ADDITIONAL TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT
DEFERRAL AND RENEWAL. Under Delaware law, if you qualify, we may allow you to enter
into up to four (4) renewal transactions.
AUTO-WORKOUT. Unless you contact us to confirm your option for Payment in Full prior
to your Fourth Renewal Payment Due Date, your loan will automatically be placed into
a Workout Payment Plan. Under the Workout Payment Plan, your Account will automatically
be debited on your Pay Date for accrued finance charges plus a principal payment of
10% of the original loan amount rounded up to the nearest $10 increment until the loan
principal amount owed is $75 or less. When your amount owed is $75 or less, we will
debit the remaining amount of principal, plus additional finance charges, on your
next pay date. This does not limit any of Lender’s other rights under the terms of
this Agreement. All Workout Payment Plans are subject to Lender’s approval.
RETURNED CHECK CHARGE. If our ACH debit to your account is returned for insufficient
funds, closed account or a stop payment order, we may collect a returned check
charge not to exceed $20 per customer, per year.
DEFAULT, GOVERNING LAW AND ASSIGNMENT. You will be in default if you do not pay us
something you owe us under this Customer Agreement. This Customer Agreement will be
governed by the laws of the State of Delaware, except that the arbitration provision
is governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16 ("FAA"). We may
assign or transfer this Customer Agreement or any of our rights hereunder.
WAIVER OF JURY TRIAL AND ARBITRATION PROVISION. Arbitration is a process in which
persons with a dispute: (a) waive their rights to file a lawsuit and proceed in court
and to have a jury trial to resolve their disputes; and (b) agree, instead, to submit
their disputes to a neutral third person (an “arbitrator”) for a decision. Each party
to the dispute has an opportunity to present some evidence to the arbitrator.
Pre-arbitration discovery may be limited. Arbitration proceedings are private and
less formal than court trials. The arbitrator will issue a final and binding decision
resolving the dispute, which may be enforced as a court judgment. A court rarely
overturns an arbitrator's decision.
THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. For purposes of this Waiver of Jury Trial and Arbitration Provision
(hereinafter the "Arbitration Provision"), the words "dispute" and "disputes" are given
the broadest possible meaning and include, without limitation
(a) all claims, disputes,
or controversies arising from or relating directly or indirectly to the signing of this
Arbitration Provision, the validity and scope of this Arbitration Provision and any
claim or attempt to set aside this Arbitration Provision;
(b) all federal or state law
claims, disputes or controversies, arising from or relating directly or indirectly to
this Customer Agreement (including the Arbitration Provision), the information you gave
us before entering into this Customer Agreement, including the Customer Information
Sheet, and/or any past Customer Agreement or agreements between you and us;
(c) all counterclaims, cross-claims and third-party claims;
(d) all common law claims, based upon contract, tort, fraud, or other intentional torts;
(e) all claims based upon
a violation of any state or federal constitution, statute or regulation;
(f) all claims
asserted by us against you, including claims for money damages to collect any sum we
claim you owe us;
(g) all claims asserted by you individually against us and/or any
of our employees, agents, directors, officers, shareholders, governors, managers,
members, parent company or affiliated entities (hereinafter collectively referred to
as "related third parties"), including claims for money damages and/or equitable or
injunctive relief;
(h) all claims asserted on your behalf by another person;
(i) all claims asserted by you as a private attorney general, as a representative and
member of a class of persons, or in any other representative capacity, against us and/or
related third parties (hereinafter referred to as "Representative Claims"); and/or
(j) all claims arising from or relating directly or indirectly to the disclosure by us
or related third parties of any non-public personal information about you.
2. You acknowledge and agree that by entering into this Arbitration Provision:
(a) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED
AGAINST US OR RELATED THIRD PARTIES;
(b) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL,
RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and
(c) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY
GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER
OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.
3. Except as provided in Paragraph 6 below, all disputes, including any Representative
Claims, against us and/or related third parties shall be resolved by binding arbitration
only on an individual basis with you. THEREFORE, THE ARBITRATOR SHALL NOT CONDUCT CLASS
ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE,
AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN
THE ARBITRATION.
