Overdraft Protection Agreement and Disclosure Statement

Please read this Agreement carefully and keep it for your records. This Agreement contains the terms and conditions of your Overdraft Protection Line of Credit with Compass Bank and amends your Consumer Deposit Account Agreement to add a fee for this service (see Section 7.b below). The application you signed or otherwise submitted (including the accompanying federal and state notices) is part of and is incorporated into this Agreement. You do not need to separately sign this Agreement. By signing or otherwise submitting the application, you are considered to have signed this Agreement. By drawing on or permitting others to draw on the Credit Line, you accept and agree to the terms of this Agreement. However, you may cancel this Agreement before drawing on the Credit Line if you comply with Section 10 below and the Bank receives from you a written termination notice. Only one Overdraft Protection Line of Credit is permitted per Checking Account at a time.

1. Definitions:

  • Daily Interest Charge - means the amount of interest charged for each day of the billing cycle.
  • Advance - means funds drawn from your Credit Line to cover an overdraft in your Checking Account and the related Overdraft Protection Fee described in Section 7 below.
  • Available Credit - means an amount equal to your Credit Limit, less the amount of any outstanding advances, finance charges and other debits posted to your Credit Line.
  • Daily Balance - Daily balance shall consist of the beginning balance on your Credit Line (excluding any unpaid finance charges) plus all Advances and other debits posted to your Credit Line through that day, less all payments and credits posted to your Credit Line through that day.
  • Bank - means Compass Bank, it successors and assigns.
  • Billing Cycle - means a period of approximately thirty (30) days commencing on the beginning of a particular Bank business day of one month and ending on the close of the Bank business day immediately preceding the corresponding Bank business day of the following month.
  • Checking Account - means the Compass Bank checking account that you have designated to receive the benefit of the overdraft protection provided under this Agreement.
  • Checking Account Agreement - means the consumer deposit account agreement that governs your Checking Account.
  • Credit Limit - means the amount of credit available to you under the Credit Line. Your Credit Limit, which initially is communicated to you upon your approval for a Credit Line, may be increased or decreased at any time, as provided in this Agreement.
  • Credit Line - means the Overdraft Protection Line of Credit tied to your Checking Account.
  • Overdraft Protection Fee - means the service charge described in Section 7 below.
  • You and your - means each person who has applied for the Credit Line and any other person who has agreed to be responsible for the Account.

2. Overdraft Protection - Advances and Fees:

Whenever the Bank receives one or more items that would create an overdraft in your Checking Account (such as a check, Compass Bank Visa Check Card charge, preauthorized electronic fund transfer, ATM withdrawal or a fee or other service charge), regardless of whether the item was executed or authorized by you, your Authorized Agent or any other Authorized Agent or any other Authorized Signer (as those terms are defined in your Account Agreement) on your Checking Account, the Bank shall consider those items to be your request for an Advance from your Credit Line.

If the amount of your Available Credit is sufficient to cover an overdraft caused by payment of one or more items, the Bank will make an Advance in the amount of the overdraft (rounded up to the nearest dollar) and the related Overdraft Protection Fee, which is described in Section 7 below.

If the amount of your Available Credit is not sufficient to cover an overdraft, the Bank may, solely at its option:

  • a. Decline payment of any item;
  • b. Make an Advance in the amount of the Available Credit and pay the item into overdraft. This means that you may pay fees and interest related to the Advance on your Credit Line, plus applicable service charges for handling and processing items against insufficient funds (including any NSF fee(s) and Extended Overdraft fee(s); or
  • c. Authorize payment of one or more items against your Checking Account, without making any Advance from your Credit Line. If the Bank chooses to authorize payment against your Checking Account (but not your Credit Line) you shall pay, without further notice or demand, all applicable service charges for handling and processing items presented against insufficient funds (including any NSF fee(s) and Extended Overdraft fee(s)) and the amount of any overdraft, as provided in your Checking Account Agreement; or
  • d. Authorize payment through an Advance on your Credit Line, even though payment causes the total balance of your Credit Line (including interest and Overdraft Protection Fees) to exceed your Credit Limit.

If the Bank chooses to decline payment or to authorize payment against your Checking Account, as described in a., b. or d. above, you shall pay, without further notice or demand, all applicable service charges for handling and processing items presented against insufficient funds (including any NSF fee(s) and Extended Overdraft fee(s)) and the amount of any overdraft, as provided in your Checking Account Agreement. The Bank is not liable for either paying or declining to authorize payment for items that exceed the amount in your Checking Account.

