1 United States District Court Eastern District of New

Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 1 of 26 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

BOB McNEIL, an individual, on behalf of CASE NO. himself, and all others similarly situated,

Plaintiff, CLASS ACTION COMPLAINT v. JURY TRIAL DEMANDED CAPITAL ONE BANK, N.A.,

Defendant.

Plaintiff Bob McNeil (“Plaintiff” or “Mr. McNeil”), on behalf of himself and all others similarly situated, by and through his counsel, brings this Class Action Complaint (“Complaint”) against Defendant Capital One Bank, N.A. (“Capital One” or the “Bank”), and based upon personal knowledge with respect to himself, and on information and belief and the investigation of counsel as to all other matters, in support thereof alleges as follows:

INTRODUCTION

1. This case concerns Capital One’s unlawful business practice of imposing multiple

Non-Sufficient Funds Fees (“NSF Fee”) and Overdraft Fees (“OD Fee”) on a single transaction.

2. Plaintiff brings this action on behalf of himself and all similarly situated

consumers against Capital One, arising from a specific fee generation practice that violates the

Bank’s contracts and/or is deceptive.

3. Three Capital One documents permit the Bank to charge a single $35 NSF Fee

when it determines a customer’s account contains insufficient funds to pay a transaction and it

rejects the charge. See Rules Governing Deposit Accounts (“Deposit Agreement”), attached

hereto as Exhibit A, Schedule of Miscellaneous Fees and Charges (“Fee Schedule”) attached

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hereto as Exhibit B, and the “Online Banking Agreement”, attached as Exhibit C (collective

“Account Documents”).

4. The Account Documents also permit Capital One to charge a single $35 OD Fee when it determines a customer lacks sufficient funds to pay a transaction, but it advances the funds and pays the transaction anyway.

5. Through the imposition of NSF Fees and OD Fees (collectively referred to herein as “Account Fees”) the Bank makes hundreds of millions of dollars annually often at the expense of its most vulnerable customers.

6. Mr. McNeil does not dispute the Bank’s right to either (a) reject a transaction and

charge a single NSF Fee or (b) pay a transaction and charge a single OD Fee, but Capital One

unlawfully maximizes its already profitable Account Fees with deceptive practices that also

violate the express terms of its contract.

7. Specifically, Capital One unlawfully: (a) assesses multiple NSF Fees; and/or (b)

assesses both NSF Fees and an OD Fee on a single Automated Clearing House (ACH)

transaction or check.

8. Unbeknownst to consumers, each time Capital One reprocesses an ACH

transaction or check for payment after it was initially rejected for insufficient funds, Capital One

chooses to treat it as a new and unique item or transaction that is subject to yet another NSF Fee

(or another OD Fee if it decides to pay the transaction). But Capital One’s Account Documents

never disclose that this counterintuitive and deceptive result could be possible and, in fact,

suggest the opposite. Moreover, the premise is far from obvious as a matter of common sense

and becomes even less so when one considers that Capital One’s own bank statements

sometimes refer to the re-attempted items are “RETRY PYMT”—i.e., mere iterations of the same

initial item, not items ex nihilo.

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9. Capital One’s Account Documents indicate that only a single NSF or OD Fee will

be charged per “transaction” or “item,” however, many times that item is reprocessed with no request from the customer to do so. An electronic item reprocessed after an initial return for insufficient funds, especially through no action by the customer, cannot and does not fairly become a new, unique item for fee assessment purposes, particularly here where Capital One reprocesses the items knowing there are insufficient funds to cover the items solely to cause additional fees and increase the Bank’s profits at the expense of its customers.

10. Capital One breaches its contract when it charges more than one $35 NSF Fee on the same item, since the contract explicitly states—and reasonable consumers understand—that the same item can only incur a single NSF Fee.

11. The Bank similarly breaches its contract when it charges both a $35 NSF Fee (or multiple NSF Fees) and a $35 OD Fee on the same item since the contract explicitly states—and reasonable consumers understand—that the same item cannot incur both types of fees.

12. Capital One also breaches its duty of good faith and fair dealing when it charges multiple Account Fees on a single transaction. Specifically, Capital One breaches its contracts and/or abuses its contractual discretion by: (a) processing transactions when it knows that a customer’s account lacks sufficient funds; and (b) charging NSF Fees and/or OD Fees upon each reprocessing of the same item. In both instances, the customer has made no attempt to resubmit the payment.

13. This practice not only violates Capital One’s contracts and the covenant of good faith and fair dealing, but is also unfair and deceptive under the consumer protection law of New

York (where Mr. McNeil is a citizen and resides).

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14. Mr. McNeil and other Capital One customers have been injured by these

practices. On behalf of himself and the Classes, Mr. McNeil seeks damages, restitution and

injunctive relief for Capital One’s breach of contract and of the covenant of good faith and fair

dealing, unjust enrichment, and violations of the New York consumer protection statute.

PARTIES

15. Plaintiff Bob McNeil is a citizen of New York, residing at all relevant times in

Brooklyn, New York. He maintains a checking account at Capital One. At all times relevant,

Plaintiff patronized Capital One banking centers located in Brooklyn, New York and other

locations in the New York City area.

16. Defendant Capital One is a national bank with its headquarters and principal place

of business located in Arlington, VA. Among other things, Capital One is engaged in the business of providing retail banking services to consumers, including Mr. McNeil and members of the putative Classes. Capital One operates banking centers, and thus conducts business, throughout the State of New York, including within this District.

JURISDICTION AND VENUE

17. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1332(d)(2), because the matter in controversy exceeds $5,000,000, exclusive of interest

and costs, and is a class action in which at least one member of the class (Mr. McNeil) is a

citizen of a State different from the Defendant. The number of members of the proposed Classes in aggregate exceeds 100 accountholders. 28 U.S.C. § 1332(d)(5)(B).

18. This Court has personal jurisdiction over the Defendant because Defendant’s actions and omissions committed in or aimed at this District gave rise to the claims alleged in this Complaint. Also, Defendant regularly conducts and/or solicits business in, engages in other

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persistent courses of conduct in, and/or derives substantial revenue from products and/or services provided to persons in this District and in New York.

19. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred in this District— where Mr. McNeil lives and conducts his banking business with Capital One.

SUBSTANTIVE ALLEGATIONS

20. As alleged more fully herein, Capital One’s Account Documents allow it to take

certain steps when a Capital One accountholder attempts a transaction, but does not have

sufficient funds to cover it. Specifically, the Bank may: (a) authorize the transaction and charge a

single $35 overdraft fee (“OD Fee”); or (b) reject the transaction and charge a single $35 NSF

Fee.

21. In contrast to its Account Documents, however, Capital One regularly assesses

two or more NSF Fees on the same item or transaction. Additionally, the Bank regularly

assesses both NSF Fees and OD Fees on the same item or transaction.

22. Oftentimes, Capital One engages in both forms of wrongdoing with respect to a

single transaction, repeatedly rejecting, re-processing, and charging multiple NSF Fees on the

transaction before finally authorizing it and then charging unsuspecting customers an additional

OD Fee.

23. These abusive and deceptive practices are not universal in the banking industry.

Indeed, many major banks like Chase—the largest consumer bank in the country—do not charge

repeated NSF Fees (or subsequent OD Fees) on the same item or transaction when it is

reprocessed. Instead, Chase charges one NSF Fee even if an item is processed for payment

multiple times.

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24. Capital One’s Account Documents never disclose that the Bank undertakes these

practices. To the contrary, the Bank’s Account Documents indicate that it will only charge a

single Account Fee on an item or per transaction.

