arbitration provision shall limiI your or our rìght, whether before, during, or after the pendency of any arbitration proceeding, to exercise any se f-help remedies, such as set-off or repossession and sale of collateral, or io obtarn provisional remedies (including but not Imrted to, injunctive relief or ìnterpleader relieÐ You and we agree that the taking of these actions or any other participation in litigatlon by you or us does not waive any rìght that either you or we have to demand arbitration at any time with respect to any subsequent or amended Claim filed against you or us after commencement of litigatlon between you and us This arbitration provision shall survive termìnation of this Agreement and the closing of your Account WAIVER OFJURY TRIAL This provision limits your rights to a jury trial. You should review this section carefully, lf (i) neither you nor we sæk to compel arbitration ol'any dispute we have related to this Agreement, your accounL or any transactlons involving your account, or (ii) some or all of the arbitration clause ìs unenforceable and we are in a dispute in a court of law, then each of us agrees to waive any right we may have to a jury trial to the extent allowable under the laws of the state that govern this Agreement. Attorneys' Fees. ln any action between you and us in court, the prevaìling party shall be entìtled to ræover its reasonable attorneys'fees expended in the prosæution or defense of the court action from the other party. B, Subsection B applies if you either reside in California or we maintain your account in California JUDICIAL REFERENCE & WAIVER OF JURY TRIAL By opening or maintaining the account, you agree that if a dispute, clalm or controversy of any kind arises out of or relates to this Agreement or to your account or any transactions involving your account, or any service or product related to your account it will be resolved by judicial reference pursuant to the provisions of the California Code of Civil Præedure, Sætions 638-6451 inclusive, unless the dispute, claim or controversy is part of a class action This judicial reference provision limits your ability to litigate claims in court and your right to a jury trial, By agreeing to 3 judicial reference, you and we waive, and shall not have, any right to a jury trial, You should review this section carefully. Judicial reference is a proceeding in which disputes are decided by a judicial referee who receìves the evidence at a hearing and then lssues a statement of decision upon which a judgment is based You and we agree that the referee shall have the power to decide all issues of fact and law and report his/her statement of decision hereon, and to lssue all legal and equitable relief appropriate under the circumstances before hìm/her Either you or we may inìtlate judicial reference by givìng written notice of the intention to initlate judicial reference to the other party and by proceeding in accordance with California Code of Civil Procedure Sætion 638 You and we agree, upon written demand made by you or us, to submit to judicial reference all disputes, controversies, and clalms, whether based on contract, fraud, tort, intentional tort, statute, regulatlon, constìtution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to this Agreement, the account, any transaction involvlng the account, any service or product rela[ed to your account, or any adver[isements, promotions, or oral or writ[en statements related to this Agreement or the account, the relationships that result from this Agreement (including to the fullest extent permitted by applicable law relationships with third parties who are not parties to this Agreement or this ludicial reference provisiod, or the validit\¿ interpretation, and scope of this Agreement (collætively, a 'Claim ) All parties retain the right to seek relief in a small claims court for disputes or claims within the jurisdictional limìts of the small claims court. You and we agree that a single referee who is a retired California state or federal court judge shall be appointed by the court pursuant to California Code of Civìl Procedure 640 and shall preside over the reference proceeding and try all issues, whether of fact or law lf the parties are unable to agree upon a referee within ten (10) days of a written request to do so by any party, then any party may thereafter seek to have a referee appointed pursuant to the California Code of Civil Procedure, Sections 638 and 640 lncluding submitting to the court up to three nominees who are retired state or federal courtjudges You and we shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as anytrial courtjudge. Demand for judicial reference under this Agreement must be made before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations; otherwise, the claim also is barred in judicial reference. Any dispute as to whether any statute of limitations, estoppel, waiver, laches, or other doctrine bars the judicial reference of any Claim shall be decided by the judicial referee in accordance with the provisions of this Agreement. A claim by, or on behalf of other persons wìll not be consldered in, joined with, or consolidated with, the judicial reference præeedings between you and us Any such claim will be resolved ìn a court of proper lurisdiction Nothing ìn this judicial reference provision shall limit the right of you or us, whether before, during, or after the pendency of any judicial reference proceeding, to exerctse any self-help remedies, such as se[ off or repossession and sale of collateral, or to obtain provisional or ancillary remedies or injunctive or other traditionally equi[able reliel such as filing an interpleader action. You and we agree that the taking of these actions or any other participation in litigation by you or us does not waive any right that either you or we have to demand judicial reference at any time wlth respect to any subsequent or amended Claim filed against you or us after commencement of litigation between you and us You and we agree that the referee shall not have any authorìty to require, as part of any relief granted, that you and we continue any relationship we may have under this Agreement or otherwiser and shall provide a statement of dæision stating the disposition of each claim and a concise written explanationof thebasisfortheaward Therefereesstatementof decisionshallcontainwrìttenfindingsof factandconclusionsof law,andthecourt shall enter judgment thereon pursuant to Californìa Code of Civil Procedure Sætions 644(a) and 645. The dæìsion of the referee shall then be appealable as if made by the court Unless inconsistent wlth applicable law, each party shall bear the expense of its respective attorney, expert, and witness fees, rEardless of which party prevails in the judicial reference Except for any fillng fee ìf you initiate judicial reference proceedings, we will pay all of the remaining judìcial reference fees and other costs, includìng the referees fees where ræuired by law The referee will decide whether we or you ultimately will be responsible for paying any fees or other costs in connection with the judicial reference Any judicìal reference proceedings shall be conducted in the federal judicial district of your resìdence, and you wlll be given the opportunity to attend the proceeding and be heard. Judgment upon any statement of dæision rendered in judicial reference may be entered by the court that appointed the judicial referee or any other court wìth jurisdiction lf any portion of this judicial reference provision is deemed invalid or unenforceable, the remainlng portions of this judicial reference provision will remaìn valid and enforceable. This judicral reference provision shall survive termination of this Agreement and the closing of your Account Attorneys' Fees. In any action between you and us regardless of whether it is proceedìng in court or ln judicial reference unless inconsistent with applicable law each party shall bear the expense of its respætive attorney, experL and witness fees, regardless of which party prevails in the matter. 3. ACCOUNTOPERATIONS New Account Verification and Other lnquiries. We may make inquiries that we consider appropriate and use third party services to help us verify your identity, obtain information regarding your previous banking relationships and determine if we should open, maintaìn, collect or close your account. We may also report the status, history and/or closure of your account to third-party servrces. ldentification. To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify, and 4 record ¡nformation that identifies each person who opens an account For these reasons and for our internal purposes, when you apply for an account, we will ask for information that will allow us to identify you We may also ask for your driveis license or other identifying dæuments 0wners. You appoint all other account owners and authorized signers as your authorized agents for all purposes relating to your account including, but not limited to, endorsing checks, stoppìng payment, making deposìts, making wìthdrawals, obtaining account information, making transfers from the account, closing the account, or pledging or assigning the account A withdrawal from your account by any account owner or authorized signer will discharge our obligation to you with respæt to the amount withdrawn, regardless of the source or ownership of the funds in the account. Any account owner ola multiple party account may add a new owner or authorized signer to the account We may require a new signature card before any change in ownershìp or authorized signers becomes effective We may, but are not required to, honor a request by you to prevent a withdrawal or transfer by any other accounI owner or authorized signer or [o remove another account owner or au[horized signer from the account, A service charge may apply if we honor the request, and you agree to indemnify us and hold us harmless from any loss or damage to you or anyone else that results from our honoring the request. You may be asked to sign additional documents or agreements in connection wìth the request Assignment of Account No pledge, assignment, or other transfer of any account, whether by gift or otherwise, shall be binding on us unless acknowledged by us in writing Un ess we agree otherwlse in writing, the account will remain subject to our rights of set off even after we receive notice of the transfer. We are not rEuired to accept or recognize an attempted assìgnment of your account or any lnterest in it, includlng a notice of security interest, except as required by law Accounts are Transferable Only on Our Records. We reserve the right not to acknowledge or accept any attempted transfer of an account Authorization to Pay and Debit the Account You authorize us to pay or withdraw funds from the account, without any notice to you, on the order of any account owner or authorized signer or on the order of any personal representative, guardian, conservator or custodian of any account owner (even if appoìnted in a state or country other than the one in which we maintain your accounù You authorize us to honor orders to pay or withdraw funds received by us from any of these persons in writing, orally, or electronically (including by telephone) Powers of Attorney/Agents. We may, but are not required to, honor orders and instructlons concernìng your account by an attorney ln-fact for any account owner or an authorized signel or by a personal representative, guardian, conservator or custodian of an account owner You should notify us in advance if you plan to use a power of attorney lnvolving your account We may rEuire that a power of attorney be executed on a form acceptable to us, that the power of attorney contain language satisfactory to us and/or that the attorney-ln fact present the original power of attorney before we honor the orders or instructlons of the attorney-lnfact. We may restrlct the types and dollar amount of transactions an attorney-in{act may conduct We may terminate acceptance of a power of attorney at any tlme and for any reason and without notice to any account owner or any other person lf we honor the orders and instructions of the attorney-inJact, account transactions conducted by the attorney-in-fact and the instructions and orders of the attorney in-fact are binding on all account owners lf we accept a power of attorney, we may continue to recognize and honor the authority of the attorney infact untìl we receive written notice of revocation or terminatlon of authority and have had a reasonable time to act on it We assume no duty to monitor the actions of your attorney-in fact to ensure that (s)he acts for your benefit lf you make your chækbook, your chæking account numbet your ATI\4 or check card, or personal identification numbers and/or security codes available to any third person for the purpose of transacting business on your account, you agree to assume full responsibility for any errors or wrongdoing performed or caused by such third person You are responsible to us for any actìons of such third person, regardless of whether those actions exceed the authority given, Service Charges; Other Charges. You acknowledge that you have been provided our current schedule of service charges and, if applicable, interest rates for your account You agree that all service charges and any interest rates applicable to the account may be changed by us from time t0 tìme as set forth in this Agreement You agree that we may debit from your account, even if your account is dormant, abandoned, or unclaimed, without any further notice or demand, all service charges applicable to your account, as well as charges for the purchase of checks, drafts, and other products or servlces ordered by you from or through us You agree that ìf your account is closed during a statement cycle, at account closing, we may charge all service charges not yet posted to your account for that statement cycle. We shall not be liable for failing to pay any item presented agaìnst your account if the available balance is ìnsufficient to pay the item, even if the insuflicient