3. Your Basic Obligations:

By drawing on or permitting others to draw on the Credit Line, you agree:

  • a. To assume responsibility and liability, within the limitations of applicable law, for the principal amount of all Advances and other debits to the Credit Line, and all related interest and fees;
  • b. To pay, at such places and times which the Bank designates, the principal amount of all advances and other debits to the Credit Line, and all related interest and fees, in accordance with the terms and conditions of this Agreement; AND
  • c. To promptly notify the Bank of any change in your mailing address or principal residence.

4. Monthly Statements:

For each Billing Cycle, the Bank will send you a periodic statement of your Credit Line, which may be included as part of the statement for your Checking Account. You agree promptly to review the statement of your Credit Line and to report any errors, unauthorized use, forgeries or alterations to the Bank. Among other information, your statement will show the outstanding balance of your Credit Line at the beginning and the close of the Billing Cycle, any Advances from or interest imposed on your Credit Line during that Billing Cycle, your Credit Limit and Available Credit, the minimum payment due for that Billing Cycle, the date on which the Bank automatically will deduct the minimum payment from your Checking Account if the Bank has not already received this payment, as provided in Section 5 below.

5. Minimum Payment Required:

If, at the close of any Billing Cycle, you have an outstanding balance on your Credit Line, you agree to pay the Bank a minimum payment within twenty-one (21) days after the close of that Billing Cycle. If your closing balance is $10 or less, the minimum payment will be the entire balance due on your Credit Line. If your closing balance is $10 or more, the minimum payment will be an amount equal to four percent (4%) of the total balance or $10, whichever is greater, plus any amount in excess of your Credit Limit and any amount past due from the previous Billing Cycle.

If the Bank has not received this minimum payment within twenty-one (21) days after the close of that Billing Cycle, you authorize the Bank automatically to deduct the required minimum payment from your Checking Account at the close of the twenty-first (21st) day or, if the twenty-first (21st) day is not a business day, at the close of the next business day. You agree that, if the Bank is initially unable to obtain the full amount of any minimum payment from your Checking Account, the Bank may choose (but has no obligation) to continue attempting to deduct the uncollected portion of that minimum payment from your Checking Account until the Bank receives that entire minimum payment. You also agree that, in this situation, the Bank has no obligation to make an Advance in order to collect any minimum payment from your Checking Account. You may pay more than the required minimum payment and, at any time, you may pay the full amount you owe the Bank without incurring any additional charge as a result of that payment.

Manner of Payment: All payments must be made in United States dollars. If you mail any payment to the Bank that payment must be addressed to the address shown on your periodic statement to be credited to your Credit Line (except as provided in Section 15 below), and you agree not to send cash. If the Bank allows you to make payments in any other manner, including at a branch or an ATM, or if the Bank accepts a payment and you have not followed the Bank's instructions for payment, the Bank will credit your payment to your Credit Line within five (5) business days after the Bank's receipt of it. Any required procedures for making payments will be included in your periodic statement, and the Bank may change these procedures at any time and without notice to you. The Bank may electronically present and re-present items (such as checks) that it receives as payment on your Credit Line, as allowed by applicable law and clearinghouse rules.

Payment Allocation: Subject to applicable law, the Bank reserves the right to allocate payments to your Credit Line among interest, Advances, and any other charges or amounts due in any manner the Bank chooses.

6. Periodic Interest Charge:

You agree to pay interest based on the Daily Balance of your Credit Line during each Billing Cycle. To calculate the interest for each Billing Cycle, the Bank multiplies the Daily Balance by the daily interest rate provided below to arrive at each Daily Interest Charge, and then totals all Daily Interest Charges accrued during the Billing Cycle. The resulting interest charge is posted to your account on the last business day of the Billing Cycle. Interest begins to accrue when an Advance is posted to your Credit Line, and there is no grace period in which to repay the balance on your Credit Line before finance charges will be imposed. The daily periodic rate used to determine this interest is 0.0575% for a 365-day year and 0.0573% for a 366-day year and the ANNUAL PERCENTAGE RATE is twenty-one percent (21%).