A. Mr. McNeil’s Experience

25. In support of his claims, Mr. McNeil has numerous examples of NSF Fees and

OD Fees that should not have been assessed against his checking account. On each of the occasions described infra, Capital One: (a) reprocessed a previously declined transaction; and (b)

charged a fee upon reprocessing, regardless of whether the initial submission was authorized or declined.

26. On January 9, 2018, Plaintiff attempted to make a one-time PayPal transfer in the amount of $43.80, via an ACH transaction.

27. Capital One rejected payment of that item due to insufficient funds in Mr.

McNeil’s account and charged Plaintiff a $35 NSF Fee. Mr. McNeil does not dispute this initial fee, as it is allowed by the Bank’s Account Documents.

28. Unbeknownst to Mr. McNeil and without his request to Capital One to retry the transaction, however, eight days later, on January 17, 2018, Capital One processed the same transaction yet again, and again Capital One rejected the item due to insufficient funds and charged Plaintiff another $35 NSF Fee.

29. In sum, Capital One charged Plaintiff $70 in fees to process a single payment to

PayPal of $43.80.

30. Plaintiff understood his PayPal transaction to be a single transaction as is laid out in Capital One’s contract, capable at most of receiving a single NSF Fee (if Capital One returned it) or a single OD Fee (if Capital One paid it).

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31. Capital One itself also understood the PayPal transaction to be a single transaction, and its systems categorized it as a “RETRY PMT.”

32. On June 15, 2018, Plaintiff attempted to make a one-time PayPal transfer in the amount of $17.54, via an ACH transaction.

33. Capital One rejected payment of that item due to insufficient funds and charged

Plaintiff a $35 NSF Fee. Mr. McNeil does not dispute this initial fee, as it is allowed by the

Bank’s Account Documents.

34. Unbeknownst to Mr. McNeil and without his request to Capital One to retry the transaction, however, seven days later, on June 22, 2018, Capital One processed the same transaction yet again, and this time Capital One paid the item into overdraft and charged Plaintiff another $35 Fee.

35. In sum, Capital One charged Plaintiff $70 in fees to process a single $17.54 payment to PayPal—a payment it could have simply authorized into overdraft and charged one fee.

36. Plaintiff understood his PayPal transaction to be a single transaction as is laid out in Capital One’s contract, capable at most of receiving a single NSF Fee (if Capital One returned it) or single OD Fee (if Capital One paid it).

37. Capital One itself also understood the PayPal transaction to be a single transaction, and its systems categorized it as such. Indeed, on Mr. McNeil’s account statement,

Capital One described subsequent attempts to debit the transaction as a “RETRY PYMT.”

B. The Imposition of Multiple NSF Fees on a Single Transaction Violates The Bank’s Express Promises and Representations

38. The Deposit Agreement provides the general terms of Mr. McNeil’s relationship with the Bank and therein Capital One makes explicit promises and representations regarding how transactions will be processed, as well as when NSF Fees and OD Fees may be assessed. 7 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 8 of 26 PageID #: 8

39. The Deposit Agreement does not define the term “item” or “transaction,” and

never states the same “item” or “transaction” can cause multiple NSF Fees.

40. Instead, the Deposit Agreement contains explicit terms indicating that NSF Fees

will only be assessed once per transaction or “item”—defined as a customer request for payment

or transfer—when in fact Capital One regularly charges two or more NSF Fees per transaction or

item even though a customer only requested the payment or transfer once.

41. Capital One’s Account Documents state that it will charge $35 per “item” or

transaction that is returned due to insufficient funds.

42. As used throughout the Deposit Agreement, the term “item” or “transaction”

describe all iterations of a given instruction for payment or deposit from a checking or savings

account.

43. According to the Deposit Agreement:

Returning Items for Insufficient Funds. You do not have the right to write a check or draft, to make an ATM or other withdrawal, or to initiate or have an automatic debit processed against your account for an amount that exceeds your available balance (If you’re enrolled in an overdraft protection, we’ll transfer available amounts to cover the transaction in accordance with the agreement governing your overdraft protection plan). At any time before final payment (as defined in the Uniform Commercial Code) we may return any check, draft, image, negotiable order of withdrawal, electronic debit or other item presented for payment against your account when there are insufficient available funds in your account to pay the item or if for some other reason the item is not good or payable. In addition, we may charge a fee for each item returned in accordance with our current Schedule of Fees and Charges. (Emphasis added.)

44. This disclosure indicates “a” single fee may be charged “for each item returned”

and indicates that an “item” is the result of an accountholder “writing,” “making,” or “initiating” a payment.

45. Capital One’s “Explanation of Various Key Services and Charges” (attached

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hereto as Exhibit D) states that a $35 NSF Fee may be assessed in the following circumstance:

If we choose to decline a check or ACH transaction due to insufficient funds in your account. These transactions may be subject to additional charges or penalties charged by the payee. (Emphasis added.)

46. A “transaction,” like a check or ACH, is a request for payment by an

accountholder. It does not become a new “transaction” when it is later reprocessed by Capital

One.

47. Moreover, the “Explanation of Various Key Services and Charges” states that

“transactions” may suffer additional penalties by the payee, but never says additional charges

may be imposed by Capital One for the same transaction.

48. Capital One’s separate Fee Schedule is flatly misleading, since it states that a $35

fee will only be charged when transactions “create an overdraft” in your account:

Non-sufficient Funds (NSF)/Overdraft (OD): $35

We may charge your account a fee for items drawn or transactions effected that create an overdraft in your account. Transactions resulting in imposition of this fee can be created by check, in-person withdrawal, ATM withdrawal (if you have authorized us (also known as “opted in”) to consider approving ATM withdrawals and every debit card transactions on your account when you don't have the available funds) or other electronic means and may be charged whether or not the item or transaction is paid. Additional miscellaneous fees may apply. Please refer to a current Schedule of Miscellaneous Fees and Charges available upon request at any of our banking offices. (Emphasis added.)

49. But since a rejected payment attempt is not paid, it cannot create an overdraft on

an account. This disclosure does not authorize any NSF Fees, much less more than one on the

same transaction or item.

50. Because Mr. McNeil only made one authorization for payment for all of his ACH

transactions, there is no new “item” or “transaction” when that transaction is rejected then

automatically reprocessed for payment by Capital One.

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51. A third Capital One account document, the “Online Banking Agreement”, also

confirms that the Bank will only charge one fee per “item” or “transaction.” This document states:

“Payment Instruction” is the information you provide for a payment to be made to a Biller through the Online Bill Pay Service (information such as, but not limited to, Biller name, Biller account number, and Scheduled Payment Date).

. . . .

Failed or Returned Payment Instructions In using the Service, you are requesting us to attempt to make payments for you from your Eligible Transaction Account. If we are unable to complete the Payment Instruction for any reason associated with your Eligible Transaction Account (for example, there are insufficient funds in your Eligible Transaction Account, or the Payment Instruction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the payment), the Payment Instruction may or may not be completed. In certain circumstances, we will attempt to debit the Eligible Transaction Account a second time to complete the Payment Instruction. In some instances, you will receive a return notice from us. In each such case, you agree that:

a. You will reimburse us or our Service Provider immediately upon demand the amount of the Payment Instruction if we have delivered the payment but there are insufficient funds in, or insufficient overdraft credits associated with, your Eligible Transaction Account to allow us to complete the debit processing;

b. You may be assessed a fee by our Service Provider and by us if the Payment Instruction cannot be debited because you have insufficient funds in your Eligible Transaction Account, or the transaction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the payment, or if we cannot otherwise collect the funds from you; the fee amount will be as set forth in your fee schedule from us (including as disclosed on the Site) or your account agreement with us. You hereby authorize us to deduct these amounts from your designated Eligible Transaction Account, including by ACH debit; . . . .