available balance results solely from debiting these service and other charges from your account, Processing and Posting Order. You authorize and agree that we may, in our sole discretion, determine the order that we process and post credits, debits and holds to your account You also authorize and agree that the order and/or manner in which we process and post credits, debits and holds may vary by the product, service, account lype or type of transaction You also authorize and agree that we are allowed to pay or authorlze some credits, deblts, and holds, and decline or return others, in any order we deem appropriate The order in which we post credits, debits and holds to your account may not be the same as the order in which you make the withdrawals from or deposits to your account You agree that any order in which we process and post credits, debits and holds to your account wìll not be an abuse of discretion lf two or more items are presented for payment from your account on the same day, we may pay or charge the items to your account in any order without regard to any contrary instructìons from you, even if paying a particular ltem or items causes the available balance for your account to be insufficient to pay one or more other items that otherwise could have been paid, which may result in [he occurrence of additional or other service charges that othenruise may not have æcuned We may pay items drawn on ug debit your account for any service charges and other amounts that you owe us under this Agreement or otherwise, and we may exercise any rights of set off we may have against the account before we pay any other item lf an item was initiated at a poinLof-sale terminal or is a VISA transaction or ATM transaction, you agree that we may charge the amount of the item 5 to your account or place a hold on your account ¡n the amount reques[ed by the merchant immediately upon authorization of such transaction, even though we have not then actually received the item for payment We will make payment for a transaction only after the actual transaction ls presented to us physlcally or electronically. Each such hold will reduce the Available Balance in your account by the amount of the hold Telephone Calls: Calling, Monitoring and Recording. When you give a telephone number dirætly to us or place a telephone call to us, you consent and authorize us to place calls to you at that number. You understand that a "telephone numbei' includes, but is not llmited to, a cell phone or other wireless device number and 'calls" include, but are not limited to, telephone calls, prerecorded or artificìal voice message calls, text messages, and calls made by an automatìc telephone dialing system from us or our affiliates and agents As examples, we may place calls to you aboutfraud alerts, deposit holds, and amounts you owe us (collection calls) on your accounts. This express consent applies to each telephone number that you provide to us now or in the future and permits such calls regardless of their purpose Calls and messages may incur charges from your communications provider. You consent and authorize us to monitor, and to ræord, telephone conversations and other electron¡c communications you have with us and with our representatives for reasonable business purposes, including security and quality assurance, We will not remind you that we may be monitoring or ræording a call at the outset of the call unless required by law to do so 4. ACCOUNT STATEI4ENTS AND NOTICES Periodic Statements. lf we have a dellverable address on file for you, we will mail or deliver to you periodic statements for your deposit account at approximately monthly intervals unless we spæify to you another interval period when you open your account or thereafter. The account statement will describe each item by item number (where appropriate), amount, and date of debit or credit, For certain types of accounts, the periodic statement may be accompanied by the items or a facsimile of those items listed on the statement, unless the item or an image of [he item is unavailable for any reason, for example, when an item is electronically presented (or re-presented for payment against your account. lf we comply with the foregoing provisions of this Section, you agree that the statement and ltems all have been made available to you ln a reasonable manner. We will not be responsible for any indlræt, special or consequentìal damages under any circumstances for our inabllity to provide copies of checks 0ur llability, if any, will not exceed the face amount of the check in question l\4ailing and Availability. Periodic statements and canceled checks, to the extent we have agreed to provlde either of them for your account, and written notices of dlshonor or return of unpaid deposited items, or any other notlce or communication, may be mailed to you at the address shown in our records or a forwarding address for you if one is on file with the U S Postal Service However, we will not mail any account informaflon to an address that the U S Postal Service has informed us is 'undeliverable"or otherwise invalid We use reasonable efforts to marntain the first statementß) returned as undeliverable for sixty (60) days, or such longer period of time as may be required by applicable law af[er which time we may dispose of the statement and origìnal items However, we retain printable versions of your account statements for seven (7) years, or longer perlods as may be rEuired by applicable law You agree to give us wr¡tten notice of any change of your address. Periodìc statements, and written notices of dishonor or return of unpaid deposited items, or any other notice or communlcation, may be dellvered to you electronically if you have agreed to receive such notices and communications electronically. Notify us promptly if you do not ræeive your statement by the date you normally would expect to receive it. We may, but are not required to, change the address for you in our records if the U S Postal Service notifies us of a new address for you, and you waive any and all claims against us that arise in connection with any mail forwarded to you or sent to an address for you supplied to us by the U S Postal Service. Any account owner or authorized signer of a joint account may change the mailing address for your account. Notice to any one account owner shall constitute notice to alljoint account owners in a joint account We may make statements, canceled checks ff applicable to your account) notices or other communications available to you by holding all or any of these items for you, or delivering all or any of these items to you, in accordance with your request or instructions, lf we hold statements or notices to you at your request or bæause you fail to provide us wi[h a current address, they will be deemed delivered to you when they are prepared (for held statements), mailed (for returned maiD or otherwise made available to you. Errors;Unauthorized Transactions and Forgeries. 0ur records rEarding your accounts will be dæmed correct unless you timely establish with us that we made an enor, lt is essential that any account errors (including missing deposits), unauthorized transactions, alterations, unauthorized signatures, unauthorized or forged endorsements, forgeries, encoding enors, postlng errors (such as debits or credits posted twice, debits posted as credits or credits posted as debits) unauthorized or disputed fees (of any kind) or any other improper transactions on your account (collætively referred to as "exceptions") be reported to us as soon as reasonably possible Otherwise, we may not be liable for the exceptions, You agree that you will carefully examine each account statement or notice you ræeive and report any exceptions to us promptly after you receive the statement or notice. You agree to act in a prompt and reasonable manner in reviewìng your statement 0r notice and reporting any exceptions to us. lf you do not report an exception to us within thirty €0) days after we send or make the statement or notice available to you, you agree that we will not be liable to you for any loss you suffer related to that exception and that you cannot later dispute the transaction amounts and information contalned in the statement This means that, ìf you do not report exceptions to us within thirty (30) days after we send or make the statement or notice available to you we will not reimburse you for any such disputed amounts or any loss you suffer including, but not limited to, any amounts lost as a result of paying any unauthorized, forged, or altered item, or paying any other item altered or forged by the same wrongdoer if we pald the other item before we received notice of any of these exceptions from you. Except as provided by applicable law you also agræ that we will not be required to reimburse you for any exceptions caused by your own negligence Different rules may apply to items that are electronic fund transfers In any case, you agræ to repay us promptly any amount credited to your account in enol and you authonze us to debit your account to obtain payment of any enoneous credit, 6 Record Retention. We will retain any item paid on your account for a period of fifteen (15) business days from the date the item posts to your account. We will retain copres of those items for seven (7)years Signatures; Facsimile Signatures. We may rely on each slgnature on a signature card for the account or on prror authorized items in all transactions connæted with the account We are not required to act upon instructions ræeived by fax transmission, voice mail or e-mail. lf you use a facsimile signature or other mechanical or elætronic device for signing or authenticating items drawn on your account, you assume the entire risk that the facsimile signature or device may be used improperly or by an unauthorized person We will not reimburse you or any other person for items drawn in this fashion by any unauthorized person or by any person who exceeds hrs or her authority to do so, and we may honor all of these type items presented to us You agree to indemnify and hold us harmless from all losses resulting from our honoring an item in any instance in which the item bears or purports to bear a facsimile signature resembling a signature on file with us, regardless of by whom or by what means the actual or purported signature was affixed to the item You agree that signatures by your authorized agents (e g , persons acting under a power of attorney) are valid, even if the principal-agent relationship is not indicated on the check or instruction, Check Signature Verification. We may præess certain checks mæhanìcally, based on the information encoded on the items Although we may review checks from time to time, you agree that reasonable commercial standards do not require us to do so. Items not Bearing Your Signature. lf you give information about your account to a third-party who represents to you that, in the ordinary course of its business, it will present unsigned items, remotely created checks or demand drafts, (ie, ltems which do not bear your actual signature, but purport to be drawn with your authorization)for payment or ìnitiate transfers from your accounts, then any item initiated by that person will be deemed authorìzed by you, even though they do not contain your signature and may excæd the amount you authorized to be charged, and may be charged to your account This provision shall not obligate us to honor such items We may refuse to honor such items wìthout cause or prior notice, even if we have honored similar items in the past You assume the entire risk thatthe information you furnished may be used improperly or by an unauthorized person. We wlll not reimburse you or any other person for items drawn in this fashion by any unauthorized person or by any person who exceeds his or her authority to do so, and we may honor all of these type items presented to us Wire Transfers. When we accept a wire transfer payment order instructing payment to you or to your account, we will notify you of our ræeipt of payment by indicating the amount in your account statement lf the payment order does not specify an account, we may deposit the payment into any accoun[ that you maintain with us (including joìnt accounts) Your account statement will be the only notice of receipt which we will provide you, and no interest wlll be paid on wire transfer payments deposited lnto your account unless the account otherwise pays interest. You agree to pay all charges for wire transfer services stated ìn our schedule of service charges, as amended from time to time Payment orders will not be accepted until executed by us We reserve the right to refuse to accept any payment order. lf there is ever any inconsistency or conllict between the account number and the name of a ræipìent on an instruction or payment order, we may rely exclusively on the account number and bank identification number contained in a payment order rather than the name lf you give us a payment order that ls enonæus in any way, you agree to pay the amount of the order whether or not the enor could have been detected by any security præedure we employ. Amendments to a payment order must be provided to us at least thræ business days prior to our exæution of the payment order. We may record any telephone conversations or data transmissions that initiate or amend payment orders The change rate on a return payment order shall be the rate in effect at the time the return is recelved lnsufficient Available Balance and 0verdrafts. lf your available balance is insufficient to pay the total amount of items presented against your account, we may, at our option, return any of the items unpaid or pay any or all of the items, even though payment will cause an overdraft of your account We may return any item at any time if your available balance is insufficient to pay that item, even if we previously have permitted overdrafts You are not entitled to rely on any prìor act by us with respect to your accounl Our election to pay overdrafts does not establish a course of dealing between you and us or modify