The following language is only applicable if you are a "covered borrower" or a "dependent" of a "covered member" as those terms are defined under the Military Lending Act, 10 U.S.C. 987, 32 CFR Part 232:

Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependent may not exceed an annual percentage rate of 36 percent. This rate must include, as applicable to the credit transaction or account: The costs associated with credit insurance premiums; fees for ancillary products sold in connection with the credit transaction; any application fee charged (other than certain application fees for specified credit transactions or accounts); and any participation fee charged (other than certain participation fees for a credit card account).

7. Overdraft Protection Fee:

In your Checking Account Agreement, you agreed to pay a service charge for any item presented against insufficient funds in your Checking Account. With this Agreement, you and the Bank agree your Checking Account Agreement is modified to provide that, for each day on which:

  • a. Any item is presented against insufficient funds in your Checking Account, and
  • b. The Bank makes one or more Advances of funds from your Credit Line to cover any of these items, then you agree to pay an Overdraft Protection Fee of $12 ($7 if the Checking Account is maintained in California). The Bank will charge an Overdraft Protection Fee only once for any day on which an Advance is made, regardless of the number of Advances made on that day. Each Overdraft Protection Fee will be posted to your Checking Account, and the Bank will make an Advance from your Credit Line to cover the amount of this Fee. This Overdraft Protection Fee is charged under your Checking Account Agreement, which is governed by the laws of the state where the Bank maintains your Checking Account and applicable federal law.

If you are a “covered borrower” or a “dependent” of a “covered member” under the Military Lending Act and have questions regarding your eligibility, please contact us at 1-800-239-1996.

8. Default:

Subject to any restrictions of applicable law, you will be in default and the Bank may terminate your privileges under this Agreement and/or demand immediate payment of the entire amount you owe the Bank without giving you any notice if:

  • a. For any Billing Cycle, you fail both to pay a required minimum payment when due and to maintain funds in your Checking Account sufficient to enable the Bank automatically to deduct this payment at the close of the twenty-first (21st) day following the close of that Billing Cycle, as provided in Section 5 above.
  • b. Under this Agreement or any other agreement with the Bank, you fail to make any other payment when due or to perform any other obligation to the Bank;
  • c. You exceed your Credit Limit;
  • d. You fail to do anything this Agreement requires;
  • e. You do anything this Agreement prohibits;
  • f. You file or have filed against you a petition under the federal Bankruptcy Code;
  • g. You die, become legally incompetent or are imprisoned; or
  • h. You provide the Bank with false credit information, false signatures or make any misrepresentations in opening or maintaining the Credit Line.

If the Bank terminates your privileges under this Agreement, your payment of any amounts owed under this Agreement will not automatically reinstate these privileges, and you will need to reapply for a Credit Line in order to obtain overdraft protection for your Checking Account.

9. Conditions Under Which Attorneys' Fees And Other Collection Costs May Be Imposed:

To the extent permitted by applicable law, you shall be liable to the Bank for all costs and damages resulting from any breach of this Agreement. If you fail to pay any amounts due under this Agreement and your debt is referred to one or more attorneys who are not salaried employees of the Bank for collection or other enforcement proceedings, whether by suit or otherwise, and the unpaid balance of your debt exceeds $300, you agree to pay all reasonable expenses permitted by applicable law, including but not limited to, court costs and attorneys' fees.

10. Termination and Suspension:

Subject to any restrictions of applicable law, the Bank may terminate or temporarily suspend your right to obtain Advances from your Credit Line at any time without notice to you or liability to the Bank. You agree that you will not obtain or attempt to obtain any Advance after you have been notified that your privilege to use your Credit Line has been terminated or suspended. You may terminate your right to obtain Advances at any time by notifying the Bank in writing of your intent to do so. If you are not in default at the time of termination, you may pay off the balance due on your Credit Line according to the terms and conditions of this Agreement. Neither termination nor suspension will affect your existing obligations or the Bank's rights or remedies under this Agreement, including the Bank's right to change the terms of this Agreement from time to time. Except as otherwise provided in this Agreement, you will remain liable for all debits posted to your Credit Line in connection with any Advance made prior to the time your right to obtain Advances from your Credit Line is terminated or suspended.

11. Changing This Agreement:

The Bank may change the terms of this Agreement at any time by giving you notice of the change, as required by applicable law. These changes may include modifying or deleting existing terms and adding new terms. Subject to the requirements of applicable law, any changes to this Agreement will become effective at the time stated in the Bank's notice to you and the amended terms of the Agreement will apply to all outstanding unpaid balances you owe the Bank as well as new charges, unless you terminate your right to use the Credit Line on or before the date provided in the Bank's notice. No change to any term or condition of this Agreement shall be effective unless accepted or authorized by the Bank in writing.