(Emphasis added.)

52. For items conducted by Capital One customers through its online bill pay service, if there are insufficient funds to pay a “Payment Transaction,” Capital One will either return or

pay the transaction.

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53. Even in the undefined “certain circumstances” in which the Bank “will attempt to

debit the Eligible Transaction Account a second time to complete the Payment Instruction,” the agreement states the accountholder “may be assessed a fee by our Service Provider and by us if the Payment Instruction cannot be debited because you have insufficient funds in your Eligible

Transaction Account,” with the fee amount being that “set forth in your fee schedule.”

54. As with the other Account Documents, Capital One’s chosen agreement language signals that “a fee” will be charged even if the online bill pay transaction is reprocessed. “A fee” means a “singular” fee.

55. In sum, the same instruction for payment cannot conceivably become a new

“item” each time it is rejected for payment and then reprocessed by Capital One.

56. Even if Capital One reprocesses an instruction for payment, it is still the same

“item” or “transaction.” The Bank’s reprocessing is simply another attempt to effectuate Mr.

McNeil’s original order or instruction.

57. The disclosures described above never discuss a circumstance where Capital One may assess multiple NSF Fees for a single check or ACH transaction that was returned for insufficient funds and later reprocessed one or more times and returned again.

58. In sum, Capital One promises that one $35 NSF Fee will be assessed per item or transaction, and “item” or “transaction” must mean all iterations of the same instruction for payment. As such, Capital One breached its contract when it charged more than one fee per item.

59. Reasonable consumers understand any given authorization for payment to be one, singular “item” as that term is used in Capital One’s Fee Schedule and Deposit Agreement.

60. Upon information and belief, Capital One has this same understanding in practice, since its systems code items in a way that alerts the Bank when the same item or item is being reprocessed for payment.

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61. Taken together, the representations and omissions identified above convey to

customers that all submissions for payment of the same transaction will be treated as the same

“item,” which the Bank will either authorize (resulting in an overdraft item) or reject (resulting in

a returned item) when it decides there are insufficient funds in the account. Nowhere does

Capital One disclose that it will treat each reprocessing of a check or ACH payment as a separate

item, subject to additional fees, nor do Capital One customers ever agree to such fees.

62. Customers reasonably understand, based on the language of the Deposit

Agreement and Capital One’s other Account Documents, that the Bank’s reprocessing of checks

or ACH payments are simply additional attempts to complete the original order or instruction for

payment, and as such, will not trigger NSF Fees. In other words, it is always the same item or

transaction.

C. Capital One May Not Charge Both OD and NSF Fees on a Single Transaction

63. Consistent with Capital One’s express representations in its contracts, Plaintiff

and reasonable consumers understand that any given instruction by them for payment to be one,

singular transaction and one “item” as that term is used in Capital One’s contract documents.

64. Capital One’s contract documents bar the Bank from assessing both NSF Fees and

OD Fees on the same instruction for payment—but that is exactly what the Bank does.

65. Capital One’s Deposit Agreement makes clear that a given transaction can either

be paid into overdraft or returned unpaid:

For all checking accounts, we will consider paying your checks, ACH (such as your mortgage payment), bill payments, withdrawals and recurring debit card transactions (like your monthly gym payment) into overdraft rather than returning the item unpaid. (Emphasis added.)

66. As alleged above, only a single fee of any type can be assessed on a given item or transaction.

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67. Consistent with the Deposit Agreement, the Online Banking Agreement states,

“the Payment Instruction may or may not be completed,” and when it is completed despite

insufficient funds in the account, it means Capital One pays the transaction, like it will have for

another check or ACH transaction. This language also clearly indicates that the Bank will do

one of two things when a customer lack sufficient funds: (a) pay the transaction and charge an

OD Fee; or (b) reject the transaction and charge a NSF Fee.

68. Despite the fact that the terms of the Deposit Agreement, Fee Schedule, and

Online Banking Agreement and Fee Schedule use starkly binary language, Capital One

frequently pursues both options with respect to a single transaction. That is, it first rejects the transaction and charges a NSF Fee, then later authorizes the transaction and charges an OD Fee.

Capital One does this to maximize fee revenue at the expense of its customers.

D. The Imposition of Multiple NSF Fees or an NSF Fee and OD Fee on a Single Transaction Breaches Capital One’s Duty of Good Faith and Fair Dealing

69. Parties to a contract are required not only to adhere to the express conditions in the contract, but also to act in good faith when they are invested with a discretionary power over the other party. In such circumstances, the party with discretion is required to exercise that power and discretion in good faith. This creates an implied promise to act in accordance with the parties’ reasonable expectations and means that the Bank is prohibited from exercising its discretion to enrich itself and gouge its customers. Indeed, the Bank has a duty to honor transaction requests in a way that is fair to Mr. McNeil and its other customers and is prohibited from exercising its discretion to pile on ever greater penalties on the depositor. Here—in the adhesion agreements the Bank foisted on Mr. McNeil and its other customers—Capital One has provided itself numerous discretionary powers affecting customers’ bank accounts. But instead

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of exercising that discretion in good faith and consistent with consumers’ reasonable

expectations, the Bank abuses that discretion to take money out of consumers’ account without

their permission and contrary to their reasonable expectations that they will not be charged

multiple fees for the same transaction.

70. As set forth in its Deposit Agreement the Bank “may charge a fee for each item

returned in accordance with our current Schedule of Fees and Charges.” (Emphasis supplied.)

The Online Banking Agreement consistently states that the customer “may be assessed a fee.”

Capital One exercises its discretion in its own favor—and to the prejudice of Mr. McNeil and its other customers—when it reprocesses a transaction when it knows a customer’s account lacks funds and then charges additional NSF Fees and/or both a NSF Fee and an OD Fee on a single item. Further, Capital One abuses the power it has over customers and their bank accounts and acts contrary to his reasonable expectations under the Deposit Agreement. This is a breach of the

Bank’s implied covenant to engage in fair dealing and act in good faith.

71. Further, Capital One maintains complete discretion not to assess NSF Fees or OD

Fees on transactions at all. As alleged in the previous paragraph, the Bank “may charge a fee” or

“You may be assessed a fee.” By exercising its discretion in its own favor—and to the prejudice of Ms. McNeil and other customers—by charging more than one NSF Fee, or both a NSF Fee and OD Fee, on a single item, Capital One breaches the reasonable expectation of Mr. McNeill

and other customers and in doing so violates the implied covenant to act in good faith.

72. Capital One’s exploitation of its contractual discretion to the detriment of

accountholders and resulting breaches good faith and fair dealing is also pronounced when it

charges both NSF Fees and an OD Fee on the same item or transaction.

73. First, Capital One engages in a pattern of initially rejecting, then approving, the same items in order to maximize fee revenue.

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74. As alleged in the example above, Capital One exercised discretion to reject

payment on the first iteration of Mr. McNeil’s $17.54 Paypal transfer because Plaintiff purportedly had insufficient funds in his account. But it approved the second iteration of the same transaction even though Plaintiff still purportedly lacked sufficient funds and was in fundamentally the same financial position.

75. The reject-then-approve pattern used by Capital One has one purpose: to maximize fee revenue for the Bank.

76. Capital One’s Deposit Agreement provides the Bank with significant discretion as

to whether to pay or reject an insufficient funds transaction (and charge a corresponding fee):

When deciding to pay debit transactions that cause an overdraft, we consider a variety of factors, including the size of the transaction, whether your account is in good standing and/or your history with us, including whether you’ve previously had too many overdrafts on your account(s). We also consider the type of overdraft service you have on your account.