the terms of this Agreement You agree that, if your available balance is insufficient to pay any ¡tem presented agaìnst your account, you will pay promptly both our service charge for handling and processing that item and the amount of any overdraft without further notice or demand. Your failure to pay these amounts promptly may result ìn additional service charges to your account We may use subsequent deposits and other credits to the account to cover any overdrafl and any charges existing in your account. Each account owner will be jointly and severally liable for the charges regardless of which account owner is responsible for their occurrence ln the event you fail to pay the amount of any overdraft and all associated service charges and we refer your overdrawn account to an attorney for collection, you agree to pay all reasonable expenses, including without limitation, attorneys fæs and court costs, incurred by us as a result of your account being overdrawn. These charges are imposed on items created by chæk in-person withdrawal, ATM withdrawal, or other electronic means, lnter'Account Transfers. lf you are an owner of two or more consumer accounts that we allow to be linked, you may, by separate agreement, designate one of those accounts as a secondary account from which funds may be transferred to cover items (individually and collætively called a 'tovered item) presented for payment out of another, primary account. lf you make this designation, either at the time you open your accounts or latet and if the available balance in the primary account is insufficìent to pay the amount of any covered item at the time of presentment then we wlll automatically transfer from the secondary account into the prìmary account the specific amount necessary to pay that covered item. You agree to pay the currently applicable service charge each time funds are transferred out of your secondary account and into your primary account to pay a covered item. We will have no obligation to pay any covered item rf the combined available balances in the sæondary account and primary account at the time the covered item is presented to us for payment are insufficientto pay the covered item, provrded however, in our sole discretion, we may either (i) transfer the available funds in your sæondary account to the primary account and pay the item, although it may cause an overdraft subject to the provisìons regarding overdrafts discussed abovei or (ir) not transfer the available funds from your secondary account to your primary account, 7 and your plimary account will be subject to the provisions regarding insufficient funds and overdrafts discussed above We wil have no oblrgation to pay any covered item if the sæondary account is in dormant, inactive, or frozen status ln this situation, if no funds are transferred, you will not be assessed any service charge for the transfer, but your primary account will be subject to the provisions regarding nsufficient available balances and overdrafts discussed above. Stop Payment Orders. You may reques[ us [o stop payment on any chæk, draft, or similar written order or ìnstructlon drawn on your account by giving us the informa[ion we may request, including the account number the ltem numbel the date ol the item, the payee of the item, and the exact amount of the item, and by paying our stop payment service charge We will search for your item by computer, so it is essential that all information you gìve us be accurate To be effective, we must receive any stop payment order in time to afford us a reasonable opportunity to act We will confirm your oral stop payment order in writing and the information included in our written confirmation will be conclusively presumed to be conect unless you notify us wtthLn fourteen (4) days of the date of the confirmation Confirmed stop payment orders will be continued in effect for a period of two (2) years from the date the initial oral stop payment order was placed or such other period of time as required or under applicable law regulation or rule (including, but not limited to, the UCC as enacted under any applicable law regulatìons issued by the Federal Reserve Board and rules lssued by the Natìonal Clearinghouse Association). A confirmed stop payment order will explre at the end of the two year period unless you revoke it at an earlier date or renew it in writing for an addltional two-year period and pay our stop payment service charge. You may not stop payment on an item if we have verified to the payee that the available balance in your account is sufficient to pay such item, or if we have accepted that item by payment or otherwise Any account owner or authorlzed signer may place a stop payment order, and we are not requlred to release a stop payment order unless requested to do so by the account owner or the authorized signer who requested it You agree to indemnìfy us and hold us harmless from and against any loss, damages, and expenses (including attorney's fee) we may incur by reason of our refusal to pay any item upon which you have stopped payment For stop paymenI orders on pre-authorized electronic funds transfers, please refer to the Elætronic Fund Transfer Disclosure Statement in this booklet lllegal Transactions. You agree that you will not use your account for any transactìon that is illegal in the jurisdiction where you live, in the jurisdiction where the transactìon is consummated, or ìn any other jurisdiction affected by the transaction You agree that it is your responsibility to determrne the legality of each of your tranrctions in all applicable jurisdictions before entering ìnto the transaction You acknowledge and agree that we have no obligation to monitor, [o review or to evaluate the legality of transctions on your account You also agree that you will not use your account in connection with any lnternet or online gamblìng trançction, whether or not gambling ls legal in any applicable jurisdiction. We reserve the right io refuse or return any item that we believe is related to an illEal transaction, an lnternet or online gambling transaction or a high+isk transaction To the fullest extent permitted by law, you agree to pay for any item that you authorìzed, even if the transaction related to that item is determined to be illegal Deposits. We may require a minimum initial deposlt to open an account, You may make additional deposits of any amount otgl OO or more accompanìed by a completed deposit slip (unless your deposit ìs by electronic funds transfer)either in person, by mail, at an ATM, a night depository, or by electronic funds transfer. We may charge for deposits, and we also may refuse to accept for deposit or collection any item you offer for deposit, accept all or any part of a deposit for collection only, or limit the amount of the deposit lf your deposit is other than cash, for example, chæks, we may without prior notice [o you (except where prior notlce is required by law) place a hold on the account for the amount of deposited items for the approximate period of time it takes us to verify that the items will be paid. During the hold period, interest-bearing accounts will earn interest in accordance with the interestschedule ltems accepted for deposit and drawn on a non-U S. institution may be subject to a service charge We may accept an item for deposit to your account from anyone and without questioning or verifying the authority of the person making the deposit Any item that we cash or accept for deposlt may be subject to later verlfication and final payment. We may deduct funds from your account if an item ìs lost (unless such item was lost due to Compass Bank s negligence) stolen or destroyed in the collection process, if it ls returned to us unpaid, or if it was improperly paid, even if you have already used the funds. Cash deposits are also subject to later verification Credit for any item we accept for deposit to your account, including funds that are deposited by electronic transfel is provisional and may be revoked if the item is not finally paid, for any reason, in cash or its equivalent We may give cash back to any authorized account signe(s) or agent(s) in connection with items payable to any owne¡ whether or not the items have been endorsed by the owner lf you make a deposit or payment that is not accompanied by instructions indicating how or where it is to be credited, we may apply it at our discretion to any loan or deposit account any of you maintains with us, We may endorse and/or collect items deposited to your account without your endorsement, but may require your personal endorsement prior to accepting an item for deposit lf you deposit an item that bears the endorsements of more than one person or persons who are not known to us, we may refuse the item, require all endorsers to be present, or require that the endorsement be guaranteed by another financlal institut¡on acceptable to us before we accept the item. 0ur policy on the availability of deposits for withdrawal is described in the Funds Availability Disclosure portion of this booklet. Collection as Agent. ltems dellvered to us for deposit or collection are ræeived by us as your agent for collætion and at your risk. We may accept an item for collætion only (such as a returned deposited item or an item drawn on a non-U.S. institution) and impose a service charge for attempting collection of the item. ln situations where we accept an item for collection only, we will not give you cash or an official check for the items until the items have been paid. We are obligated only to exercise ordinary care in handling and collecting items delivered to us for deposlt or collætion We shall not be liable for the misconducl neglæt, insolvency, mistake, or fault of other persons or entities, or for loss or destruction of any item in transit or in the possession of others or for loss of use as a result of thefl fire, or other event beyond our reasonable control. lf any item deposited to your account is payable by a payor that is not a bank, we may send the item directly to that payor ltems payable through another bank may be sent B dirætly to that bank or to collæ[ing agents who likewìse shall have the rìght to send the ìtems dirætly to the bank on which they are drawn or at which they are payable Payment of these items may be accepted in cash or drafts and neìther we nor any collecting agents shall be liable for failure to collect such drafts Each collæting agent is deemed to be your agent. No collecting agent shall be liable for loss arìsing from any act or omission of another agent Check Cashing For Others. You should not use your account to cash checks for others who are not well known to you Although we may make funds provisionally available to you and may take steps to determine whether a check will be paid, you are responsible for any loss that occurs if the chæk is returned to us for any reason (e 9., because it ìs counterfeit). Our employees cannot promise that checks drawn on or issued by us or other ìnslitutions, including cashiers checks, will be paid ACH Credits. Credit for an automated clearinghouse GCH')transfer is provlsional until final payment is received by the payee's financial institution. Until that happens the party originating the transfer is not deemed to have made payment to the beneficiary, and the payee's bank is entitled to a refund of the provisional credit lf we give you provisional credit for an ACH transfer, but do not ræeive linal payment, you bæome obligated to us for the full amount without prìor notice or demand We are not required to give you a separate notice of our receipt of an ACH transfer. lf we accept ACH credits to your account, you will receive notice of the credit on your next regular periodic statement Although we may send notice of a non ACH incoming funds transfer @.9., a wire), we assume no obligation to do so You also can contact us to determine if a transfer has been credited to your account. US Dollar Cash Deposit Limitations. BBVA Compass wlll lmpose limitations on the amount of US dollar cash deposits by non-resident customers Under this policy, if you are an individual who is not a US resident, the aggregate amount of US dollar cash deposìts that may be made into your accoun[ during any calendar month is limited to $4000 This limltation will not apply to deposits made by check or other non-cash deposits At our discretion, we may at any time wlthout prior written notice to you (except where prior notice is required by law)establish or change the aggregate US dollar cash deposit limit by posting the maximum US dollar limit in each of our banking centers We reserve the right to refuse any US dollar cash deposit that exceeds, or would cause the aggrEate of such deposits to exceed, our established aggrEate US dollar cash deposit limita[ons Joint Deposits. is a joint account or a PO D. account (including a 'Totten"trust account) our rights and liabilities for payment of any lf an account sums on deposit shall be governed by the laws of the state in which we maintain your account Deposits by fulinors, Agents or Trustees. A deposit accepted from or on behallof a minor, at our option, and subject to applicable law may be paid to or for the minor, and the payment shall be valid even though not executed by the minors guardian, custodian, or legal representative, Where a deposit is accepted from an agent, trustee, or other representative, we do not have to inquire as to the authority of the representative, and the deposit may be paid to the accounl owner or to the representative without inquiring as to the disposltion of the deposit Uniform Transfer to Minors Act (UTMA) Deposits. A gìft of money to a minor named as beneficiary of a UTMA account is irrevocable, will be considered made in accordance with the provisions of applicable state statutes governing uniform transfers to minors, and shall include all interest earned on the account Check Endorsement Standards. lf you deposit checks into your account, you are responsible for the condition of the back of the chæk when it is deposited. The back of the chæk is used during the check collection process to