12. Governing Law/Severability:

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7 ABOVE, THIS AGREEMENT AND YOUR CREDIT LINE, AND ANY CLAIM, DISPUTE OR CONTROVERSY ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR CREDIT LINE, WHETHER BASED ON CONTRACT, TORT, FRAUD AND OTHER INTENTIONAL TORTS, STATUTE, REGULATION, CONSTITUTION, COMMON LAW AND/OR EQUITY, ARE GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA (WITHOUT REGARD TO INTERNAL PRINCIPLES OF CONFLICTS OF LAW) AND APPLICABLE FEDERAL LAW. THE LEGALITY, ENFORCEABILITY AND INTERPRETATION OF THIS AGREEMENT AND THE AMOUNTS CONTRACTED FOR, CHARGED AND RECEIVED UNDER THIS AGREEMENT WILL BE GOVERNED BY THESE LAWS. THIS AGREEMENT IS ENTERED INTO BETWEEN YOU AND THE BANK IN ALABAMA. THE BANK MAKES DECISIONS ABOUT GRANTING CREDIT TO YOU FROM, EXTEND CREDIT TO YOU UNDER THIS AGREEMENT FROM, AND ACCEPT YOUR PAYMENTS IN ALABAMA. IF ANY PROVISION OF THIS AGREEMENT IS FOUND TO BE INVALID OR UNENFORCEABLE, THE REMAINING PROVISIONS WILL REMAIN IN FULL FORCE AND EFFECT.

13. Credit Evaluation and Reporting:

You promise that all information you have given the Bank, whether on the application for the Credit Line or otherwise, is true. You agree that the Bank may re-evaluate your financial condition and credit standing at any time and for any reason, including periodically to determine whether to renew your Credit Line for any additional period. The credit re-evaluation may include obtaining a current consumer credit report or asking you for current financial information, including accurate, up-to-date information on your assets and liabilities, true copies of your signed federal income tax returns, and verification of your employment and income. Based upon such a review, the Bank also may increase or lower your Credit Limit at its discretion and upon notice to you in accordance with applicable laws and regulations. You agree to permit and cooperate with any investigation of your credit record. A negative credit report reflecting on your credit record may be submitted to one or more credit reporting agencies if you fail to fulfill your obligations under this Agreement.

Inaccurate Information: If you believe that the Bank has information about you that is inaccurate or that the Bank has reported or may report to a credit reporting agency information about you that is inaccurate, please notify the Bank of the specific information that you believe is inaccurate in writing at the following address: Compass Bank, P.O. Box 2210, Decatur, AL 35699.

14. Telephone Monitoring:

The Bank treats every customer call confidentially. To assure that you receive accurate and courteous customer service, on occasion your call may be monitored by a second employee and/or recorded, and you agree to this monitoring and recording.

15. Irregular Payments/Delay in Enforcement:

Subject to applicable law, the Bank reserves the right, at any time and in its sole discretion, to delay imposing or not to impose part or all of any fee or other amount permitted by this Agreement or to delay exercising or not to exercise any of its other rights under this Agreement and, should the Bank do so, the Bank will not have waived its right to impose such fee or other amount or to exercise the right as set forth in this Agreement in the future. Without limiting the foregoing, and subject to applicable law, the Bank may, at its option: (a) accept late or partial payments, (b) agree to extend the due date of any payment due under this Agreement for any length of time; and/or (c) release any other person responsible under this Agreement, all without notifying you and without releasing you from your obligation to pay in full all amounts owing under this Agreement and to perform all of your other obligations under this Agreement. To the extent allowed by applicable law, the Bank may take other action not described in this Agreement, and by doing so the Bank does not limit and will not lose its rights under this Agreement.

No payment shall operate as an accord and satisfaction without the Bank's prior written approval. You agree that the Bank may accept, endorse, and collect any payment that is marked "payment in full" or that is tendered with other conditions or limitations without changing any of its rights or your obligations under this Agreement (including your obligation to pay in full all amounts owed to the Bank) if: (i) the Bank receives the payment at any location and its records do not reflect an existing dispute of an amount owed by you to which the payment relates, or (ii) the Bank receives the payment at any location other than the special payment address provided in this Section below, and the Bank's records show an existing dispute of an amount owed by you to which the payment relates. You agree that, for the purposes of this Section, the Bank's determination and records regarding the existence of a dispute by you of any amount owed by you will be conclusive, except in the event that you prove otherwise by written evidence. If you dispute any obligation under this Agreement, including any payment obligation, you agree to mail or deliver all written communications concerning such disputes, including any check or other payment instrument that is marked "payment in full" or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount, to: Compass Bank, P.O. Box 2101, Decatur, AL 35602-2101.