77. In addition to the discretion as to whether to pay or reject a transaction, Capital

One also provides itself significant discretion as to whether or not to charge a single Account Fee

on a given transaction.

78. By exercising its discretion in its own favor—and to the prejudice of Mr. McNeil

and other customers—by engaging in its “reject, then approve into overdraft” pattern, Capital

One abuses the power it has over Mr. McNeil and its other customers and acts contrary to their

reasonable expectations under the Deposit Agreement. This is a breach of the Bank’s implied

covenant to engage in fair dealing and act in good faith.

CLASS ALLEGATIONS

79. Mr. McNeil brings this action on behalf of himself and all others similarly

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situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the

numerosity, commonality, typicality, adequacy, predominance and superiority requirements of

Rule 23.

80. The proposed “Classes” are defined as:

Class 1 – Nationwide Multiple NSF Class All Capital One checking account holders in the United States who, during the applicable statute of limitations, were charged multiple NSF Fees on an item (the “Multiple NSF Class”).

Subclass 1 – New York Multiple NSF Subclass All Capital One checking account holders in New York who, during the applicable statute of limitations, were charged multiple NSF Fees on an item (the “New York Multiple NSF Subclass”).

Class 2 – Nationwide NSF and OD Class All Capital One checking account holders in the United States who, during the applicable statute of limitations, were charged an NSF Fee and an OD Fee on the same item (the “NSF/OD Class”).

Subclass 2 – New York NSF and OD Subclass All Capital One checking account holders in New York who, during the applicable statute of limitations, were charged an NSF Fee and an OD Fee on the same item (the “New York NSF/OD Class”).

Hereinafter, the Classes and Subclasses are collectively referred to as the “Classes.”

81. Mr. McNeil reserves the right to modify or amend the definition of the proposed

Classes before the Court determines whether certification is appropriate.

82. Specifically excluded from the Classes are any entities in which Capital One has a

controlling interest, or which have a controlling interest in Capital One, Capital One’s legal representatives, assigns, and successors, any Judge to whom this action is assigned, and any

member of such Judge’s staff and immediate family.

83. The members of the Classes are so numerous that joinder is impractical. The

Classes consist of thousands of members, the identities of whom are within the exclusive

knowledge of Capital One and can be readily ascertained only by resort to Capital One’s records.

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84. The claims of the representative plaintiff are typical of the claims of the Classes in that the representative plaintiff, like all members of the Classes, was charged multiple NSF Fees and/or both a NSF Fee and an OD Fee on a single transaction. The representative plaintiff, like all members of the Classes, has been damaged by Capital One’s misconduct in that he has been assessed unfair and unconscionable NSF and OD Fees. Furthermore, the factual basis of Capital

One’s misconduct is common to all members of the Classes and represents a common thread of unfair and unconscionable conduct resulting in injury to all members of the Classes. Mr. McNeil has suffered the harm alleged and has no interests antagonistic to the interests of any other members of the Classes.

85. There are numerous questions of law and fact common to the Classes and those common questions predominate over any questions affecting only individual members of the

Classes.

86. Among the questions of law and fact common to the Classes include:

a. Whether Capital One violated its own contract provisions by charging

multiple NSF Fees on the same transaction;

b. Whether Capital One violated its own contract provisions by charging

both a NSF Fee and an OD Fee on a single item;

c. Whether Capital One breached its covenant of good faith and fair dealing

with Mr. McNeil and other members of the Classes through its Account Fee policies and

practices;

d. Whether Capital One was unjustly enriched through its Account Fee

policies and practices;

e. Whether Capital One violated the consumer protection law of New York

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through its Account Fee policies and practices;

f. The proper method or methods by which to measure damages; and

g. The declaratory and injunctive relief to which the Classes are entitled.

87. Mr. McNeil is committed to the vigorous prosecution of this action and has

retained competent counsel experienced in the prosecution of class actions, particularly on behalf

of consumers and against financial institutions. Accordingly, Mr. McNeil is an adequate

representative and will fairly and adequately protect the interests of the Classes.

88. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Since the amount of each individual class member’s claim is small relative to the complexity of the litigation, no class member could afford to seek legal

redress individually for the claims alleged herein. Therefore, absent a class action, the members

of the Classes will continue to suffer losses and Capital One’s misconduct will proceed without

remedy.

89. Even if class members themselves could afford such individual litigation, the court

system could not. Given the complex legal and factual issues involved, individualized litigation

would significantly increase the delay and expense to all parties and to the Court. Individualized

litigation would also create the potential for inconsistent or contradictory rulings. By contrast, a class action presents far fewer management difficulties, allows for the consideration of claims which might otherwise go unheard because of the relative expense of bringing individual lawsuits, and provides the benefits of adjudication, economies of scale, and comprehensive supervision by a single court.

90. Plaintiff suffers a substantial risk of repeated injury in the future. Plaintiff, like all members of the Classes, is at risk of additional Account Fees on repeated reprocessing of

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transactions. Plaintiff and the members of the Classes are entitled to injunctive and declaratory relief as a result of the conduct complained of herein. Money damages alone could not afford adequate and complete relief, and injunctive relief is necessary to restrain Capital One from continuing to commit its unfair and illegal actions.

CAUSES OF ACTION

FIRST CLAIM FOR RELIEF Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing (On Behalf of the Classes)

91. Mr. McNeil realleges and incorporates by reference all the foregoing allegations

as if they were fully set forth herein.

92. Mr. McNeil and Capital One have contracted for bank account services, as

embodied in Capital One’s Deposit Agreement and related documentation.

93. Capital One’s account documents explicitly state that, when a customer lacks

sufficient funds to cover a transaction, the Bank may either: (a) authorize the transaction and

charge a single OD Fee; or (b) reject the transaction and charge a single NSF fee. Capital One

regularly violates its contractual promises by charging multiple NSF Fees and/or both a NSF Fee

and an OD Fee on a single transaction.

94. Under the laws of the states where Capital One does business, parties to a contract

are required not only to adhere to the express conditions in the contract, but also to act in good faith when they are invested with a discretionary power over the other party. In such circumstances, the party with discretion is required to exercise that power and discretion in good

faith. This creates an implied promise to act in accordance with the parties’ reasonable expectations. That means that the Bank is prohibited from exercising its discretion to enrich itself

and gouge its customers. Indeed, the Bank has a duty to honor transaction requests in a manner

19 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 20 of 26 PageID #: 20

that is fair to Mr. McNeil and members of the Classes and is prohibited from exercising its

discretion to pile on ever greater penalties. Here—in the form agreements the Bank foisted on

Mr. McNeil and members of the Classes—Capital One has provided itself numerous

discretionary powers affecting customers’ bank accounts.

95. Instead of exercising that discretion in good faith and consistent with customers’ reasonable expectations, the Bank abuses that discretion to take money out of customers’ accounts without their permission and contrary to their reasonable expectations that they will not

be charged multiple NSF Fees and/or a NSF Fee and an OD Fee for the same transaction.

Specifically, Capital One regularly: (a) reprocesses previously declined transactions, even when

Capital One knows a customer’s account lacks sufficient funds; and (b) charges Capital One

Account Fees upon reprocessing of previously declined transactions.

96. Capital One further breaches the covenant of good faith and fair dealing by

charging more than one NSF Fee and/or a NSF Fee and an OD Fee on a single transaction.