ræord the identilication of banks processing the check, N/ost of the back of the check is reserved for bank use You agree that the endorsement of the check must be contalned in the payæ endorsement area, which ts llmlted to 1-112 inches from the trailing edge of the check on the back The trailing edge of the check is defined as the left side of the check looking at it from the front Any writing, stamp, or marking outside of the payee endorsement area may delay the proper return of any unpaid check you have deposited You agree to indemnify us from any loss or liability, including attorneys fees, that may be caused by your failure to adhere to the endorsement standards of the Federal Reserve System. Foreign Currencies. Deposits in foreign currencies will be converted to U S dollars at the exchange rate in effect at the time of final collection You will be responsible for verification of any exchange rate information provided by us in advance of final collectìon Exchange rates may fluctuate signiticantly in a short perlod of time You bear all exchange risk related to deposits of foreign cunency ATM Depositories, Night Depositories, Direct Deposit, and Deposits by N4ail. 0ur ATMs, night depositories, direct deposit service, and deposit by mail servlce are for your convenience. We are not accountable for deposits made in this manner until the deposit is actually accepted and processed by our authorized employees Deposìts made in this manner will be posted to your account on the date accepted by our authorized employees, Our records are conclusive proof of what deposits we received from you through ATN/ depositories, night depositories, or the mail service lf any direct deposit is recalled, we are authorized to reverse the deposìt without prior notice to you, except as otherwise required by law Your claim that an ltem was deposited, whìch is now missing, will not create a presumption that there is a missing item or that we failed to act with ordinary care Chargebacks. This section applies to items that you deposit or cash ln the event a cashed or deposited item drawn on us (an "on us" item) is determined by us not to be payable for any reason or a cashed or deposited item drawn on any other payor is returned to us for any reason, without regard to whether the other payor returned the item to us before its deadline to do so, we may charge the item (a'chargeback item")to your account or to any account of which you are an owner (including any joint account)or an authorlzed signer. We may debit all or part of a chargeback item to your account even if doing so results in or causes an overdraft of your account and regardless of whether the item can be physically returned to you. You waìve notice of dishonor ln connection with any item that is not finally paid in full and that we charge back to your account. We may recover from you any amount withdrawn by you against a chargeback ltem. ln the event that our debit of all or part of a chargeback item results ln or causes an overdraft of your account, we may obtain and retaln possession of the item, if it is available, until we ræover from you the amount of any overdraft of 9 your account and for a reasonable tìme thereafter lf our debit of all or part of a chargeback item that is an 'bn us" item does not result ln or cause an overdraft of your account, our deadline for return to you of the item, if it is available, shall be six business days after we make such determination. lf we are notìfied that any item for which you received payment or credit to your account is not proærly payable, you agree that, without notice to you, we may authorize the drawee bank to hold the i[em and try to obtain payment. We wìll not initially decide whether a cashed or deposited item has been improperly returned; if you believe that a cashed or deposited item has been improperly returned, you should contact us immediately. We will not be responsible for failing to pay any item presented agalnst your account before a deposit becomes available for withdrawal, as set lorth above, if the available balance in your account, wìthout regard to such deposit, is insufficient to pay the item, as provided ìn Section 5 Service Charges; Enor Correction. We may debit a service charge from your account for each deposited item [hat: is returned to us unpaid (whether for the first or a subsequent time); bears an unauthorized signature; prior to deposit, has been altered, erased, defaced or mutilated; or is lnconectly descrlbed on the deposit slip. Enors in posting, addition, subtraction and calculation, whether by you or us, are subjæt to conection by us at any time; provided that we may not be obligated to conect cer[ain errors if you fail to notify us of the exceptions in a tlmely manner as descrìbed in Section 4. You agree to repay us promptly any amount credited to your account in error, and you authorize us to charge your account or any other account of which you are an account owner, to obtain payment of any erroneous payment or credit Allocation of Deposits/Split Deposits. You may request that the total amount of a deposìt be allocated in portions and credited to in[o multiple accounts, which may include a loan account, We may, in our sole discre[ion, decline any split deposìt request and require that the deposit be made into one accoun[ lf a hold bs described ìn the Deposits sub-section above) is placed on all or any portion of the depos[ the hold may be placed on any one account to which funds were deposited for the total amount of the hold, notwithstanding the split deposit ln the event a deposlted item becomes a chargeback item, we may debit all or part of the chargeback item to any one account to which funds were deposited, even if doing so resul[s in or causes an overdraft of the account Stale and Postdated Checks and Checks Bearing Notations; Miscellaneous. We may, in our discretion and without notice to you, either pay or return any chæk that is presented to us for payment more than six (6) months after the date of that check (a "stale-dated' check) even if the presenta[ion occurs after the expiration of a stop payment order. We normally do not examine the date on checks presented for payment, You agree that we are not required to identify stale-dated chæks or to seek your permission to pay them We also may, in our discretlon and without notice to you either pay or return any chæk we ræeive before the date on that check unless you have complied with any applicable statute regarding postdated chæks and you have provided us with notice of the postdatlng in time for us to have a reasonable opportunity to act on it before the chæk is presented to us for payment Your notice about any postdated chæk must be given in the same manner as a stop payment order and must provide lhe same information required for stop payment orders Each postdated item covered by a notlce of postdating will be subject to a service charge We may disregard any informatlon on an item drawn on your account other than the signature of the authorlzed signer, the amount of the item, the date of the item (subject to the provlsions of this Agreement regardlng stale and postdated checkd, the account number, the endorsements, and any other information which appears ln magnetic ink at the bottom of the check. Although we are not obligated tq we may pay or accept chæks and other ìtems bearing restrictions or notations (e.9., "void after 6 months,""two signatures required,""payee's endorsement requìred,""not good for more than $(amount)' 'void if not paid ìn (number)days,''payment ìn fulll'and the like), whether on the front or back, in any form or format. lf you cash or deposit an item or write a check with such a notation, you agree that it applies only between you and the payee or maker The notatìon will have no effect on us, and you agree to accept responslbiltty for payment of the item We shall have the right, but not the obligation, to process any item that is materially incomplete or has been altered T.WITHDRAWALS You may withdraw part or all of your account's available balance. Any account owner or authorized signer of a joint account may wlthdraw all or part of the available balance in the account, regardless of who deposited the funds into the account We accept no responsibility or obligation, except as required by law, to supervise or review the use of your account Restrictions on Withdrawals. Your account may be sublect to certain trançction limitatìons, which are shown in the disclosure provided to you at the time you opened your accounl We may at any time and without prior notice to you (except where prior notice is rEuired by law)establish or change transaction limitations for any account lf these limitations are exceeded, you will be subject to any charges in effect at the time ln addition, we may stop paying intereston an intereslbearing account, or we may close the account without prior notice to you (except where prior notice is required by law). We also may require you to provide notice before you may withdraw money from certa¡n types of accounts. Although your signature card, resolutions or your chæks may indicate that more than one signature is required on checks and for the withdrawal or transfer of funds, that notation is principally for your own purpose. We expressly disclaim a duty to enforce multiple signature requirements. As such, we expressly disclaim a duty to confìrm that two or more (or any combination)of authorized users have approved any transaction. We may act upon the ìnstructions or order of any one authorized signer. All checks written on your account must be drawn in U S. dollars. We may (but are not obligated to) require suitable identificatlon and/or presentation of account ownership ræords for any withdrawal or account closure At our discretion, we may require all of your signatures for the withdrawal of funds and/or the closing of any account. We may require noncustomers to present us with suitable identification, including valid photo identification, in connection with the cashing of your checks at one of our offices Cash withdrawal or payments at any branch may be restricted due to the lrmrted amount of currency on hand lf we do not have sufficìent cash for a large withdrawal or payment, we may make arrangements for a later cash payment or offer to make payment with a Bank check We assume no responsibiltty to provide personal protection for customers who elect to cany large sums of money off of our premises Without prior written notice 10 to you, we may place a hold on your account to cover a claim against your account, or we may pay the source of the claim when we ræeive any notice, claìm, or court order which we believe may affect your account (such as liens, garnishments, attachments, levies, rnlunctions, or other orders of a court or other governmental agenc/ regardless of the form or manner in which we receive the notice, claim, or court order and regardless of whether we are a named party to the notrce, claim, or cour[ order. We will no[ be responsible for refusing to let you withdraw funds from the account or refusing to pay items presented against your account while the hold is in effect or after we have paid funds to the source of the claìm Conflicting Demands/Disputes. ll [here is any controversy, dispute or unceftainty regarding the ownershlp of an account or its funds, there are conflicting demands over its ownership or con[rol, we are unable to determìne any persons authority to give us instructions, or we believe a transaction may be fraudulent or may violate any law, we may refuse to pay any funds to anyone until we are satisfied that the controversy, dispute or uncertainty is resoived, or we may contlnue to honor the authority of account owners and authorized signers as reflected on our ræords. Sæcifically, we may, in our sole discretion: freeze the account and refuse transactions unt¡l we receive written proof (in form and substance (1) satisfactory to us) of each persons right and authorìty over the account and its funds; (2) refuse trançctions and return checks, marked "Refer to Makei'(or similar language); (3) require the signatures of all authorized signers for the withdrawal of funds, the closing of an account, or any change in the account regardless of the number of authorized signers on the account; (4) pay or offer to pay the account balance to a court of appropriate jurisdiction naming all of the claimants to the account as defendants in an interpleader action (you agree to reimburse us for all expenses we incur in an interpleader action, including attorneys fees and costs, and we may obtain reimbursement of those expenses from your account without notice to you)i and/or (5) contìnue to honor chæks and other instructions given to us by persons who appear as authorlzed sìgners according to our records. The existence of the rights set forth above shall not impose an obligation on us to assert such rights or to deny a transaction We will not be responsible for any damaqes you may suffer as a resull of our refusal to allow you or anyone else to withdraw lunds due to the controversy, dispute or uncertainty or our allowìng any existing owner or authorized signer [o continue to conduct transactions on the account during the controversy, dispute or uncertainty. Legal Process We may comply with any writ of attachment, execution, garnìshment, tax levy, restralning order, subpoena, warrant or other legal præess which we believe (conectly or otherwise) to be valid lf we are not fully reimbursed for our record research, photocopyìng and handling costs by the party that served the process, we may charge such costs to your account, in addition to our minimum legal process fee You agree to reimburse us for any cost or expense, includlng attorney fees, which we incur in responding to legal process related to your accounts We may not pay interest on any funds we hold or set aside in response to legal process You agree that we may honor legal process that is served personally, by mail, or by facsimile transmission at any of our offices (tncluding locations other than where the funds, records or property sought rs held) even if the law requires personal delivery at the office where your account or records are maintained You acknowledge that accounts opened with trust or fiduciary designations (eg , "XYZ, Inc Client Trust Account") may be subjæt to levies and other legal process against your property unless our records clearly reflæt the existence of an express written trust or court order Photocopies. Checks and other items are sometimes lost during processing or while in transìt. lf a photocopy of a chæk or other item that appears to be drawn on your account ls presented to us for payment in place of the original, we may pay the photocopy if it is accompanied by a representation from another financial institution that the original item has been lost or destroyed. We may establish two 'sub-accounts" on our books for certain deposit accounts lf we elect to establish the sub-accounts, it rlvill not affect the other terms and conditions of your account or this Agreement, the Federal Deposit lnsurance prolection afforded on your account, the interest (ìf any) paid on your account, the service charges imposed in connection wìth your accounl or the Truth in Savings disclosure given to you Both of the sub-accounts will remain your accounts, but will be used by us internally to manage your funds The flrst sub-account will qualìfy as and be treated as a"savìngs deposit account" for the purposes of Federal Reserve Board regulations. You authorize us to transfer funds between the two sub-accounts conslstent with Federal Reserve Board regulations. As such, we must advìse you that the regulations require that we reserve the right to require at least seven days'written notice prior to the withdrawal or transfer of funds from the savings sub-account. We do not cunently exercise that right with respect to these savings sub-accounts ln the event we determine to exercise that right, we will close the savings sub-account and transfer all funds back to your current account and cease the sub-account agreement Your deposit and withdrawal capabilities are not affected by our election to establish the sub-account. 