The fact that the Bank may at any time make an Advance in excess of your Credit Limit or at a time when you are in default under this Agreement does not obligate the Bank to do so again.

16. Dispute Resolution:

The following provision(s) is not applicable if you are a "covered borrower" as that term is defined under the Military Lending Act, 10 U.S.C. 987, 32 CFR Part 232

  1. Subsection A. applies if you reside in a state other than California and we do not maintain your deposit account attached to your Overdraft Protection Line of Credit 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 Overdraft Protection Line of Credit or any transactions involving your Overdraft Protection Line of Credit, or any service or product related to your Overdraft Protection Line of Credit, either you or the Bank can choose to have that dispute resolved by binding arbitration. This arbitration 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 participate as a class representative or member of any class of claimants for any claim subject to arbitration. Arbitration is a more informal proceeding in which disputes are decided by one or more neutral arbitrators who issue a binding ruling in the form of an award. You and the Bank understand that discovery and other procedures in arbitration may be more limited than discovery in court proceedings and that the ability to modify, vacate, or appeal an award by an arbitrator(s) is strictly limited.

    You and the Bank agree, upon written demand made by you or the Bank, to submit to binding arbitration all disputes, controversies, and claims, whether based on contract, fraud, tort, intentional tort, statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to (a) this Agreement, your Overdraft Protection Line of Credit, any transaction involving your Overdraft Protection Line of Credit, any service or product related to your Overdraft Protection Line of Credit, or any advertisements, promotions, or oral or written statements related to this Agreement or your Overdraft Protection Line of Credit, (b) 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 arbitration provision), (c) your relationship with the Bank that relates to this Agreement or any other agreement or relationship you have with the Bank that is not also subject to a different agreement to arbitrate, or (d) the validity, interpretation, scope or enforceability of this Agreement or the interpretation or scope of the Arbitration Clause (collectively, a "Claim"). 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 court. At the option of the first to commence arbitration, you or the Bank may choose to have the arbitration conducted by JAMS ADR ("JAMS") or the American Arbitration Association ("AAA"), or you and the Bank 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 to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the construction, interpretation, and enforceability of this Agreement notwithstanding any other choice of law provision contained in this Agreement.

    Either you or the Bank may initiate arbitration by giving written notice of the intention to arbitrate to the other party and by filing notice with JAMS or the AAA in accordance with the Rules in effect at the time the notice is filed. The notice shall set forth the subject of the dispute and the relief requested, at a minimum. The demand for arbitration may be made before or after commencement of any litigation. You should contact the AAA at 800-778-7879 or www.adr.org or JAMS at 800-352-5267, www.jamsadr.com for more information about arbitration. If for any reason the AAA or JAMS is unable or unwilling to serve as arbitration administrator, or you and the Bank are unable to agree on another arbitrator, we will substitute another national or regional 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 limitations, 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 join together in a dispute with anyone other than persons who use your account, although this limitation does not affect the ability of a purely governmental entity to institute any enforcement action. Even if other people have disputes similar to a dispute that you and the Bank have, those people and their disputes cannot be part of any arbitration between you and the Bank. A Claim by, or on behalf of, other persons will not be considered in, joined with, or consolidated with, the arbitration proceedings between you and the Bank, and a Claim may not be arbitrated on a class action, private attorney general, or other representative basis. Notwithstanding anything to the contrary in this Agreement, any dispute regarding the prohibitions in this paragraph or about the enforceability of the arbitration clause shall be resolved by a court and not by the arbitrator(s).

    Where the aggregate of all Claims by both you and the Bank does not exceed $250,000, any expedited procedures provided in the Rules ("Expedited Procedures") shall apply and a single arbitrator shall decide the Claims.