97. By exercising its discretion to enrich itself by gouging its consumers, Capital One

consciously and deliberately frustrates the agreed common purposes of the contract and

disappoints the reasonable expectations of Mr. McNeil and members of the Classes, thereby

depriving them of the benefit of their bargain.

98. Mr. McNeil and members of the Classes have performed all, or substantially all,

of the obligations imposed on them under the Deposit Agreement.

99. Mr. McNeil and members of the Classes have sustained damages as a result of

Capital One’s breaches of the Deposit Agreement.

20 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 21 of 26 PageID #: 21

SECOND CLAIM FOR RELIEF New York General Business Law, N.Y. Gen. Bus. Law § 349 et seq. (On Behalf of the New York Subclasses)

100. Mr. McNeil realleges and incorporates by reference all the foregoing allegations

as if they were fully set forth herein.

101. Capital One’s practices of charging multiple NSF Fees on a single transaction or

NSF Fees and OD Fees on a single transaction violate New York General Business Law § 349

(“NYGBL § 349”).

102. NYGBL § 349 prohibits deceptive acts or practices in the conduct of any

business, trade, or commerce, or in the furnishing of any service in the state of New York.

103. As one of the largest banks in the United States with multiple branch locations in

New York, Defendant conducted business, trade or commerce in New York State.

104. In the conduct of its business, trade, and commerce, and in furnishing services in

New York State, Defendant’s actions were directed at consumers.

105. In the conduct of its business, trade, and commerce, and in furnishing services in

New York State, Defendant engaged in deceptive, unfair, and unlawful trade acts or practices, in violation of N.Y. Gen. Bus. Law § 349(a), including but not limited to the following:

a. Defendant misrepresented material facts, pertaining to the sale and/or

furnishing of banking services, to the New York Subclasses by representing and

advertising that it would only assess a single $35 NSF Fee for a single transaction and

would not subsequently charge a $35 OD Fee for that same transaction if it was paid; and

b. Defendant omitted, suppressed, and concealed the material fact that it

would charge multiple $35 NSF Fees for a single transaction, or that it would charge a

$35 NSF Fee and $35 OD Fee for a single transaction.

106. Defendant systematically engaged in these deceptive, misleading, and unlawful acts and practices, to the detriment of Plaintiff and members of the New York Subclasses. 21 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 22 of 26 PageID #: 22

107. Defendant willfully engaged in such acts and practices and knew that it violated

NYGBL § 349 or showed reckless disregard for whether such practices violated NYGBL § 349.

108. As a direct and proximate result of Defendant’s deceptive trade practices, members of the Subclasses suffered injury and/or damages, including the payment of multiple

$35 NSF Fees on a single transaction, or a $35 NSF Fee and $35 OD Fee on a single transaction, and the loss of the benefit of their respective bargains with Capital One.

109. The above unfair and deceptive practices and acts by Capital One were immoral, unethical, oppressive, and unscrupulous. These acts caused substantial injury to consumers that these consumers could not reasonably avoid; this substantial injury outweighed any benefits to consumers or to competition.

110. Further, Capital One’s conduct was substantially injurious to Mr. McNeil and members of the New York Subclasses in that they were forced to pay Account Fees they were told they would not incur.

111. Capital One’s actions in engaging in the above-named unfair practices and deceptive acts were negligent, knowing and willful, and/or wanton and reckless with respect to the rights of members of the New York Subclasses.

112. Had Mr. McNeil known he could be charged more than one NSF fee on a single transaction, or that he could be charged a $35 NSF Fee and $35 OD Fee on a single transaction, he would have made different payment decisions so as to avoid incurring such fees.

113. As a result of Capital One’s violations of the NYGBL § 349, Mr. McNeil and members of the putative Subclasses have paid and will continue to pay deceptive NSF Fees and

OD Fees. Accordingly, they have suffered and will continue to suffer actual damages.

114. Accordingly, Plaintiff and New York Subclass Members are entitled to relief

22 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 23 of 26 PageID #: 23

under N.Y. Gen. Bus. Law § 349(h), including, but not limited to, actual damages, treble damages, statutory damages, injunctive relief, and/or attorney’s fees and costs.

THIRD CLAIM FOR RELIEF Unjust Enrichment (On Behalf of the Classes)

115. Mr. McNeil realleges and incorporates by reference all the foregoing allegations as if they were fully set forth herein.

116. Mr. McNeil, on behalf of himself and the Classes, asserts a common law claim for unjust enrichment.

117. By means of Capital One’s wrongful conduct alleged herein, Capital One knowingly provided banking services to Mr. McNeil and members of the Classes that were unfair, unconscionable, and oppressive.

118. Capital One knowingly received and retained wrongful benefits and funds from

Mr. McNeil and members of the Classes. In so doing, Capital One acted with conscious disregard for the rights of Mr. McNeil and members of the Classes.

119. As a result of Capital One’s wrongful conduct as alleged herein, Capital One has been unjustly enriched at the expense of, and to the detriment of, Mr. McNeil and members of the Classes.

120. Capital One’s unjust enrichment is traceable to, and resulted directly and proximately from, the conduct alleged herein.

121. Under the common law doctrine of unjust enrichment, it is inequitable for Capital

One to retain the benefits it received, and is still receiving, without justification, from the imposition of NSF Fees and/or OD fees on Mr. McNeil and members of the Classes in an unfair, unconscionable, and oppressive manner. Capital One’s retention of such funds constitutes unjust enrichment.

23 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 24 of 26 PageID #: 24

122. The financial benefits derived by Capital One rightfully belong to Mr. McNeil

and members of the Classes. Capital One should be compelled to disgorge in a common fund for

the benefit of Mr. McNeil and members of the Classes all wrongful or inequitable proceeds

received by them. Further, a constructive trust should be imposed upon all wrongful or

inequitable sums received by Capital One traceable to Mr. McNeil and the members of the

Classes.

123. Mr. McNeil and members of the Classes have no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Mr. McNeil, individually and on behalf of the members of the Classes,

respectfully requests the Court to enter an Order:

a. certifying the proposed Classes;

b. declaring Capital One’s Account Fee policies and practices alleged in this

Complaint to be wrongful, unfair and unconscionable;

c. enjoining Capital One from charging more than one NSF Fee, or a NSF Fee and

an OD Fee, for any single transaction;

d. enjoining Capital One from materially misrepresenting its true fee processing

practices;

e. granting restitution of all Account Fees paid to Capital One by McNeil and the

Classes, as a result of the wrongs alleged herein in an amount to be determined at trial;

f. granting disgorgement of the ill-gotten gains derived by Capital One from its

misconduct;

g. awarding actual damages in an amount according to proof;

24 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 25 of 26 PageID #: 25

h. statutory damages in the amount permitted by NYGBL § 349(h);

i. awarding pre-judgment interest at the maximum rate permitted by applicable law;

j. awarding punitive or exemplary damages in accordance with proof and in an

amount consistent with applicable precedent;

k. awarding costs and disbursements assessed by McNeil in connection with this

action, including reasonable attorneys’ fees pursuant to applicable law; and

l. awarding such other relief as this Court deems just and proper.

DEMAND FOR JURY TRIAL

Mr. McNeil and all others similarly situated hereby demand trial by jury on all issues in this complaint that are so triable as a matter of right.