9. DORMANT AND ABANDONED/UNCLAIMED ACCOUNTS Dormant accounts may be subjæt to a service charge based on the dormant status Charges are not reimbursed for inactive or dorman[ accounts that are later reclassified as "active." lf funds are remitted to the state you may fìle a claim with the state to ræover the funds For sæurity reasons, we may refuse a wlthdrawal or transfer from accounts we internally classify as dormant if we cannot reach you in a timely fashion to confirm the transactìon s authorlzation. In the case of intereslbearing accounts that bæome dormant, we also may reduce the rate of interest or cease paying interest as disclosed on the applìcable schedule of service charges and ln accordance with applicable state law 0nce an account is classified as being in dormant status, you should contact the bank to request that the account be rælassified as "activei Simply conducting a transaction on an account classified as dormant will not næessarily cause the account to be reclassified as'actrve'l We may be required to transfer the balance in any account that remains dormanL or that is otherwise considered "abandoned" or "unclaimed' for the period of time described by the laws of the state where we maintain your account bt if applicable, the laws of the state of your last residence as shown on our ræords) to that state as "abandoned" or "unclaimed" property. 11 10. SET OFF You acknowledge that, except as oiherwise prohibtted by law, we have the nght to charge or set off against your account any indebtedness or other obligations which you or any owner owe us, at any time, without any further notice to or demand on you, whether the indebtedness or other obligations exist at the time the account is opened or arise later. The indebtedness includes, without limitation, all charges and overdrafts incurred on any account you hold wtth us You agree that we may set off against the account any claim whìch we have against you without regard to the source or ownership of the funds on deposit in the account and without requìrement that the claim be owed to us by all of the account owners You also agree that, to the extent allowed by law, we may set off any indebtedness or other obligations which you owe us under [his Agreement against any other account or properly in which you have an ownership interest that is in our possession or control ll.WAIVERS You waive and agree that we may waive certain legal requirements called presentment, demand for payment, protest, notice of protest, and notice of dishonor with respect to any and all items for which you ræeived payment or credit from us. No departure by us from the provìsions of this Agreement or any waiver of any fees and charges with respect to your Account shall constitute a waiver by us of any further right to impose any charges or enforce the provrsions of this Agreement or a course of dealing different from the terms of ths Agreement l2. OTHER SERVICES lf you have chosen to receive any of our other Banklng Services offered ln connection with your account, such as Check Cards, ATM cards, overdraft lines of credit, and online banking, we may provide the spæific terms and conditions of the additional service to you in a separate agreement or disclosure. Interest will be paid on intereslbearing accounts at the times and at the rates adopted from time to tlme by us. 0n each interest payment date, interest will be paìd only if on that date, the ledger balance for the account is equal to or more than the minimum amount required by us in order for you to receive interest on that account. At any time and without prior notice to you (except where prior notice is requlred by law), we may change these rates and minimum ledger balance amounts or discontinue the payment of rnterest The origrnally effective interest rates and required minimum ledger balance amounts are shown on the interest schedule provided to you at the tlme you opened your account, and a schedule containing current interes[ rates and requìred minìmum ledger balance amounts is available to you upon request, lnterest paid to you is reportable to the lnternal Revenue Service as havìng been received by the first account owner shown on the sìgnature card maintained for the account, We may be required to withhold a portion of your interest payment and remit it to the lnternal Revenue Service Converting Your Account, We reserve the right to change your consumer account to a business account if we determine that it ìs used for business purposes (meaning that the account is not used primarily for personal, family, or household purposes) Your account may be considered a business account if, among other reasons, it fits into one or more of the followìng examples: your account has a business name: deposits include credit card drafts; your account has over l00 wìthdrawals per month; deposits regularly contain over $2,500 in cash; or !our âccount has over 10 deposits per month lf we discontinue your type of accounl we may convert your account to another type of accounts We may also convert your account to another type of account based on our evaluation of how you use the account lf we convert your account, we will provide you with information containing the terms and conditions of your new account Changing Checking or Savings Product/Account Type. lf you should change from one checking or savings product/account type to another during the statement period, your account will be subject to the periodic charges and fees and requirements of the new product/account type for the entire period 15. APPLICABLE LAW Except as otherwlse provìded by law, thls Agreement and all accounts are governed by the laws of the state where we maintaln your account and applicable federal laws and regulations in effect from time to time and are subject to any applicable automated or other clearinghouse rules and regulations A determination that any provision of this Agreement ls unenforceable or invalid shall not affect the enforceability or validity of any other provisìon of this Agreement, For purposes of this Agreement, your account will be deemed to be maintained in the state where you opened your accouni Your account ìs considered to have been opened: if you opened your account ln person, at the branch office where you opened your account; if you opened your account by mail, at the location where the mail was received by us; or if you opened your account electronically (ìncluding by telephone) and your address ìs in a state where we have branch offices, in the state of your address at the time you opened your account; or if othenruise, in Alabama. Checks, Check prices vary according to the types of checks you select. You can obtain information on the current price of checks by contacting us. Check charges may vary from time to time without spæific notice to you You are responsible for verifying the accuracy of all informatìon shown on your checks and deposit tìckets. lf you find an errot, please notify us immediately. We are not liable for losses resulting from incorrætly printed checks or deposit tickets. lf you do not purchase your checks through us, we may charge a fee for each check that re1æts during processing due to poor quality or other reasons. You agree not to issue chæks with features or marks that obscure, alter or impair information on the front or back of a chæk or that otherwise prevents us or another bank from capturing such information during automated check processing. You agree to safeguard your blank and cancelled checks, and to take reasonable steps to prevent their unauthorized use. lf your checks are lost or stolen, you agree to notify us 12 immediately For security reasons, we reserve the right to close your account and transfer the balance to a new account. lf we do, all checks wrìtten but not yet paid may be returned to payees with notatìons such as'Account Closed' or "Refer to Makerl'You wlll be responsìble for issuing any replacement checks Closing Your Account. We reserve the right to close your account at any time, for any reason or for no reason, without the necessity of prior written notice lf we close your account, we will notify you by mail or telephone that we have closed your account unless your account has had a zero balance for thirty (3O days or more. lf you have agreed to ræeìve notlces electronically, we may notify you electronically. We may (but do not have to) mail you a check for the available balance in your account, or you may pick up a check for the available balance at our office WrÌtten notìce that the account has been closed and a check, if any, will be sent to any address shown on our ræords for you, or if the account is a joint account, to any account owner to whom we elect to send it Once we have closed your account, you agree that we can: . Refuse to honor any checks you have written or any other items which are presented to us for payment after we have closed your account . Refuse to collect any check you have deposited in your account, to collect any check you have deposited to your closed account, or to accept any automated deposit to your account . Assess any service charge otherwise applicable against any remaining balance in your account We are no[ responsible to you for any damages you may suffer as a result of your account be ng closed lt you attempt to make a deposit to an account we closed due to non-payment of an overdraft or otherwise, we may collect the deposit and set off your indebtedness to us and collect a service charge from the amount you deposited Any funds in excess of $1.00 will be returned to you. We reserve the right to refuse your rEuest to close your account, if your accounl is not in good standing lf you intend to close your account, you should notify us Simply reducing your account balance to $0 00 is insufficient notice and may result in additlonal fees charged to your account lf you close your account you are responsible for tranæctions you initiated or authorized including those that we receive after the account is closed. lndemnification. Except as otherwìse set forth in this Agreement, you agree to indemnify, defend and hold us harmless from all claims, actions, proceedings, fines, costs and expenses (including, without limitation, attorney fees) related to or arising out of: h) your actions and omissions in connection with your accounts or our services, and (b) our actions and omissions, provided that they are taken/omitted in accordance with this Agreement or your instructìons This provision shall survive the termination of this Agreement. Survival of this Agreement. All provisions of this Agreement, including, but not limited to the dispute resolution prov¡sions contained in Section 2, shall survive the termination of this Agreement or closure of your account(s) by elther party for actions arising in connectlon with this Agreement or your account(s) Amendments/Changes to this Agreement We may amend or change (add to, delete or alter)the terms of this Agreement from time to time upon giving prior notice to you Amendments of thls Agreement may include modifying and deleting exìsting provisions and addìng new provisions. We agree to provide you notice of any amendment (except an amendment benefiting you) at least thirty (30) days, or a longer perlod if requìred by law before that amendment becomes effective by mailing you notice of the amendment to the last address shown on our records, electronically rf you have agreed to receive such notices elætronically, by making the notice available with the periodic statement of your account (as applicable) by posting notice of the amendment rn our offices, or by posting notice of ihe amendment on the BBVA Compass webste or Online Banking (if applicable) We may, but are not required to, give you notice if the amendment will be to your benefit lf there is more than one account owner, we will send the notlce of amendment to only one of you. By continuing to maìntain your account, conductìng a transaction or obtaining services or products relating to thts Agreement or your account