    Where the aggregate of all Claims by both you and the Bank exceeds $250,000, a panel of three arbitrators shall decide all Claims. Each arbitrator, whether or not acting under Expedited Procedures, shall be an active member in 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 the Bank agree that the arbitrator(s): (a) shall limit discovery to non-privileged matters directly relevant to the arbitrated dispute; (b) shall grant only relief that is based upon and consistent with substantial evidence and applicable substantive law; (c) shall have authority to grant relief only with respect to Claims asserted by or against you individually; (d) shall provide a brief written 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 $50,000, the Bank will pay to the AAA or JAMS the portion of the arbitration filing fee that exceeds the cost of filing a lawsuit in the federal court where you live. Upon written request by you, the Bank may elect, at the Bank's sole discretion, to pay or advance some or all of any remaining arbitration fees and other costs. The arbitrator will decide whether the Bank or you ultimately will be responsible for paying any filing, administrative or other fees in connection with the arbitration. If you are the prevailing party in the arbitration, the arbitrator(s) may order the Bank to pay some or all of your attorney, expert, and/or witness fees. Any arbitration proceedings shall be conducted in the federal judicial district where we maintain your deposit account that is connected to your Overdraft Protection Line of Credit. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.

    If you or the Bank are seeking to bring a joined, consolidated, or class action and if the portion of this arbitration 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. If any portion of this arbitration 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 provision will remain valid and enforceable including the prohibition against the arbitration of joined, consolidated or class actions. Nothing in this arbitration provision shall limit your or the Bank's right, whether before, during, or after the pendency of any arbitration proceeding, to exercise any self-help remedies, such as set-off or repossession and sale of collateral, or to obtain provisional remedies (including but not limited to, injunctive relief or interpleader relief). You and the Bank agree that the taking of these actions or any other participation in litigation by you or the Bank does not waive any right that either you or the Bank have to demand arbitration at any time with respect to any subsequent or amended Claim filed against you or the Bank after commencement of litigation between you and the Bank. This arbitration provision shall survive termination of this Agreement and the closing of your Overdraft Protection Line of Credit.

    Waiver of Jury Trial: This provision limits your rights to a jury trial. You should review this section carefully. If (i) neither you nor the Bank seek to compel arbitration of any dispute we have related to this Agreement, your Overdraft Protection Line of Credit, or any transactions involving your Overdraft Protection Line of Credit, or (ii) some or all of the arbitration clause is unenforceable and you and the Bank are in a dispute in a court of law, then you and the Bank agree 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. In any action between you and the Bank 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.

  2. Subsection B. applies if you either reside in California or the Bank maintains your deposit account attached to your Overdraft Protection Line of Credit in California.

    Judical Reference & Waiver of Jury Trial: 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 Overdraft Protection Line of Creditor any transactions involving your Overdraft Protection Line of Credit, or any service or product related to your Overdraft Protection Line of Credit, it will be resolved by judicial reference pursuant to the provisions of the California Code of Civil Procedure, Sections 638-645.1 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 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 receives the evidence at a hearing and then issues a statement of decision upon which a judgment is based. You and the Bank 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 issue all legal and equitable relief appropriate under the circumstances before him/her.

    Either you or the Bank may initiate judicial reference by giving written notice of the intention to initiate judicial reference to the other party and by proceeding in accordance with California Code of Civil Procedure Section 638.

    You and the Bank agree, upon written demand made by you or the Bank, to submit to judicial reference all disputes, controversies, and claims, whether based on contract, fraud, tort, intentional tort, statute, regulation, constitution, 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 Overdraft Protection Line of Credit, any transaction involving the Overdraft Protection Line of Credit, any service or product related to your Overdraft Protection Lint of credit, or any advertisements, promotions, or oral or written statements related to this Agreement or the Overdraft Protection Line of Credit, 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 judicial reference provision), or the validity, interpretation, and scope of this Agreement (collectively, a "Claim"). 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 court.

    You and the Bank 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 Civil Procedure 640 and shall preside over the reference proceeding and try all issues, whether of fact or law. If 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, including submitting to the court up to three nominees who are retired state or federal court judges.

    You and the Bank shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge.

    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.

    You and the Bank agree that the referee shall not have any authority to require, as part of any relief granted, that you and the Bank continue any relationship we may have under this Agreement or otherwise; and shall provide a statement of decision stating the disposition of each claim and a concise written explanation of the basis for the award. The referee's statement of decision shall contain written findings of fact and conclusions of law, and the court shall enter judgment thereon pursuant to California Code of Civil Procedure Sections 644(a) and 645. The decision of the referee shall then be appealable as if made by the court.