Dated: January 23, 2019 Respectfully submitted,

/s/Scott Martin Scott Martin Steven M. Nathan HAUSFELD LLP 33 Whitehall St., 14th Floor New York, NY 10004 Telephone: (646) 357-1100 Facsimile: (212) 202-4322 [email protected] [email protected]

James Pizzirusso (pro hac vice to be filed) HAUSFELD LLP 1700 K St., NW, Ste 650 Washington, DC 20006 Telephone: 202-540-7200 Facsimile: 202-540-7201 [email protected]

25 Case 1:19-cv-00473 Document 1 Filed 01/24/19 Page 26 of 26 PageID #: 26

Hassan A. Zavareei (pro hac vice to be filed) Andrea Gold (pro hac vice to be filed) TYCKO & ZAVAREEI LLP 1828 L St NW, Suite 1000 Washington, DC 20036 Telephone: 202-973-0900 Facsimile: 202-973-0950 [email protected] [email protected]

Jeffrey D. Kaliel (pro hac vice to be filed) Sophia Gold (pro hac vice to be filed) KALIEL PLLC 1875 Connecticut Ave., NW, 10th Floor Washington, DC 20009 Telephone: 202-350-4783 [email protected] [email protected]

Jeff Ostrow (pro hac vice to be filed) Jonathan M. Streisfeld (pro hac vice to be filed) KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: 954-525-4100 Facsimile: 954-525-4300 [email protected] [email protected]

Attorneys for Plaintiff and the Putative Classes

26 Case 1:19-cv-00473 Document 1-1 Filed 01/24/19 Page 1 of 2 PageID #: 27

Bob McNeil, an individual, on behalf of Capital One Bank, N.A. himself, and all others similarly situated Brooklyn, NY Arlington, VA

Scott Martin, Hausfeld LLP, 33 Whitehall St., 14th Floor, New York, NY 10004, (646) 357-1100

28 USC 1332(d)(2) Breach of contract, deceptive acts, unjust enrichment $5 Million +

1/23/2019 Case 1:19-cv-00473 Document 1-1 Filed 01/24/19 Page 2 of 2 PageID #: 28

X Scott Martin Plaintiff

As to Plaintiff, none.

N/A

/s/ Scott Martin Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 1 of 34 PageID #: 29

EXHIBIT A Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 2 of 34 PageID #: 30

Account Disclosures

Rules Governing Deposit Accounts Eﬀective November 7, 2018

Welcome to Capital One, N.A. (hereaer referred to as “Capital One Bank,” “we,” “us,” or “our”). These Rules Governing Deposit Accounts (herein aer referred to as “Rules”), as well as other agreements that are provided to you separately, as may be amended from time to time, constitute the deposit contract which governs all deposit accounts with Capital One Bank. By opening or continuing to maintain a deposit account with us, each customer (referred to as “you” or “your”) agrees to be bound by the applicable provisions of these Rules, and all applicable agreements, disclosures, and other documents, as well as by all applicable federal or state laws, statutes and regulations. Please keep a copy of the Rules.

We may decline to open an account for any reason, or for no reason. We are not liable for any damages or liabilities resulting from refusal of an account relationship.

Important Information about Procedures for Opening a New Account. To help the United States Government ﬁght the funding of terrorism and money laundering activities, federal law requires all ﬁnancial institutions to obtain, verify, and record information identifying each person who opens an account.

When you open an account, we will ask for your name, street address (a post oﬃce box may not be used), date of birth, and other information that will allow us to identify you. We will also ask to see your driver’s license or other identifying documents.

Taxpayer Identiﬁcation Number. Federal law requires that you provide us with your Social Security Number or your Employer Identiﬁcation Number before opening any account. If you are in the process of applying for such a number, we may open your account temporarily pending receipt of the number. If you fail to provide us with the number, we may close the account at any time without prior notice to you.

Your New Account. Additional terms and conditions, applicable service charges, minimum deposit requirement, and where applicable, information concerning the calculation, compounding and crediting of interest are contained in the disclosure statement and agreement for the type of account you have opened (your “Account Disclosure”).

Your account is considered a new account if it has been open for thirty (30) calendar days or less. If you already have existing accounts with Capital One Bank that have been open for a period of at least thirty (30) calendar days, accounts subsequently opened will not be considered new accounts.

Additional Deposits. Unless otherwise provided by the terms and conditions contained in your Account Disclosure, there is no limit on the number of deposits that may be made to an account, however, we reserve the right, at our sole discretion, to refuse further deposits to your account.

Crediting of Deposits. Funds deposited in a branch before 2 p.m. local time, or such later time posted in the branch, (9 p.m. ET for funds deposited at an ATM) on any business day will be credited to the applicable account that business day. Funds deposited aer the above stated times will be credited on that business day or the next business day. Please refer to the section of this disclosure entitled Deposit Availability Disclosure to determine when funds are available for withdrawal or for paying transactions on your account. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 3 of 34 PageID #: 31 Accepting Items for Deposit. We will accept items for deposit, but act only as your agent for collection and assume no responsibility for these items, beyond the exercise of ordinary care.

Even though we credit your account for the amount of any item, this credit is temporary until we receive ﬁnal payment in cash or other manner acceptable to us. Any temporary credit may be reversed by us. We reserve the right to require waiting periods, as described in the Deposit Availability Disclosure provided herein, before we will allow withdrawal against temporary credits. If an item you deposit (or a check cashed against your account) is returned to us unpaid, or if we receive a claim from another bank that the item was not properly payable (for example, a claim that the item was altered), we may debit the entire amount of the item (plus any applicable fees) from any account you hold with us, even if doing so creates an overdra. If a temporary credit is reversed or an item is charged back to your account, a fee may be deducted from the account, together with any interest earned on the amount of the item. Your account may also be debited for any special fees incurred in processing items for collection.

If checks deposited into multiple accounts are returned unpaid, we’ll debit your account with the largest amount deposited. For equal deposit amounts, we'll debit the account that ﬁrst received a deposit. If one of the deposits was to a Total Control Checking, Conﬁdence Savings, or a 360 account, we'll always debit that account for the full amount. Please ask a banker if you have questions.

Foreign checks are handled as collection items only and are converted at our current daily rate and credited in U.S. dollars. Foreign checks sent for collection are exchanged at the exchange rate on the day of payment. All returned foreign checks will be charged back to your account at the rate used when initially credited and may be subject to a return fee and foreign bank charge (if applicable). Any payment(s) made to you from such items shall be provisionally credited to your account until we receive ﬁnal payment from the foreign bank. Please note that while the foreign check collection process typically takes anywhere from four to six weeks, we have no control over the process once a check is sent for foreign collection. Accordingly, the process may take longer, depending on the foreign bank. You hereby waive notice of dishonor, nonpayment, or protest with respect to any items credited to or charged against your account.

Receipts for Deposits. We will give you a receipt for the total amount shown on your deposit ticket, but the amount must be veriﬁed before it is credited to your account. If an error is discovered in the amount of your deposit, we will adjust your account and notify you of the correction.

Deposit Errors. If we mistakenly credit your account for funds to which you are not the rightful owner, we may deduct those funds from your account, even if this causes your account to be overdrawn. We may do so at any time and without prior notice to you.

Envelope Depository. We may accept payments and/or deposits through the use of an “envelope depository” (a “drop” receptacle into which envelopes may be placed during business and nonbusiness hours). You authorize us to remove your payment and/or deposit from the envelope, count the funds and credit your account.

The envelope depository is provided as a convenience to our clients, and we are not responsible for any loss suﬀered by you resulting from your use of said envelope depository unless caused by our gross negligence or willful misconduct.

Withdrawals. Withdrawals from your account may be made at the teller window only by authorized signer(s) on the account. We will not pay withdrawals to third parties. If you provide your ATM card or ATM/Debit card and personal access code to a third party, you have authorized the third party to withdraw funds from your account at an ATM machine or point of sale terminal.