after the amendment becomes effective, you agree to the amendment of thrs Agreemen[ We also may, in our sole discretion, substitute services or discontinue certain kinds of services, products and accounts, and place restrictions on certain types of accounts. lf we discontinue the klnd of account you have, we can lransfer your account balance to another type of account ln that case, we wìll mail you a notlce at least thirty (30) days before the transfer takes effect By continuing to maintain your account, conduct a transaction, or obtain services or products from us after the transfer takes effect, you expressly agree to the change in the kind of account you have Severability. lf any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable for any reason, such holding shall not invalìdate or render unenforceable any other provìsions of this Agreement. To the extent permltted by applicable law the parties hereto waive any proviston of law which prohibìts or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minìmum extent necessary to render such provision enforceable. We may provtde you with an ATM card, check card or other device or security code to access your account elætronically or you may be required to create one or more security codes to access your accounl electronically Please review the agreement that governs the use of and that comes with the card, device or the security code carefully. You agree to use the card, device or sæurity code only in the manner and for the purposes described in the applicable agreement lf you attempt to use the card, device or security code in any other manner or for any other purpose, we may repct the transaction, or at our discretion, we may complete it without incuning any obligatlon to honor the same type of transaction in the future, We may terminate a card, device or security code at any time without notìce to you In order to prevent unauthorized access to your account, you agree to maintain the confìdentiality and security of the card, device or security code You agræ to notify us ìmmediately if you believe your card, device or security code may have become subject to unauthorized use, We may '13 suspend or cancel your card, device or security code even without ræeiving such notice from you if we suspect your card, device or security code is being used in an unauthorized or fraudulent manner, You agree that the use of the security code constitutes a commercìally reasonable security procedure for you You understand that anyone who obtains your security codes may access your accounts and may initiate transactions on your accounts. lf you permit any other person to use your card or your security code or other means to access your accounts, you are responsible for all transactions initiated by such person. BBVA Compass [4obile Banking. BBVA Compass ft/obile Banking Service allows customers to obtain certain services via a cell phone or other handheld mobile device, as described below (the lt/obile Banking Service"). This section of the Agreement contains the terms of use (Terms of Use")that spæifically apply to the Mobile Banking Service, BBVA Compass may assign or delegate any or all of its rights and responsibilities under these Terms of Use to one or more independent contractors or other thlrd party service providers, and any rights or responsibilities so assigned or delegated may be exercised or performed by elther BBVA Compass or its service provider By using the Mobile Banking Service, you agree to all of the terms and conditlons of this Agreement, spæifically including but not limited to these Terms of Use. ln order to access the lMobile Banking Service, you must have (i) a handheld device that can send and ræeive lnformation using the tæhnology that supports this lVobile Banking Service (an"Eligible Mobile Device') and (ii)all information required to enroll, which will be described in the BBVA Compass Mobìle Banking Applicatìon ('N/obile Application')at the tlme of enrollment Eligible lr/obile Devices necesæry to obtain the Mobile Banking Servìce are described on the Bank s Web site at wwwbbvacompass com/go/mobile BBVA Compass may update Eligible Mobile Devices from time to time The technical s[andards required to access and use the Mobile Banking Service (the N/obìle Technical Standards') vary among the types of Eligible Mobile Devices and telæommunications caniers that support this Service, The lt/obile Tæhnical Standards are described on the Bank's Web site, and may be updated from time to time to reflæt changes in the tæhnology that supports the Mobile Banking Service With the Mobile Banking Service, you may use your Eligible Mobile Device to access certain accounts that are made available to you through the Mobile Application (each, a "Mobile Account"), and you may use your Eligible Mobile Device to (i) view balances and recent transactions for each Moblle Account;(ii)make immediate, one-t¡me translers of funds between your Mobile Accounts;and (iiD access additionalservices that may be available through a l\/obile Application. Additional terms and conditions (Addendum" or'Addenda") may apply in order to access certain additional services that may be available through a Mobile Application. Your use of the Mobile Banking Servìce will be governed by this Agreement all Addenda and all other terms and conditions ln agreements governing accounts you may have with us or services we provide to you. We do not currently charge you any fee to register for or access the |\/obile Banking Servlce or to download any Mobile Application. However, you may incur charges to recelve internet, cellular or other data servlce on your Eligible Mobile Device You may also ìncur charges from your telæommunications canier when sending and receiving information in connection with your use of the Mobile Banking Service. You are responsible for maintaining the sæurity of your lVobile Device and any security codds) you have created for the purpose of accessing the Mobile Banking Service, and you are responsible for all transactions you initiate or authorize using the Mobile Banking Service, lf you allow any ærson to obtaìn or to use your Mobile Device or security code(s) you will have authorized that person to access your lVobile Accounts, and you agræ that you will be bound by any agreements that person accepts or acknowledges electronically through the Mobile Banking Service Notify us at once if the phone number for your Mobìle Device is changed or service to your Ît/oblle Device is terminated, or if you believe that your Mobile Device has been lost or destroyed, or if you believe that your sæurity code(s) has been compromised, or that your Mobile Device or any of your It/oblle Accounts have bæn accessed or used without your authorization, or if any æriodic statement shows a transaction on a Mobile Account that you did not make, including any unauthorized transaction made via the Mobile Bankìng Servlce. Contacting us immediately by telephone will help you avoid responsibility for unauthorìzed transactions and will help you and us reduce possible losses Call us aL 1-8002731057 or write to us at: BBVA Compass 0nline Banking Support P0 80x10566 Birmingham, AL 35296 You are granted a non-exclusive, nonlicensable, non-transferable, personal, limited llcense to install and use the |\/obile Appllcation only on an Eligible Mobile Device that you own or control, solely for your personal use and as expressly permitted herein lt is solely your responsibility to download and install any lVobile Applicatlon that is identified on the BBVA Compass Web site as requrred in order to access the Mobile Banking Service through your Eligible Mobìle Device BBVA Compass has no responsibility to notify you of any changes to or new releases for any required lt/obile Applicaflon. You acknowledge that from time to time, the N/obile Banking Service may be delayed, interrupted or unavailable for an ìndeterminate period of time BBVA Compass and its affiliates shall not be liable for any claim arising from or related to the N/obile Banking Service arising from any such delay, intenuption or unavailability. ln no event will BBVA Compass or its affiliates be liable for indirect, consequential or special damages, including lost profits, arising from or related to the Mobile Banking Service, even ìf such damages were reasonably foreseeable and notice was given regarding them These limitations will apply to all causes of action, whether arising from breach of contract, tort (including negligence) or any other legal theory. BBVA Compass disclaims all wanantles with respect to any Mobìle Application, whether express, implied or statutory, including without limitation ìmplied warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, timeliness, and non-infringement of third party rights. You release BBVA 14 Compass, its service provtders, and its affiliates from all claims and damages that may ar se from or relate to your use of any lVobrle Applicatron You agree not to reverse engineer, decompìle, disassemble or attempt [o learn the source code of any Mobile Application, and you may not redistribute any Mobìle Application. All rights not expressly granted to you herein are reserved by us. By identifying an Eligible N/obile Device for use with the lt/obile Banking Service, BBVA Compass does not ræommend, endorse or make any representation or warranty of any kind regarding the performance or operation of such device You are responsible for the selætion of an Eligible Mobile Device and for all issues relating to the operation, performance, and costs assæiated wi[h such device with your telecommunica[ions carrier. BBVA Compass and its service providers have no obligation to corræt any bugs, defects or enors in the lr/obile Banking Service or lvlobile Applications or to otherwise support, ma¡ntain, improve, modi|,y, upgrade or enhance the Mobile Banking Servlce or Mobile Applications Subject to applicable law or regulations, BBVA Compass may [erminate your use of the lMobile Banking Service, expand, reduce or suspend the type and/or dollar amounts of transactions allowed using the service, change the enrollment process, and/or change the transaction limìts associated with the It/obile Banking Service at any time in lts sole discretion without prior notice, You acknowledge and agree that BBVA Compass may collæt, transmit, store, and use tæhnical, location, and login or other personal data and related information, including but not limited to technical information about your device, system and application sof[ware, and peripherals, and information regarding your location, thatis gathered periodically to facilitate the provision of updates to lVobile Applications and product support, for securì[y reasons, for marketing purposes, and for other service to you (f any) related to, or in connec[ion with, the N/obile Banking Service. You agree that you will not use the lt/obile Banking Service or any services related thereto while driving. You assume all risk associated with the use of the Mobile Banklng Service, including the use of any Mobile Application. You agree that you will not use the lVobile Banking Service or any services related thereto for any purposes prohibited by United States law; and shall not use or otherwise export or re-export the Mobile Application(s) except as authorìzed by United States law and the laws of the jurisdiction in which the N/obile Application(s) was obtained You hereby represent and wanant (i) you are not læated in a country that is sulect to a U S Government embargo, or has been designated by the U S Government as a "terrorist supporting" country; and (ii) you are not listed on any U S Government lìst of prohibited or restric[ed parties ln any instance where you are not subject to this Agræment or the terms of this Agreement are deemed not to apply, then the laws of the state in which each l\4obile Account was opened, without rEard to its conflicts of laws rules, shall govern these Terms of Use By enrolling in the lVobile Banking Service you consenI to recerving and acceptlng the terms and conditions of these Terms of Use and any Addenda or amendments to it electronically, including, but not limìted to, via email, text message or through the Mobile Application. ln the event any amendment requires prior notice to you, we may notìfy you vla email at the email address you have provided to us for use wìth the Moblle Banking Service This email may include any new or different terms and condltions or provide you with a link to a Web site containing such new or different terms and condltions, For any information that you have agreed to ræeive electronically, we have no obligation to provide you or any other owner or authorized signer on the related account with a paper copy of the communicatlon unless and until your consent for elætronic communìcations is wlthdrawn as described below. We reserve the right, but assume no obligation, to provide a paper copy of any communicatìon that you have agræd to receive electronically. We may, but are not required to, make available paper copies of any communications that were provided to you electronically. We reserve the right, subject to applicable law to charge a fee to provide a paper copy of any communlcation previously delivered to you elætronìcally. You may call us at 1-8002731057 to find out about the availabìlity of a paper copy of any particular communication, and the amount of any fæ you will be charged for that paper copy. You may withdraw your consen[ to having these Terms of Use and any Addenda or amendments to it provided to you elætronically by contacting us by telephone at 1 800273-1057 However, if you do so, we will automatically unenroll you from the Mobìle Banking Service. lt is solely your responsibility to assure that the email address you have provided to us in connection with your use of the N/obile Banking Service is cunen[ and accurate. You may make changes to this email address by signing in to BBVA Compass Online Banking and accessing the Service Center tab Any change to your email address wìll be effective immediate y. BBVA Compass reserves the right to terminate your access to the Mobile Banking Service or any portion of it in its sole discretion, without notice and without limitation, excepl as may be required by law ATM Safety and Security. The following are some tips on exercising care when using an ATM: . lf there are any suspicious circumstances, do not use the ATIV. lf you notice anything suspiclous while transacting business at the ATM, cancel the transaction, pocket your Card and Leave Be careful when using the ATM and be aware of the sunoundings, espæially at night or in an isolated area Park near the ATN/ in a welllighted area. At night, have someone accompany you when æsslble. Do not approach a dark ATI\4. Do not accept assistance from anyone while using the ATM. Do not display your cash; pocket it and then count it later in the safety of your home or office Be sure to save your transaction receipts and check them against your statements regularly. Prepare deposlts at home to minimize your time at the ATM. lVake sure you ufeguard your PlN, Do not write your PIN on your Card or cany it in your wallet or purse, Always secure your Card just as you would cash, chæk and credit cards Do not to disclose or otherwlse make your Card or PIN available to others. lmmediately report all crimes to local law enforcement and to the ATM operator. 