4. Any party to a dispute, including related third parties, may send the other party
written notice by certified mail return receipt requested of their intent to arbitrate
and setting forth the subject of the dispute along with the relief requested, even if
a lawsuit has been filed. Regardless of who demands arbitration, you shall have the
right to select any of the following arbitration organizations to administer the
arbitration: the American Arbitration Association (1-800-778-7879) http://www.adr.org
or National Arbitration Forum (1-800-474-2371) http://www.arb-forum.com. However, the
parties may agree to select a local arbitrator who is an attorney, retired judge, or
arbitrator registered and in good standing with an arbitration association and arbitrate
pursuant to such arbitrator's rules. The party receiving notice of arbitration will
respond in writing by certified mail return receipt requested within twenty (20) days.
If you demand arbitration, you must inform us in your demand of the arbitration
organization you have selected or whether you desire to select a local arbitrator.
If related third parties or we demand arbitration, you must notify us within twenty
(20) days in writing by certified mail return receipt requested of your decision to
select an arbitration organization or your desire to select a local arbitrator. If you
fail to notify us, then we have the right to select an arbitration organization. The
parties to such dispute will be governed by the rules and procedures of such arbitration
organization applicable to consumer disputes, to the extent those rules and procedures
do not contradict the express terms of this Customer Agreement or the Arbitration
Provision, including the limitations on the arbitrator below. You may obtain a copy of
the rules and procedures by contacting the arbitration organization listed above.
5. Regardless of who demands arbitration, at your request we will advance your portion
of the arbitration expenses, including the filing, administrative, hearing and
arbitrator's fees ("Arbitration Fees"). Throughout the arbitration, each party shall
bear his or her own attorneys' fees and expenses, such as witness and expert witness
fees. The arbitrator shall apply applicable substantive law consistent with the FAA,
and applicable statutes of limitation, and shall honor claims of privilege recognized
at law. The arbitration hearing will be conducted in the county of your residence, or
within 30 miles from such county, or in the county in which the transaction under this
Customer Agreement occurred, or in such other place as shall be ordered by the
arbitrator. The arbitrator may decide, with or without a hearing, any motion that is
substantially similar to a motion to dismiss for failure to state a claim or a motion
for summary judgment. In conducting the arbitration proceeding, the arbitrator shall
not apply any federal or state rules of civil procedure or evidence. If allowed by
statute or applicable law, the arbitrator may award statutory damages and/or reasonable
attorneys' fees and expenses. If the arbitrator renders a decision or an award in your
favor resolving the dispute, then you will not be responsible for reimbursing us for
your portion of the Arbitration Fees, and we will reimburse you for any Arbitration
Fees you have previously paid. If the arbitrator does not render a decision or an award
in your favor resolving the dispute, then the arbitrator shall require you to reimburse
us for the Arbitration Fees we have advanced, not to exceed the amount which would have
been assessed as court costs if the dispute had been resolved by a state court with
jurisdiction, less any Arbitration Fees you have previously paid. At the timely request
of any party, the arbitrator shall provide a written explanation for the award. The
arbitrator's award may be filed with any court having jurisdiction.
6. All parties, including related third parties, shall retain the right to seek
adjudication in a small claims tribunal for disputes within the scope of such tribunal's
jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a
small claims tribunal, shall be resolved by binding arbitration. Any appeal of a
judgment from a small claims tribunal shall be resolved by binding arbitration.
7. This Arbitration Provision is made pursuant to a transaction involving interstate
commerce and shall be governed by the FAA. If a final non-appealable judgment of a court
having jurisdiction over this transaction finds, for any reason, that the FAA does not
apply to this transaction, then our agreement to arbitrate shall be governed by the
arbitration law of the State of Delaware.
8. This Arbitration Provision is binding upon and benefits you, your respective heirs,
successors and assigns. The Arbitration Provision is binding upon and benefits us, our
successors and assigns, and related third parties. The Arbitration Provision continues
in full force and effect, even if your obligations have been prepaid, paid or discharged
through bankruptcy. The Arbitration Provision survives any termination, amendment,
expiration or performance of any transaction between you and us and continues in full
force and effect unless you and we otherwise agree in writing. If any of this
Arbitration Provision is held invalid, the remainder shall remain in effect.