    Unless inconsistent with applicable law, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the judicial reference. Except for any filing fee if you initiate judicial reference proceedings, the Bank will pay all of the remaining judicial reference fees and other costs, including the referee's fees where required by law. The referee will decide whether we or the Bank ultimately will be responsible for paying any fees or other costs in connection with the judicial reference. Any judicial reference proceedings shall be conducted in the federal judicial district of your residence, and you will be given the opportunity to attend the proceeding and be heard. Judgment upon any statement of decision rendered in judicial reference may be entered by the court that appointed the judicial referee or any other court with jurisdiction.

    If any portion of this judicial reference provision is deemed invalid or unenforceable, the remaining portions of this judicial reference provision will remain valid and enforceable. This judicial reference provision shall survive termination of this Agreement and the closing of your Account.

    Attorneys' Fees. In any action between you and the Bank regardless of whether it is proceeding in court or in judicial reference, unless inconsistent with applicable law, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the matter.

17. Overdraft Protection Billing Rights (Keep This Document For Future Use):

This notice contains important information about your rights and the Bank's responsibilities under the Fair Credit Billing Act

NOTIFY THE BANK IN CASE OF ERRORS OR QUESTIONS ABOUT YOUR STATEMENT: If you think your statement is wrong, or if you need more information about a transaction on your statement, write the Bank on a separate sheet at the address listed on your statement. DO NOT write to the Bank on the statement or on any instrument used to make a payment. Write to the Bank as soon as possible. The Bank must hear from you no later than sixty (60) days after the Bank sent you the FIRST statement on which the error or problem appeared. You can telephone the Bank, but doing so will not preserve your rights. In your letter, give the Bank the following information:

  • Your name and account number;
  • The dollar amount of the suspected error;
  • Describe the error and explain, if you can, why you believe there is an error.
  • If you need more information, describe the item you are not sure about.

You can stop the automatic deduction of any required minimum payment from your Checking Account if you think your payment amount is wrong. To stop the payment, your letter must reach the Bank at least three (3) business days before the automatic deduction is scheduled to occur. YOUR RIGHTS AND THE BANK'S RESPONSIBILITIES AFTER THE BANK RECEIVES YOUR WRITTEN NOTICE: The Bank must acknowledge your letter within thirty (30) days, unless the Bank has corrected the error by then. Within ninety (90) days, the Bank must either correct the error or explain why the Bank believes the statement was correct.

After the Bank receives your letter, the Bank cannot try to collect any amount you question, or report you as delinquent. The Bank can continue to bill you for the amount you question, including finance charges, and the Bank can apply any unpaid amount against your Available Credit. You do not have to pay any questioned amount while the bank is investigating, but you are still obligated to pay the parts of your statement that are not in question.

If the Bank finds that it made a mistake on your statement, you will not have to pay any finance charges related to any questioned amount. If the Bank didn't make a mistake, you may have to pay finance charges, and you will have to make up any missed payments on the questioned amount. In either case, the Bank will send you a statement of the amount you owe and the date that it is due.

If you fail to pay the amount that the Bank thinks you owe, the Bank may report you as delinquent. However, if the Bank's explanation does not satisfy you and you write to the Bank within (10) days telling it that you still refuse to pay, the Bank must tell anyone it reports you to that you have a question about your statement. And, the Bank must tell you the name of anyone the Bank reported you to. The Bank must tell anyone it reports you to that the matter has been settled between you and the Bank when it finally is. If the Bank doesn't follow these rules, the Bank can't collect the first $50 of the questioned amount, even if your statement was correct.

In Case of Errors or Questions About Check Card Transactions on Your Credit Line: If your Credit Line may be accessed by a Visa Check Card, and you dispute or need more information about a transaction on this Check Card, please refer to the agreement provided to you with your Check Card or call the Bank at 1-800-239-4357.

Maryland Residents: You have the right under Maryland Commercial Law Code Scion 12-510 to receive an answer to a written inquiry concerning the status of your Credit Line. Finance charges will be imposed on the outstanding balances from month to month in amounts or at rates not in excess of those permitted by law.

New Jersey Residents: Because certain provisions of this Agreement are subject to applicable law, they may be void, unenforceable or inapplicable in some jurisdictions. None of these provisions, however, is void, unenforceable, or inapplicable in New Jersey.

NOTICE TO THE BUYER – DO NOT SIGN THIS CREDIT AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THIS AGREEMENT. KEEP IT TO PROTECT YOUR LEGAL RIGHTS.