Account Transaction Limitations. Federal Regulations pertaining to savings accounts (including savings accounts with check writing privileges and money market accounts) allow no more than six (6) transfers per monthly service charge cycle to a third party or to another account of the depositor at Capital One Bank by means of preauthorized, automatic, telephone or online transfers. If you have a commercial account and you exceed the number of transactions permitted in a monthly service charge cycle more than once during any twelve-month period, you may be charged a fee for each transaction in excess of the number permitted (an Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 4 of 34 PageID #: 32 “Excessive Transaction Fee”). Please see the current Schedule of Fees and Charges applicable to your account for the amount of the Excessive Transaction Fee. If you exceed the transaction limitations applicable to your account three (3) times in any twelve-month period you agree that we may convert your savings or money market account to an account that is not subject to federal transaction limits (a “transaction account”). We will notify you by mail if we convert your savings or money market account to a transaction account.

Unless your Account Disclosures provide otherwise, you may make any number of withdrawals from your account in person or at any ATM; provided that you do not exceed daily ATM cash withdrawal limits. Please refer to our Electronic Fund Transfers Agreement and Disclosure (“EFT Disclosure”) available on our Website or at any of our banking oﬃces for the daily cash withdrawal and point of sale limits applicable to your ATM card or ATM/Debit card.

Notice of Withdrawal. We may allow withdrawals at any time, but reserve the right to require twenty-one (21) days written notice of intention to withdraw funds from any savings, money market and negotiable order of withdrawal (NOW) account.

Large Cash Transactions. We reserve the right to place a limit on the amount of cash that may be deposited or withdrawn in a business day. We may require advance notice of a large cash withdrawal, and we may require that the cash be obtained by an armored carrier (at your expense). We may also refuse to accept a cash deposit for a very large amount.

Same-Day Transactions. We are not responsible for paying items against deposits made the same day the items are presented for payment.

Statements. We will provide you with monthly or periodic statements for certain accounts. The postal (or electronic) address you provide to us will be deemed to be correct for purposes of delivering account statements and other notices to you, until we receive a change of address notiﬁcation from you in writing. If your statement is returned to us as a result of your failure to notify us of your change in address, we may stop sending account statements to you until a valid address is provided to us, but for all purposes it shall be considered as if we delivered your account statement to you as of the date that was or would have been printed on your account statement. If you enroll in Online Banking, your periodic statements will be accessible online from the date of enrollment. You must inspect your statement and any cancelled checks promptly aer they are made available to you. You must notify us in writing within thirty (30) days (14 days if your account was opened in New York) from the date your statement is postmarked or otherwise made available to you, or your account transaction history is made available to you through Online Banking, of any errors, discrepancies or irregularities, including but not limited to, unauthorized signature, alterations, improper charges, unauthorized transfer or withdrawal of funds, nonreceipt of an expected statement, or that any deposit was not properly credited to your account. With respect to claims of unauthorized, missing or improper endorsements on any item drawn on your account, you must notify us in writing within sixty (60) days (180 days if your account was established in Connecticut) from the date your statement is postmarked or is otherwise made available to you, or items are made available to you through Online Banking. We will not be responsible for any loss suﬀered by you if you do not notify us in writing within these stated time periods. If we pay an item bearing an unauthorized signature, forged maker’s signature or forged endorsement or alteration, our liability, if any, shall be limited to the face amount of the item.

If yours is a business account, you agree that you will have at least two people review your statements, notices, and returned checks. We assume no liability for unauthorized transactions made by an employee or agent whom you have designated as authorized to transact business on your business account or to whom you have made available any information or devices necessary to transact business on your business account.

These time limits do not aﬀect your rights under the Electronic Funds Transfer Act. Please refer to our EFT Disclosure for time limits and error resolution procedures for unauthorized or erroneous electronic funds transfers.

Claim of Loss. If you claim a credit or refund because of a forgery, alteration, or any other unauthorized withdrawal, you agree to cooperate with us in the investigation of the loss. Your cooperation may include, but not be limited to, providing us with an aﬃdavit containing whatever reasonable information we require Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 5 of 34 PageID #: 33 concerning your account, the transaction and the circumstances surrounding the loss. You further agree to notify law enforcement authorities of any criminal act related to the claim. We will have a reasonable period of time to investigate the facts and circumstances surrounding any claim of loss. Unless we have acted in bad faith, we will not be liable for special or consequential damages, including loss of proﬁts or opportunity, or for attorneys’ fees incurred by you. You agree that you will not waive any rights you have to recover your loss against anyone who is obligated to repay, insure or otherwise reimburse you for your loss. You will pursue your rights or, at our option, assign them to us so that we may pursue them. Our liability will be reduced by the amount you recover or are entitled to recover from these other sources.

If you make a claim, or if we suspect that your account may be compromised, we may recommend that you close the account. If you decline to close the account, you agree that we will not be liable to you for subsequent losses or damages on the account due to unauthorized activity.

Transactions using Teleservice24SM – [24]7 Inc. Telephone transactions using Teleservice24SM require a combination of: 1) the entry of your social security number 2) the entry of your personal phone pin 3) the entry of your debit card number 4) the entry of your debit card pin or 5) automated phone number veriﬁcation/matching to transfer funds between checking, savings and money market accounts bearing your name and linked to your social security number. All accounts must be maintained with us. You are solely responsible for the security of your personal phone pin and debit card pin, which should be held under the strictest conﬁdence and not revealed to other persons. If you know or suspect that another person knows your personal phone pin and debit card pin, you should notify us immediately so that your phone pin and debit card pin may be changed. You will be liable for unauthorized transactions to your accounts using your personal phone pin and debit card pin to the extent allowed by applicable state or federal law. You hereby agree that the security procedure described in this section is commercially reasonable and authorize us to process transfers between your accounts via our automated telephone service. Please consult our EFT Disclosure for the rules and regulations regarding telephone transfers and the limits of our liability.

Processing Order of Credits and Debits. We process credits and debits to your account in a speciﬁc order. We refer to this as the processing order and it is how we decide what posts ﬁrst and last each day. The processing order also determines the order that you will see the items on your statement.

Our processing order might not be the same as the order you make transactions and could result in overdra transactions. You can avoid overdras on your account by always making sure you have enough available funds in your account to cover your transactions. Please read the Deposit Availability Disclosure section of these Rules for more information on when we make funds available to you.

Credits, like a check or cash deposit, increase your account balance. Debits, like ATM withdrawals and debit card transactions, decrease your balance. We will process credits and debits as follows:

All credits to your account that are received by the close of our business day will be processed to your account ﬁrst. Any credits that we initiate to your account, like interest payments, will be processed last. Credits received aer our business day cutoﬀ time will be processed the next business day. We will post credits from the highest to lowest dollar amount, regardless of the order in which we receive or process them.

Aer we have processed any credits to your account, we will process debits. First, we group any similar types of debits (like all checks) together into separate categories. Then, we process those debits within each category in a speciﬁc order such as by dollar amount. For some debits, we will know the time you made the transaction. This allows us to post the debit closer to the time you actually made the debit transaction instead of by dollar amount.

To help you better understand our debit processing, we have created the following table that includes both the category of debits to be processed and our processing order for each:

Processing Order Debit Category How Processed Examples Case 1:19-cv-00473g Documentg 1-2y Filed 01/24/19 Page 6 of 34 PageID #: 34 Examples

• Manually approved Debits deferred from checks and ACH a prior day for transactions manual review due to • Overdra and Lowest dollar 1 insuﬃcient or nonsuﬃcient funds amount to highest. unavailable funds (bounced check) fees and related fees from the prior business day

• Teller and ATM Date and time, if withdrawals available. Everything Cash or cash-like 2 • Wire Transfers else from lowest withdrawals • Capital One loan dollar amount to payments highest.