Itemized Schedule of Charges
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Title 5 Banking
2203 Licensed Lenders Regulations Itemized Schedule of Charges
5 Del.C. §2218(5) and §2231(3)
Formerly Regulation No. 5.2218/2231.0003
Effective Date: November 12, 1999
1.0 Notification - Every licensee shall furnish to every applicant, a copy of this regulation at the time when such application is made. Posting of this regulation in the office of the licensee in a place both prominent and easily visible to all potential applicants shall satisfy this requirement. An explanation as to the contents and limitations contained herein shall satisfy this requirement when transactions occur telephonically. An informational screen containing these limitations with an affirmative acknowledgement by the consumer, prior to application, shall satisfy this requirement for internet transactions.
2.0 Interest
2.1 A lender may charge and collect interest in respect to a revolving credit plan or closed end loan at such daily, weekly, monthly, annual, or other periodic percentage rate or rates as the agreement governing the plan or loan provides, or as established in the manner provided in such agreement. Periodic interest may be calculated on a revolving credit plan using any balance computation method provided for in the agreement governing the plan. Periodic interest may be calculated on a closed end loan by way of simple interest or such other method as the agreement governing the loan provides.
2.2 If the agreement governing the revolving credit plan or closed end loan so provides, the periodic percentage rate or rates of interest may vary in accordance with a schedule or formula. Such periodic percentage rate or rates may vary from time to time as the rate determined in accordance with such schedule or formula varies and such periodic percentage rate or rates, as so varied, may be made applicable to all or any part of the outstanding unpaid indebtedness or outstanding unpaid amounts. In the case of revolving credit, such rate shall become applicable on or after the first day of the billing cycle that contains the effective date of such variation. In the case of closed end loan transactions, such rate may be made applicable to all or any part of the outstanding unpaid amounts on and after the effective date of such variation. Without limitation, a permissible schedule or formula hereunder may include provisions in the agreement governing the revolving credit plan or closed end loan agreement for a change in the periodic percentage rate or rates of interest applicable to all or any part of outstanding unpaid indebtedness or outstanding unpaid amounts, whether by variation of the then applicable periodic percentage rate or rates of interest, variation of an index or margin or otherwise, contingent upon the happening of any event or circumstance specified in the plan or agreement, which event or circumstance may include the failure of the borrower to perform in accordance with the terms of the revolving credit plan or loan agreement.
3.0 Additional Fees and Charges; Limitations - If the agreement governing the plan or loan so provides, in addition to, or in lieu of, interest at a periodic percentage rate or rates permitted by Chapter 22, Title 5 of the Delaware Code, the licensee may charge and collect the following fees and charges, subject to the limitations provided below, in respect to revolving credit plans or closed end loans:
3.1 Revolving Credit - with respect to a borrower, a lender may charge, collect, or receive one or more of the following fees and charges under plans subject to the provisions of Subchapter II, Chapter 22, Title 5 of the Delaware Code:
3.1.1 periodic charges - a daily, weekly, monthly, annual or other periodic charge in such amount or amounts as the agreement may provide for the privileges made available to the borrower under the plan;
3.1.2 transaction charges - a transaction charge or charges in such amount or amounts as the agreement may provide for each separate purchase or loan under the plan;
3.1.3 minimum charges - a minimum charge in such amount or amounts as the agreement may provide for each daily, weekly, monthly, annual or other scheduled billing period under the plan during any portion of which there is an outstanding unpaid indebtedness under the plan;
3.1.4 fees for services rendered or reimbursement of expenses - reasonable fees for services rendered or for reimbursement of expenses incurred in good faith by the licensee or its agent in connection with such loan, including without limitation, commitment fees, official fees and taxes, premiums or other charges for any guarantee or insurance protecting the licensee against the borrower's default or other credit loss, or costs incurred by reason of examination of title, inspection, recording and other formal acts necessary or appropriate to the security of the loan, filing fees, attorney's fees and travel expenses. In the event a borrower defaults under the terms of a plan, the licensee may, if the borrower's account is referred to an attorney (not a regularly salaried employee of the licensee) or to a third party for collection and if the agreement governing the revolving credit plan so provides, charge and collect from the borrower a reasonable attorney's fee. In addition, following a borrower's default, the licensee may, if the agreement governing the plan so provides, recover from the borrower all court, alternative dispute resolution or other collection costs (including, without limitation, fees and charges of collection agencies) actually incurred by the licensee;
