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 [email protected] William P. Huttenbach State Bar No. 24002330 [email protected] 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.

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.

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 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.

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.

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.

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, 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.

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.

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 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 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.

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.

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].

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.

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: (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 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 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.

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.

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.

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).

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.

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. .

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).

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 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.

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.

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.

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 Business and Commerce Code.

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.

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 should be affirmed.

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.”

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.

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.

$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.

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.

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 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 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.

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.

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, HIRSCH & WESTHEIMER, P.C.

By: /s/ Michael D. Conner Michael D. Conner State Bar No. 04688650 [email protected] William P. Huttenbach State Bar No. 24002330 [email protected] 1415 Louisiana, 36th Floor Houston, Texas 77002 Telephone: (713) 220-9162 Facsimile: (713) 223-9319

Attorneys for Appellee, Compass Bank 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

/s/ Michael D. Conner Michael D. Conner Case No. 01-15-00210-CV

IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

Francisco Calleja-Ahedo, Appellant v. Compass Bank, Appellee

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 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<up Withh old lng) 24 Compass Gonsume¡ Priyact Disdosure 26 lmportant lnformaüon About Your Cheddng Áccount (Cñ6d( 21) 29 Vlsao Ghedr Card Agreement and Dl¡closurê Statement 31 HIGHLIGI{TS Ghanges to Consumer Deposit Account Agreement This Disclosure Booklet contains the terms and conditions that will govern your consurner deposit accounts at Compass Bank beginning August 22,2OO8" A consumer deposit account includes any type of checkíng, savings money market or NOW account to which funds may be deposited and that is used prímarily for personal, family or household purposes. Please carefully review tte Gonsumer EÞposÍi Aøunt &rcement on pages 1'l -21 of this Consumer Disclosure Booklet and keep it for fuh.