15 ELECTRONIC FUND TRANSFER DISCLOSURE STATEMENT The following disclosures are made in accordance with the federal law regarding electronic payments, deposits, transfers of funds and other electronic translers to and from your account(s) There may be limltations on account activìty that restrict your ability to make elætronic fund transfers Any such limits are disclosed ìn the appropriate agreements governing your account The separate agreement and dlsclosure statement governing your use of a BBVA Compass Chæk Card or BBVA Compass ATM card initially will be provided to you either at the time you open an account or by mail after you open an account, and ìt will control rf there is any conflìct between that particular agreement and disclosure statement and this Dlsclosure Statement. Any authorized signer on your account may act alone in conducting electronic fund transactions, regardless of the numberof requiredsignersindicatedontheaccountssignaturecard, lfyouuseanATN/thatisnotoperatedbyus,youmaybechargedafeebyus, the operator and/or the automated transfer network, 1. Definitions: Electronìc Fund Transfer Any transfer of funds, other than a transactìon originated by chæk draft or similar paper instrument, that through an electronic terminal, telephone, computer or magnetic tape to instruct us to debit or credit an account Electronic Fund is initiated Transfers include such electronic transactions as diræt deposits or withdrawals of funds, automated teller machine transfers, transfers ìnitiated by telephone, and Check Card transactlons. Preau[horized Electronic Fund Transfer An Electronic Fund Transfer that you have authorized in advance to ræur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account. 2. Your Liability: Authorized Transfers: You are liable for all Elætronlc Fund Transfers that you authorize, whether dirætly or indirectly. Unauthorized Transfers: Tell us at once if you believe your account or PIN is lost or stolen or has been or may be sublect to unauthorized Elætronic Fund Transfers Telephone us immediately at the number provided in Section 3 below to keep your possible losses to a minimum You could lose the money in your account(s) (plus the amount of funds available in an overdraft line of credit) lf you tell us within two Q) business all days after learning of the loss or theft of your Check Card, ATIV card, or other account access device, or after learning of any other unauthorized transfers from your account involving your Check Card, ATIV card, or other account access device, you can lose no more than $50 if Electronic Fund Transfers are made without your permission. For these transactions if you D0 NOT tell us withìn two 2) business days after learning of the loss, theft or unauthorized use, and we can establish that we could have prevented the unauthorized transfe(s) if you had told us in time, you could lose as much as $500 lf you are a California resident, you will not be liable for the $500 amount described in the prior sentence for unauthorized Check Card or ATlt/ transactions; however, if you fail to report an unauthorized use that appears on a periodic statement within 60 days of our transmittal of your periodic statement, then you may be liable for the amount of each unauthorìzed transfer that occurs after the close of the 60 days and before you provide notice to us, unless the delay in notifylng us was due to extenuating circumstances beyond your reasonable control Your ltabtltty ltmits for tlectronic Fund Transfers involving unauthorzed Vrsao Check Card purchases are different from your liabrlrty limits noted here Please refer to your agreement and dlsclosure s[atement for your Compass Check Card for these limits. Also, if your periodic account statement shows unauthorlzed transfers and you D0 N0T tell us within sixty (60) days after the statement was mailed to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfe(s) if you had told us in time. lf an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of a suspected lost or stolen card or other access device or of any other susæcted unauthorized transfe(s) the time periods sæcified in this Sætion 2 may be extended for a reasonable period 3. Our Telephone Number and Address: lf you believe your account(s) has bæn or will be subject to unauthorized Electronic Fund Transfers, CALL: 1 8002661277 and make the appropriate selætion from the voice menu, 0R WRITE: Compass Bank, Customer Service Department, PO Box 10566, Birmingham, Alabama 35296 4, Compass Bank Business Days: Monday through Friday, excluding holidays Account Access: The types of Elætronic Fund Transfers that you may make depend upon spæific account type(s) and the services which you obtain, as well as the spæiflc types of Electronic Fund Transfers you have authorized, 5. Charges: Except as may be provided by a specific agreement with us, there is no additional charge for making Pre-authorized Electronic Fund Transfers. HoweveI each Pre-authorized Electronic Fund Transfer will be subject to the rEular account service charges, if any, in accordance wrth the terms of lhe related account(s) in effect from time to time 6. Your Documentation of Transfers: a Receipts: Each time you make a transaction at our automated ieller machìne, you will have the option to obtain a receipt b Pre'authorized Transfers: lf you have arranged to have diræt deposits made to your account, you may call us to determine ìf the deposit has been made. lf you have arranged for regular payments of varyìng amounts to be made from your account, the person you agree to pay should tell you ten (10) days before each payment the amount of the payment and when it will be made c. Periodic Statements: You will receive a statement of your account each month you make an Electronic Fund Transfer Otherwise, you will rece¡ve a statement at least quarterly. Your periodic statement will show the details of any Elætronic Fund Transfer you made and the details of any Pre-authorized Transfers to or from your account that you instructed us to make, 7, Your Right to Stop Paymentr lf you have authorized us to make regular Pre-authorized Electronlc Fund Transfer payments out of your account, you may stop any payment by CALLING US at: 1 800 266:/277 and making the appropriate selætion from the voice menu, or by WRITING US 16 at: Compass Bank, Customer Service Department, P0 Box 10566 Birmingham, Alabama 35296. You must notify us in time for us to ræeive your requesl a[ least three (3) busìness days before the payment is scheduled to be made You must provide us with sufficient informalion lo identify the payment, as well as other information we may request lf you deliver your stop payment request by telephone, you must confirm your stop payment order to us in wrìting wlthin twenty-one 01)days of your oral stop payment order. An oral stop payment rEuest will not be binding on us after twenty-one (21) days if you fail to provide the required written confirmation We also require that you provide us wìthin twenty-one (21) days of our receìpt of your oral or written stop payment order a copy of your written notice to the payæ revoking the payees authority to electronically obtain payments from your account lf we do not ræeive a copy of that notice from you within twenty-one 01) days of our ræeipt of your oral or written stop payment request, your stop payment request will no longer be binding on us. In order to fulfill your stop payment request on any Pre-authorized Elætronic Fund Transfer, we may, in our discretion, but are not required to, stop all payments to the particular payæ, or we may, in our discretion, notify you that your stop payment request cannot be fulfilled other than by closing your account. lf you properly request us to stop payment and we fail lo do so, we will reimburse you for losses or damages you suffe¡ if any, caused by our failure to stop payment as requested Please see your agreement and disclosure statement for your Compass Check Card or Compass ATM card for different requirements that may apply to stop payment of any Pre-authorized Electronic Fund Transfer involving use of those cards or [he account numbers on those cards 8. Our Failure to Make Transfers: lf we do not complete a transfer to or from your account on time or ìn the corræt amount according to our agreement with you, we will reimburse you for any losses or damages that you suffer as a result of our failure to act according to our agreement with you However, there are some exceptions where we will not be liable, such as, but not limited to, the following: if through no fault of ours, other lhan exercise of our right of sel off, you do not have money in your account to cover the transfer if the transfer would exceed the available credit of any overdraft llne of credit you may have; if the money in your account is being held subjæt to legal process or other encumbrance restricting transfers to or from your account; if we have ræeived notice of a dispute as to the rights of parties to the accounts or their creditors 0r representatives and we have placed a hold on the account until resolution of the dispute; or if circumstances beyond our control prevent the transfer despite our reasonable præautions. 9. Disclosure of lnformation to Third Parties: We may disclose information to third parties about your account and the transfers you make as described in our Consumer Privacy Dìsclosure as amended or modified from time to time 10. ln Case of Errors or Questions About Your Electronic Transfers: Telephone or write us, as soon as you can, at the telephone number or address in Section 3 above, if you think your statement 0r receipt is wrong or if you næd more information about a transfer on the statement or receipt We must hear from you no later than sixty (60) days after we sent you the FIRST statement on which the error or problem appeared Your inquiry must include Your name and account number: AND a description of the error or the transfer you are unsure about, and as cleafly as you can, an explanation of why you believe there ls an enor or why you need more information; AND the dollar amount of the suspæted error. lf you tell us orally, we may requlre that you send us your inquiry in wrìting within ten (0) business days. We will investigate your inquiry and will correct any enor promptly. We wìll tell you the results of our investìgation within ten (10) buslness days ltwenty 0O) business days for claims on accounts open less than thirty (30) calendar daysJ after we hear from you: howeve[ we may take up to forty{ive (45) calendar days lninety (90) calendar days for claims on accounts open less than thirty €0) calendar days, foreign initiated transaction claims, and point-of sale transaction claìmsJ to investigate your questions. lf we need additional time to investigate, we will provìsionally re-credit your account within ten (10) business days ltwenty (20) business days for claims on accounts open less than thirty (30) calendar daysJ for the amount you think is in error so that you will have the use of the money during the time lt takes us to complete our investigation lf we ask you to put your ìnquiry in writing, and do not receive your written inquiry within ten (10) business days, we may choose not to provisionally re-credit your account. lf we find that there was no erro[ we will send you a wrltten explanation within three (3) business days after we finish our investigation You may ask for copies of the documents we used FUNDS AVAILABILITY DISCLOSURE 0ur policy is to make funds from your deposits available to you for the payment of checks presented through normal chæk collection channels on the first business day after the day we receive your deposit Elætronic diræt deposits will be available on the day we ræeive your deposit Once they are available, you can wìthdraw the funds ìn cash and we will use the funds to pay checks you have written, Certain exceptions to our funds avaìlability policy are described below Business Day. For determintng the availability of your deposits, every day is a business day except Saturdays, Sundays, and federal holidays. Cut'Off Time. Generally, if you make a deposit with one of our tellers before 2:00 p.m., or at one of our automated teller machines before 1:00 p.m., or at one of our ntght depository facilities before 700 a.m., on a business day we are open, we will consider that day to be the day of deposit Otherwìse, we will conslder that the deposlt was made on the next business day we are open However, in many locations, we offer later cuLoff times Please chæk for specific times that are posted in each banking center and displayed on ATM message screens. lf no time is posted in the banking cente¡ the culoff time for the bankrng center is the time the banking center closes, Delayed Funds Availability for 0utgoing Wire Transfers and the Purchase of Cashier s or Other 