3.1.5 overlimit charges - a charge in such amount or amounts as the agreement may provide, for each daily, weekly, monthly, annual or other scheduled billing period under the plan during any portion of which the total outstanding indebtedness exceeds the credit limit established under the plan;
3.1.6 delinquency charges - a late or delinquency charge upon any outstanding unpaid installment payments or portions thereof under the plan which are in default; provided, however, that no more than 1 such late or delinquency charge may be imposed in respect of any single such installment payment or portion thereof regardless of the period during which it remains in default; and provided further, however, that for the purpose only of the preceding provision all payments by the borrower shall be deemed to be applied to satisfaction of installment payments in the order in which they become due;
3.1.7 returned check charges - a returned check charge may be assessed to consumers, in such amount or amounts as the agreement may provide, provided the amount(s) of such charges are customary and reasonable for checks that are returned unpaid;
3.1.8 termination fees - a charge in such amount or amounts as the agreement may provide to terminate a revolving credit plan;
3.1.9 charges incurred in connection with real estate secured transactions - in the case of revolving credit secured by real estate such additional charges as outlined in item 3.3 of this regulation may also be collected within the limitations stated therein.
3.2 Closed End Credit - with respect to a borrower, a lender may charge, collect, or receive one or more of the following fees and charges for loans subject to the provisions of Subchapter III, Chapter 22, Title 5 of the Delaware Code:
3.2.1 fees for services rendered or reimbursement of expenses - reasonable fees for services rendered or for reimbursement of expenses incurred in good faith by the licensee or its agent in connection with such loan, including without limitation, commitment fees, official fees and taxes, premiums or other charges for any guarantee or insurance protecting the licensee against the borrower's default or other credit loss, or costs incurred by reason of examination of title, inspection, recording and other formal acts necessary or appropriate to the security of the loan, filing fees, attorney's fees and travel expenses. In the event a borrower defaults under the terms of the loan, the licensee may, if the borrower's account is referred to an attorney (not a regularly salaried employee of the licensee) or to a third party for collection and if the agreement governing, or the bond, note or other evidence of, the loan so provides, charge and collect from the borrower a reasonable attorney's fee. In addition, following a borrower's default, the licensee may, if the agreement governing , or the bond, note or other evidence of, the loan so provides, recover from the borrower all court, alternative dispute resolution or other collection costs (including, without limitation, fees and charges of collection agencies) actually incurred by the licensee;
3.2.2 deferral charges - a deferral charge may be assessed to a borrower in accordance with an agreement to permit the borrower to defer installment payments of a loan;
3.2.3 delinquency charges - if the agreement governing the loan so provides, a late or delinquency charge may be imposed upon any outstanding unpaid installment payment or portions thereof under the loan agreement which are in default; provided, however, that no more than 1 such delinquency charge may be imposed in respect of any single such installment payment or portion thereof regardless of the period during which it remains in default; and provided further that no such delinquency charge may exceed 5% of the amount of any such installment or portion thereof in default;
3.2.4 returned check charges - if the agreement governing the loan so provides, a returned check charge may be assessed to consumers, for checks that are returned unpaid provided the amount(s) of such charges are customary and reasonable;
3.2.5 charges incurred in connection with real estate secured transactions - in the case of closed end credit secured by real estate such additional charges as outlined in item (3)(c) of this regulation may also be collected within the limitations stated therein.