¡re reference. Many terms of your Compass account will be different from those at Ta<as State Elank, including, but not limited to, the followíng: r Postlng Order and Order of PaymenL At Compass Bank checks and other debits to your account may be poded and/or paid in a different order than at Texas State Bank lf two or more iterns are presented for payment from your account on the same day, we may pay or clrarge the items to your account in any order. To avoid olerdrawing your accoun[ make sure¡rou have a sufficient available balance in your account before you write a ct¡eclç use your Check Card or authorize an electronic payment r 'Available Balanca' Bank, we distinguish between the "available balance'and The ierm 'available balance" refers funds to the balance of mediate withdrawal. Unlike the posrted balancq the available balance reflects any holds placed on your account The term 'Posted balance" refers to the balance of funds in youraccount based solely on items that ha,re been posled as credits or debits to your account Your available balance may be rnore or less Ú¡an the âmount of your posted balance, but does not include any credit available under any Compass Bank Overdraft Protection Line of Credit you may have, r Holds lof Ched( Card ûans¡ctions. lf we issue a Msa@ Check Card foryour account and you use ytlrJr Ca¡d for cerbin transactions (including every POS and many Visa transactions), the merchant accepäng your Card may request advance authorizatjon of that transaction. lf we authorize atransactionr we may place a temporary'hold' on your accourt forüte amount requested by tfie merctant Ilús hdd ls not payrnent for an zuthodzed ha¡rsacüorÌ and may be plæed on your account bebre fìe acùral ùansactlon ls presented to ts fø payrnent Fot more lnformdion abor.rt these holdg when they are releâse4 thelr effect on your actount and the authori¿ations requested by mercfrants, please rcferto the Chêck Card Agreement and Dlsclosure Stalement induded with ¡lour new Ct¡eck Catd. r Una¡¡lñorlzgl lts¿ns¡rüon¡ rrrßlo¡ Fo¡gprlee R [s esssntíal that any account efiorc, unar¡ttrorized bansac{ions, alteratlons, unåuthorized signatrrres, fotgerþC encoding enors, posting errþrg or any other improper bansac{ions on your âccq¡r¡t (colleclÍvely refuned b æ 'excepf¡ons') be reported b us as soon as reasonabþ poss¡bþ- You must carefulþ examine each acæunt statement or rrcüce you receive and report any excepùbns to us promptly afuryou receive the statement or noüca H you do not report an orcepüon to us within $ltty (30) days afbr we sêfld ûre sbtsment or notke to yû{rt we may not be fiable ûo you for any bss ¡rou suffer related to lhat arception. Different rules may +ply to items lhat are eþctonic fund baneftrs. l Rerotylng O¡seutes Releted to Your A¡cu¡nt tf a dlspute of ary ldnd adses under your acco account agreerneût or relales to ¡rour aacnrrtl, either yÐu or we can droose to have that dlspute either ¡ou nor vue ssek b compel arbitraüon of any dlspute we ha¡s related lo thls Agreement, ¡our æcannl or any üansectons lnvolvirg ¡our aæount or (Ì0 some or dl of the arblHion prwision is r¡nerdorceable ard we are ln a dispute ln a court of bw, üren eadr sf us âgr€s¡¡ to waive any lþht we may have to a jury hial b the eortent permitÞd Ð hrv. lÎrc rtltfilon ¡nd lüry ùlal rairer p¡ovlslonc fn youl ¡oeount agreGment limityour abilltyto litigate dalm¡ ln court and your llghtto a iurytrial. You should rwlew these proulslons carefully. I 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<ing Acæunt (Ghed< 2f ) Changes to Checking and Savings Accounts ' Here are highlights to the changes in ûre terms and features of yolr accounts after they transfer to Compass Banlc 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<ing, and Club t Checking i minimum daily collected balance end $2,500 i average daily collected balance required to I Ghed<ing ¡ i waive monthly Service Charge Standard fees wilf apply for cashíe/s checks and travele/s i checks, Customers enrolled ln Add-On Values r will be converted to CompassPlus and will be i assessed a $5 monthly fee. , 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<lng ORil), I (additiona,l features are $2/slatement cycle): Rlveruay Premier , Free foreign ATMs, rebates of ATM fees otter r Ghec*ing, Economy banks charge, up to $25 cash on your account , Chedring, and Fresh Start ;' anniversary, interest on your checking accounl I balance, cash back on Visa Check Card ' purchaseg double Visa Extras Rewards polnb, I one overdraft fee waiver peryear. Customers enrolled in Add-On Values will be conveded b i CompassPlus and will be assessed a $5 monthly fee, , 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<lng, ¡ will remain in etfect Transacl¡on fees forValue and Value Cheddng (fRN) ; Checking and Value Checking frRU) w¡tl ¡e i waived. Customers enrolled in Add-On Values will be converted to CompassPlus and will be assessed a $5 monthly fee. Fnedo¡n Select Ched<lng, CompassLink No monthly Service Charge with a combined Reedom Select Checking average daily collected balance of $?000 in Cheddng (TRN), CompassLink Checking and Preferred Money Star Chedting, Market Accounts, or when linked to an Cholce Ched<ing, outstanding installment loan or line of credit Senior Cholce Chedring, balance of $?500 or mors. Oiherwise, $15 lnterest Chedclng, and monthly Seruice Chæge. No fee for using another lltt€rest Ched<ing Cf Rll) bank's ATM and eligible for surcìarge rebates, Free custom wallet checks, cashie/s checks, and travele/s chert<s Bonus rates available on CDs. The following Rate Ters apply: $0-$1,999; $2000+. Customers enrolled in Add-On Values will be converted to CompassPlus and will be assessed a $5 monthþ fee. -r- Freedom Platlnum CompassUnk No monthly Service Charge with a combined t Chedrlng and P¡emler I Checking averege daily coltected balance of $2,000 in lnvestment I CompassLink Checking and Preferred Money ¡ i I Market Accounts, or when linked to an t I oubtranding insiallment loan or line of credit 1 balance of $7,500 or more. Otherwise $15 monlhly Service Charge, No fee for using I I ¡ 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<ing and SavingsAmunts continued Here are highlights to the chargee in the terms and feaù.rres of your accounls after they hansfer to Compass Bank lexas StatE GompassBank Please Noûe Changes to These Account Bank ïerms and Feaü¡res Group lntercst Ched<ing Build-To-Order No monthly SeMce Charge or minimum and Group Banklng Free Checking balance requirement Unlimited hansactions. wih lnterest Choose one premium feat¡re at no ctarge (additional batures are $Zsdement rycle): Free foreÌgn ATMs, rebates of ATM fees other banks charge, up to $25 cash on your account anniversary, cash back on Visa Chec* Cæd purchases, double Visa Extras Rewards points, one overdraft fue waiver peryear. lr¡terest on yourchecking account balance is a Preseleeted premium feature, The following Rate lers appþ $O-$1,999; $2,00G$9,999; $ 1000G $24999; $25,000-$74,999¡ $7500Gr. Customers enrolled in Add-On Val¡es will be converbd to CompassPlus and will be assessed a $5 monthly fee. 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<lng balances daily lf you select this feature, the following terms apply: The ate the interest on your account. This method applies a dally peri balance in the account eactr day. lnterest on deposits begins ess day on whici we receÍve credit for the'depodt Accnted lnbrest is crediH to the balance ln the account on the last day of the stat'ement q¡cle. Accrued lnterest that is credlted þ the balance ln the'account begins to eam interest no hbr üran üre next br¡sfnesg day and compounds wïth each stalement rycla Statement cycles are generally ronthly unlqss ohEnrise disdosed tf you close your account or corwert your account to a noninþrest-eaming accour¡t before accrued interest if any, is credited, you will not receive the accrued interest A taxpryer identification number will be required to eam lntercst on these accounts, n Cash Bonus on your acoount annivesary (up to $25) e This bonus must be selected for twelve consecutive shtement rycles, and the account must th be active each of es to recei¿e the full $_25 bgnus A bmu porlion of this each s&mentq/de in wh¡ó the baù¡re ls selectsd ard your account ls acüve. An 'acüve' silatemont q¡de for purpoces of thb bonus ig a ctabment clcle in whidr tlreæ ls at þast I cugùomerinit€bd depodt or withdrawal during the slatement cyde. ff lhere ls no deposit or witMrar,val duting he fftst staternent cyde, wtridt can be less üan 30 days, th,e bonus wlll not be accrued for that flrst statement cyde. s Build-to-Order Checking account must be open on the Account Anniversary for this feafuæ to be paid. lf the Build.to-Order Chacking account is closed before the Account Annirrersary, the cash bonus accrued to that poini will not be paid. s Bonus will be pairJ on ttre Aæount Anniversary, (lf üre Anniversary Daùe falls on a holiday, weekend or norì-processing day, the bonus wiltbe paid the next processlng day) Bonus is paid only from time of the most recent selection of üre bonus featurg meaning the prorated feature will be paid only for the period in which the feature is selected consecutively up to the Account 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<t Anniversary Year. lf you select olher features dudng ttre year, añ¿ have redeemed the Fee Forgiveness fuafurq they will be in addition to this feaù.¡re Th¡s feah¡re rnay not be used for forglveness of Extended Oerdraft Service Cha¡ges :r kiclng: n Two features provided free of charge.