0fficial Checks and Money 0rders. Funds from deposited checks processed through the Federal Reserve System will be available for outgoing w¡re transfers and the purchase of cashiers or other official checks and money orders no later than the second business day after the day of your deposit 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 first business day after the day of your deposit. Depending on the type of chæk that you deposit, funds may not be available until the second business day after the day 17 of your deposit. Howevel the first $200 of your deposits will be made avaiiable on the first business day after the day otyour deposit lf we are not goìng to make all of the funds from your deposit avaìlable to you on the first business day after the day of deposit, we will notify you at the flme you make your deposit We will also tell you when the funds will be available. lf we dæide to delay availabllity after you have left the bank premìses, we will mail you a notice no later than the frrst business day after the day you make the deposit, or we decide to place the hold. Funds for the following deposits are available on the first business day after the day of deposit if you make the deposit in person to one of our tellers and ask them to place a stamp on your deposit slip indicating that special checks are included in the deposit: 1 State or local governmen[ checks that are payable dirætly to you, deposited in person into an account held by you, in a bank læated in the state that issued the chæks 2 Cashieis, certlfied and other checks drawn directly by a financial institution that are payable directly to you and deposited in person into an account held by you. ln addition, funds you deposiI by chæk (including those mentioned above) may be delayed for a longer period of time under the following circumstances: . We believe a check you deposited will not be paid . You deposited one or more chæks totaling more than $5,000 on any one day. . You redeposit a check that has been previously returned unpaid . You have overdrawn your account repeatedly in the last six months . There is an emergency, such as a failure of communicailons or computer 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. Special Rules for New Accounts lf you are a new customer, the following spæial rules will apply during the first 30 days your account is open. Funds from electronic diræt deposits to your account will be available on the day we receive the deposit. Funds from deposits of cash, wire transfers, and the first 95,000 of a days total deposits of cashieis, certified, teller's, travelers and federal, state and local government chæks will be available on the first busìness day after the day of your deposit if the deposit mæts certain conditions, For example, the chæks must be payable to you and you ask one of our tellers to place a stamp on your deposit slìp indicatlng that special checks are included in the deposit The excess over $5,000 will be available no later than the ninth business day after the day of your deposit If your deposit of these chæks (other than a U S Treasury check) is not made in person to one of our employees, the first $5,000 will not be avaìlable until the sæond business day after the day of your deposit Funds from all other check deposits will generally be available no later than the ninth business day after the day of your deposit. lf you need funds from a deposit at a specific time, you should ask us when the funds will be available. TAXPAYER IDENTIFICATION NUMBERS (Backup Withholding) The lnternal Revenue Service (RS) is responsible for ensuring that all persons pay the correct amount of federal income tax. ln order to accomplish this task, they must match the income reported by businesses for individuals (salary, interest, dividends, etc)to the income shown on individual tax returns. Taxpayer ldentification Numbers (for individuals, their Social Security Numbers) are used as the basis for matching these records. A federal law rEuires all payers of interest (such as a banO to report interest paid to lndividuals by Taxpayer ldentification Number. Therefore, you must provide your conect Taxpayer ldentification Number to us so that we may meet these reporting rEuirements. This law also stipulates that should a bank or other payer of interest not have your conect Taxpayer ldentiflcation Number on fìle, then 28% of interest, dividends and other payments made to you must be withheld and forwarded to the IRS to insure that taxes on this income are paid. This advance payment is known and referred to by the IRS as 'backup withholding' Backup withholding is not an additionaltax. Rather the amount of taxes you normally would owe will be reduced by the amount of tax withheld. lf an overpayment of taxes results from backup withholding, a refund may be obtained from the lRS. Unless the IRS has instructed us to withhold from your interest and dividend payments, you can avoid this 28% backup withholding by providing us with your conæt Taxpayer ldentification Number Additionally, you must certify that the Taxpayer ldentification Number you provide us is conect and that you have not been advised by the IRS that you are subjæt to backup withholding The IRS s empowered to impose penalties on you and us if your conæt Taxpayer ldentification Number is not provided (Please see'Penalties" later in this sætion ) HOW BACKUP WITHHOLDING WORKS Unless you are an exempt recipient ßee Exempt Recipient section) you are subject to backup withholding iÍ You fail to furnish us your Taxpayer ldentificatìon Numben OR the IRS notifles us that you furnished an inconæt Taxpayer ldentification Number OR the IRS notifies us that you are subjæt to backup withholding (under Section 3406(aX1XC) of the lnternal Revenue Codel) 0R for an interest or dividend account opened after December 31, 1983, you fail to certify to us that you are NOT subject to backup withholding, or fail to certify your Taxpayer ldentification Number ìs correct. How to Avoid Backup Withholding: When you open an account with us, we will provide you with the necessary forms to complete in order to provide and certify your Taxpayer ldentification Number T0 AVOID BACKUP WITHHOLDING, all you have to do is provide us with your correct Taxpayer ldentification Number and sign the certification statement to certify that the number you are providing rs corræt and that you are not 18 subject to backup wìthholding Taxpayer ldentification Number: lf you are an individual, your Taxpayer ldentifìcation Number is your Social Sæurity Number. lf you are not an individual, the number is your Employer ldentification Number. ln all instances, the number you give us should be the number of the owner of the account. Guidelines for Determining the Proper ldentification Number to Give to Compass: Social Security Numbers have nine digìts separated by two hyphens: i.e, XXX-XX-XXXX. Employer ldentificatìon Numbers have nine digits separated by only one hyphen: ie., 00 000OOO0 The table below will help you determlne the number to give to us, FOR THIS TYPE OF ACCOUNT GIVE THE SOCIAL SECURITY NUMBER OF: 1 An individualaccount The individual 2 Two or more individuals The actual owner of the account. This person's (joint / multiple party account) name should be listed first on the account 3 Husband and wife The first person listed on the account. (joint / multiple party account) 4 Custodian account of a minor The minor (Uniform Transfer to Minors Act) 5 Adult and minor The adult or, if the minor is the only (joint / multiple party account) contributor, the minor 6 Account in the name of guardian or The ward, minor, or incompetent person committee for a designated ward, minor or incompetent person /d The usual revocable savings trust The grantor-trustee account (grantor is also trustee) 7b So-called trust account is not a legal or The actual owner valid trust under State law B A valid trust or estate Legal Entity (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title) 19 1 NOTE:Section 3406(aXlXC)of the lnternal Revenue Code basically requires backup withholding if you have underreported to the IRS interest or dlvidend payments you received, or if you failed to file a Tax Return which would have included reportable interest or dividend payments. The IRS will notify you before they instruct us to withhold for either of these reasons Obtaining a Number: lf you don't have a Taxpayer ldentiflcation Number or you don't know your number, obtain Form SS-5, Application for a SocialSecurity Number Card, or Form SS 4, Application for Employer ldentification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. When you get a number, submit a new form to us. Exempt Recipients: Payees specifically exempted from backup withholding on ALL payments include the following: A corporation, A financial institut¡on An organization exempt from tax under Section 501(a) or an indivldual retirement plan. The United States or any agency or instrumentality thereof. A State the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. An lnternational organization or any agency or instrumentality thereol A dealer in securities or commodities registered in the U S or a possession of the U S A real estate investment trust A common trust fund operated by a bank under Section 584(a) An exempt charitable remainder trust, or a nonexempt trust described in Section 4947(aX1). An entity registered at all times under the Investment Company Act of 1940 A foreign central bank of issue Payments of dividends and patronage dividends not generally subject to backup withholding tnclude the following: > Payments to nonresident aliens subject to withholding under Section 1441. > Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner > Payments of patronage dividends where the amount received is not paid in money. > Payments made by certain foreign organizations. > Payments of interest not generally subject to backup withholding include the following: > Payments of interest on obligations issued by individuals Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payers trade or business and you have not provided your correct Taxpayer ldentification Number to the payer. > Payments of tax-exempt interest (including exempfinterest dividends under Section 852) > Payments described in Section 6059bX05)to nonresident aliens. > Payments on taxÍree covenant bonds under Section 1451 > Payments made by certain foreign organizations. > lf you are uncertaìn whether you qualify as an exempt recipient, call your accountant or the lnternal Revenue Service To avoid possible withholding, exempt recipients should complete the form(s) provided by Compass and should check the box captioned Exempt Reclpients The form should also contain your Taxpayer ldentification Numbel and the certification statement must be signed The form must then be returned to Compass. PENALTIES 1. Penalty for Failure to Furnish Taxpayer ldentification Number. lf you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure ìs due to reasonable cause and not to willful neglect. 2. Failure to Report Certain Dividend and lnterest Payments. lf you failto include any portion of an includible payment for interest, dividends or patronage dividends in gross income, such failure will be treated as being due to negligence and will be subject to a penalty of 5% on any portion of an underpayment attributable to that failure unless there ls clear and convincing evidence to the contrary. 3. Civil Penalty for False lnformation With Respect to Withholding. lf you make a false statement with no reasonable basis that results in no imposition of backup withholding, you are subject to a penalty of 9500 4, Criminal Penalty for Falsifying lnformation. Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment 20 IMPORTANT INFORMATION ABOUT YOUR CHECKING ACCOUNT (Check 21) Substitute Checks and Your Rights What is a substltute check? To make check processing faster, federal law permits banks 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 debìts to your account However, you have rights under other law with respect to those transactìons. What are mv riohts reoardino substitute checks? ln 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, NSF 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 an interest-bearing account lf your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law lf you use this procedure, you may receive a refund of up to $2,500 or the amount of the substitute check, whichever is less, (plus interest if your account earns interest) within 10 business days after we received your claim and the remainder of your refund (plus interest if your account earns interes0 not later than 45 calendar days after we received your claim 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? lf 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 at:Compass Bank, Attention: Electronic Banking P0. Box 10566, Birmingham, AL 35296 or telephone number 1-BOO- COIVPASS. You must contact us within 40 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 lf 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 receìved 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: the check number, the name of the person to whom you wrote the check and the amount of the check 21 Revision Feb,2012. Al Nova Branches Only BBVA Compass is a trade name of Compass Bank, a member of the BBVA Group. Compass Bank, Member FDIC. 99-36-2067I oGDO !r OtÊ¡
I I
2. Dispute Resolution 2
3. Account Operations 4
4. Account Statements and Notices 6
5. Account Transactions 7
6. Deposits, Collections, and Payment of ltems B
B. Sub-accounts 11
9. Dormant and Abandoned/Unclaimed Accounts 11
11. Waivers 12
12. Other Services 12
14. Changes to Account Status 12
15. Applicable Law 12
16. Additional Provisions 12
2. DISPUTE RESOLUTION
5. ACCOUNT TRANSACTIONS
6. DEPOSITS, COLLECTIONS, AND PAYMENT OF ITEN4S
8. SUB-ACCOUNTS
13. INTEREST INTEREST REPORTING
14. CHANGES TO ACCOUNT STATUS
16. ADDITIONAL PROVISIONS
17. ELECTRONIC BANKING SERVICES
Francisco Calleja-Ahedo v. Compass Bank (Francisco Calleja-Ahedo v. Compass Bank) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.