3.3 Real Estate Secured Transactions - with respect to a borrower, a lender may charge, collect, or receive one or more of the following fees and charges subject to the limitations herein, for loans subject to the provisions of Subchapters II (Revolving Credit) and III (Closed End Credit), Chapter 22, Title 5 of the Delaware Code when such loans are secured by real estate:
3.3.1 loan origination points - points charged to the borrower on the lender's behalf for any purpose other than to reduce the periodic interest rate applicable to the mortgage loan may not exceed 10% of the principal amount of the loan. Such points may be deducted from the gross proceeds of the loan. For purposes of this regulation "gross proceeds" is the amount financed as defined in Federal Reserve Regulation Z;
3.3.2 loan discount points - points charged to the borrower as a function of rate for the purpose of reducing the periodic interest rate applicable to the mortgage loan. Such points may be deducted from the gross proceeds of the loan;
3.3.3 property appraisal fees - property appraisal fees shall be limited to the amount paid to a third party for such appraisal and shall be limited to those amounts that are customary and reasonable;
3.3.4 credit report fees - credit report fees shall be limited to the actual cost of the report if paid to a third party, not an employee of the lender or affiliate. Such amounts shall be customary and reasonable;
3.3.5 mortgage loan broker compensation fees - mortgage loan broker compensation may be deducted from the gross proceeds of the loan. Such amounts shall reasonably reflect the value of the goods, services and facilities provided;
3.3.6 tax certification and service fees - fees for agreements to provide certification of the current tax status of the property as well as fees for ongoing monitoring and notice to the lender of all tax and improvement lien payments as they become due shall be limited to those amounts actually expended for such purposes. Such amounts shall be customary and reasonable;
3.3.7 flood hazard certification or determination fees - determination fees may be charged for determining whether the property is or will be located in a special flood hazard area. This fee may also include the cost of life-of-loan monitoring. Such amounts shall be customary and reasonable;
3.3.8 title abstract/search/examination and title insurance premiums - title insurance and/or cost of a title certificate, search, examination and binder shall be limited to those amounts actually expended for such purposes. Such amounts shall be customary and reasonable and may, at the borrower's discretion, include owner's coverage in addition to lender's coverage;
3.3.9 legal fees - legal fees incurred in securing or closing a loan shall be limited to amounts actually paid to an attorney not in the employ of the lender, its parent, or affiliate, and such charges shall not exceed those which are customary and reasonable;
3.3.10 recording/satisfaction fees - recording/satisfaction fees shall be limited to those actually expended by the lender to any governmental authority for protection of interest in collateral tendered. The State Bank Commissioner may approve the payment of alternative fees for this purpose provided the amount of said fee (payable by the borrower) shall not exceed the amount which would be payable to any governmental authority for protection of interest in collateral tendered;
3.3.11 property survey fees - property survey fees to obtain a drawing that delineates the exact boundaries of a property, including lot lines and placement of improvements on the property, shall be limited to those amounts actually expended for such purposes. Such amounts shall be customary and reasonable;
3.3.12 pest inspection fees - pest inspection fees to cover inspections for termites or other pest infestation on the property shall be limited to those amounts actually expended for such purposes. Such amounts shall be customary and reasonable;
3.3.13 fees incidental to loan closing - other fees and charges including but not limited to: odd days interest, hazard and mortgage insurance premiums, escrow reserves, lender's inspection fees, mortgage insurance application fees, assumption fees, underwriting fees, document preparation fees, settlement or closing fees, notary fees, funding fees, fees for lead based paint or other inspections and overnight mail fees may be charged and such amounts shall be customary and reasonable;
3.3.14 prepayment penalties - a charge in such amount or amounts as the agreement so provides imposed in connection with the payoff and termination of a revolving credit plan or closed end loan secured by real estate;
3.3.15 notwithstanding the provisions of item 3.3 of this regulation, Licensed Lenders who are making mortgage loans pursuant to the rules, regulations, guidelines and/or loan forms established by the State of Delaware or federal governmental or quasi-governmental entity (including, without limitation: the Federal Housing Administration, the Department of Veterans Affairs, the Farmers Home Administration, the Government National Mortgage Association, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation) shall be permitted to charge and collect any fees, charges or sums prescribed to be charged and collected in connection with a mortgage loan originated pursuant to a lending program conducted or supervised by any such entity.