' 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.¡<imum of six (6) charges per day. These charges are imposed on items created by dreck, in-pelson withdrawal, ATM wthdrawal, or other electronic means. New Account Closed Withln 180 Days-,,.,,,- $25,00 Non Staff-Assisted Call 1.O0/call over 15/monlh ;

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<cùangre sponsibb I hfurmdim prov,ldedby ur Erdìdrge a shortpaitd of ürflèYou r#dbd€pos¡lgol@ncunmcy AtI DeRo¡ltode¡¡ llþn DcpoCbde+ DM D.pdl rnd DqxtU $ tdl. Our ATlils, 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<s; Miscellaneous. We may, in our discretion and wiihout notice to you, either pay or return any dreck that is presented to us for paymánt more than six (6) months after the dáte of that check, We also may, in our discretion and without notice lo you, either pay or retum any check we recelve before lhe date on that check unless you have complied with any applicable statute regarding posldated checks and you have provided us with notice of the posldating in time for us to have a reasonable opportunity to act on it before the check is presented to us for paymenL Your notice about any postdated check must be given in the same manner as a stop payment order and must provide the same information required for stop payment orders. Each postdated item covered by a notice of postdating will be subject to a ature 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 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<m of üre small claims cour[ You gr ræ may droose either t¡d nmerican Arblhation Assoc¡elion eAAÐ ø the Natic Arblbâüoñ furum ('¡lAFÌ witrln ten ( l0) days of tre wriËen dema¡rd for arbibalioq b conduct any arübslim under this Agreønett[ or you ud $r€ may agfee upon a ditbent arblbalor. ln arry arcn[ any arbilralfon undar üth Agreomentshall be condwted in accotdance withúre r or arbibation orgúizslbn CRubsX lf an ertihebr orller lhantlre be applled to any drcumshme thal is not addressed by üe Rules of lhe chosen arbihatrf. kr üre arent ol any irrconsbterry between üris Agreement and üre Rules to be used for an arbibatloû such inconsislency shdl b€ resohr€d tn fwor of this Agreemenù Thb srbibel¡on ptwision ls made ¡rrsuant to a bansaclion invofuing interst¡te cornmeroe and tho fudeJd A¡biHion Act (tre'FAA1 shallappþ b úra construc,lion,lnterpretdion¡ and enforceabilûþ of thls AgrBeÍrefit nohnthstanding any othor choicc of law prodsion contalned ln tris Agreanen| Eilheryou or we may initigle srbthation by giving writ{on notce of the lntention to a¡bllrate b üre other party and by filhg notice wlth üre AAA or the f{AF h acoordance vdür üe Rules in effed at üe üme he notlce is filed. The dsnand for aôiùatlon rnay be made befora or afbr commencement of any litigation. \ôn shor.dd contact üe AAA at 800-778-?8û9 or wwwadr.org, or the tlAF at 80G4?4-2371 q www¿¡Þfururncorn, for more lnformation abo¡¡t arbltraüon lf for any ßason $e AAA or tre NAF ls unable or unwilling b serue as arbihation adminisfator, or you end ure are unable to agree on another aröltralor, we wiltsubtilute anoürer ndond or reglonal ariibalbn organization Demand for arbibdion under üris Agreercnt must be made before the date whan any jrdkiat aclÍon upon the same Cbfn would bansd ln arbihaüon Any dis doctine bars ûte arblhion this Agreareat A Oajm by, or on behalf of, other persons will not be considered ln, jolned wilh, or cusolUated wiür, the arbiHion prcceedings between you and us, and a Chhn shal not be arbihaled ofl a dessect¡oq prfuete attorney generol or other representalive basls Any dispute regarding tre prohíbitions in the prlor sentørce shell be ruoolved by the arbibab(s) ín accordance wiül this agreenrenl or uq wheürer behre duúrg, or after üre remedíeg such as sst off or ropossession or injunctirre or ohor tradilionalfy equihbfe or't' pa,tdpat¡on tn nrignrion by you or us does nor wairc any nn* *rïñnffÅITr$mfüffi or amerded Clalm lil€d agalnsl you or us after

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¡<ceeds S25,000. Unless hcottsistsnt I

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, I oGDO !r OtÊ¡ 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 I I 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<is drawn. l. Cash,wîra ùansfer, pre-auürorlæd cr€dits, and funds fiom fre following deposited chects are available on ttrc first h.rsirress dsy affBr ho day of ¡our deposlt a. U.S, Treasury cfecks b. Federal Reserve Bankchecks,Federal Home Loan Bankchecks,and postal moneyorders. c Checks drawn on other Compass Bank accounts ürat are maintained at branches located in the sarne Federal Res€rve Bank checkatocesslrç reglon as your ac@urlt d, nsüh¡lion locaÞd in he state where we maintain your account wtrose routing number begins wiüì I I 13) or any financlal lnstitution 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<s or rnoney the trme you make yor deposlt or lf your depæit's 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 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 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<empt feclplenb should oompleÞ he form(s) prodded by Compass and should úecJ< the bor captimed Exenpt Recipþnts. The form should atso oontaln pur Taxpepr ldantlcation Number, and the certificaüon staÞment must be signed The form must üren be reûurned to Compass

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 ! 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.

20. GOìrERlllllG tAt{¡ 9EITERAB uising from or relalíng to ürlc Agraern 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 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, 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

6. DEPOSITS, COLLECTIONS, AND PAYMENT OF ITEN4S

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 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. 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.

13. INTEREST INTEREST REPORTING

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

14. CHANGES TO ACCOUNT STATUS

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.

16. ADDITIONAL PROVISIONS

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 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.

17. ELECTRONIC BANKING SERVICES

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

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 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 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 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) 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 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.

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