Customer initiated Date and time, if • Stop payment service charges and available. Everything request 3 fees (except else from lowest • Check re-order fees overdra transfer dollar amount to • Wire transfer fees protection fees) highest.

Date and time, if • One-time and available. Everything Debit card 4 recurring debit card else from lowest transactions and fees transactions dollar amount to highest.

• Automatic Date and time, if payments you Automated available. Everything authorize, like 5 Clearinghouse (ACH) else from highest mortgage payments transactions dollar amount to or monthly utility lowest. bills

• Check payments Checks and other • Capital One Bank Highest dollar 6 payment items Online Bill Pay amount to lowest. transactions

Bank initiated • Returned items Highest dollar 7 transaction fees chargeback fee amount to lowest.

Certain Capital One • Overdra Bank account-to- protection account Highest dollar 8 account funding transfers amount to lowest. transfers and related • Sweep account fees transfers

• Account interest Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 7 of 34 PageID #: 35 • Account interest Credits and debits payments (credits) Credits ﬁrst, then 9 that we initiate • Monthly account debits. fees (debits)

Uncollected/Held Funds. We reserve the right to return and/or refuse to pay any check, in-person withdrawal, ATM withdrawal or other electronic item or instruction which is presented for payment against uncollected/held funds. If you have a commercial account, a fee may be deducted from the account for any item drawing against uncollected funds, whether the item is paid or returned unpaid, in accordance with our current Schedule of Fees and Charges.

Returning Items for Insufficient Funds. You do not have the right to write a check or dra, to make an ATM or other withdrawal, or to initiate or have an automatic debit processed against your account for an amount that exceeds your available balance (If you’re enrolled in an overdra protection, we’ll transfer available amounts to cover the transaction in accordance with the agreement governing your overdra protection plan). At any time before final payment (as defined in the Uniform Commercial Code) we may return any check, dra, image, negotiable order of withdrawal, electronic debit or other item presented for payment against your account when there are insufficient available funds in your account to pay the item or if for some other reason the item is not good or payable. In addition, we may charge a fee for each item returned in accordance with our current Schedule of Fees and Charges.

Overdras. This section applies to consumer accounts. Business-purpose accounts may have diﬀerent policies.

What is an overdra? An overdra occurs when you do not have enough money in your account to cover a debit transaction, but we pay it anyway. Debit transactions include your checks, Automated Clearinghouse (ACH) transactions, bill payments, regularly scheduled repeating payments (like your mortgage or car payments) and other withdrawals you make.

How do we handle overdra items? Our decision to pay an item into overdra is solely within our discretion. We may refuse to pay an overdra item at any time, even though we have previously paid overdras.

When deciding to pay debit transactions that cause an overdra, we consider a variety of factors, including the size of the transaction, whether your account is in good standing and/or your history with us, including whether you’ve previously had too many overdras on your account(s). We also consider the type of overdra service you have on your account.

If we choose to pay an item into overdra, you must promptly make a deposit into your account to cover the overdra and any fees charged.

What overdra services do we oﬀer? For all checking accounts, we will consider paying your checks, ACH (such as your mortgage payment), bill payments, withdrawals and recurring debit card transactions (like your monthly gym payment) into overdra rather than returning the item unpaid.

We also oﬀer an additional overdra service that you can opt into. If you opt into this service we will also consider paying your everyday one-time debit card and ATM transactions.

Do we charge a fee for overdra items? An overdra fee will be charged if your account balance is below zero when the item posts to your account, but we pay the item anyway. It is important to remember that authorization of a transaction and payment of that transaction may not occur on the same day. For example, your debit card transaction is paid when the merchant requests payment of a transaction that we previously authorized-which can be days aer the authorization.

We generally charge a fee for each overdra item, but the following exceptions apply: Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 8 of 34 PageID #: 36 We will not charge a fee for one-time debit card transactions (such as a point of sale purchase at a store) and ATM transactions unless you opt into our optional overdra service. Note that a merchant may miscode a one-time debit transaction as a recurring transaction. If this happens, you may be charged a fee if we pay that transaction into overdra.

We will not charge more than four (4) overdra fees per business day.

We will not charge overdra fees if your account balance is overdrawn $5.00 or less at the end of the business day. This fee waiver is based on your total overdra balance and not the amount of the transactions. Therefore, if your account is overdrawn by $5.00 or more, a fee will be charged on each overdra transaction (up to four) regardless of the amount of the transaction.

What else do you need to know? Other intervening transactions that occur while authorized debit card transactions are pending may create overdras on your account. Here is an example of how that could happen:

You’re enrolled in our optional overdra service. Your account balance is $100.00. On Monday, you go to the store and use your debit card to make a purchase for $80.00. We authorize the transaction; however, the merchant doesn’t send us the transaction for payment and posting to your account on that day. On Tuesday, you withdraw $30.00 from an ATM, reducing your account balance to $70. On Wednesday, the merchant requests payment for the $80.00 transaction authorized on Monday, and you’re charged a fee because the balance in your account is insuﬃcient to pay the transaction at that time.

Available Balance Transaction 2 Description 1 Account Balance Amount

Monday $100

Signature debit card transaction ($80) $20 $100 authorized

Tuesday

ATM withdrawal post to the account ($30) ($10) $70 3

Wednesday

Signature debit card ($80) ($10) ($10) transaction paid

Overdra fee on ($35) ($45) ($45) debit transaction

1. Available balance – the amount of money available for withdrawal or for your use. Your available balance does not include funds that subject to a hold, dispute or legal process. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 9 of 34 PageID #: 37 2. Account balance – this is your current balance and includes all holds on your account. Your account balance does not include pending debits and deposits that have not posted to your account. 3. We do not charge a fee for this transaction because your account balance is positive.

You can avoid overdra fees on your account by always making sure you have money in your account to cover all of the debits presented for payment against your account.

Stop Payment Orders. You or any one of the signers on your account may request us to stop payment on a check written on your account by providing us with the account number, the date of the check, the check number, the exact amount of the check, and the name of the person to whom the check was made payable. You understand that unless we have complete and accurate information from you, we may be unable to identify the check for which a stop payment has been requested which will result in the check being paid. We also require a reasonable amount of time to act on the request. If two or more signatures are required to transact business, we may accept any ONE authorized signature for a stop payment order.

Under certain circumstances, current transaction information may not be available, and the item upon which a stop payment has been requested may already have been paid. If the item upon which you have stopped payment has already been paid, we will refund the stop payment fee at your request. Written stop payment orders expire aer six (6) months. All stop payment orders entered by you through Teleservice24℠ expire six months from the date entered unless otherwise renewed by you in writing before they expire.

Unless stop payment orders are renewed in writing, Capital One Bank assumes no responsibility if the item is paid aer the expiration of the stop payment order. You will be charged a fee for initial and renewed stop payment orders.

You may not stop payment on a check that is used to purchase a Cashier’s Check, on the purchased Cashier’s Check (except as otherwise provided by applicable law), or on any item that has already cleared or has been paid.

Automated Processing. In accordance with general banking standards, we have adopted automated collection and payment systems which rely on information encoded onto each check in magnetic ink. You agree that we may disregard all information on any check drawn on your account (front and back) other than your signature, the amount of the check and the information encoded in magnetic ink. You further agree that we shall not be deemed to have failed to exercise ordinary care in paying an item solely because our procedures do not require us to perform a sight examination of items with a face amount below a threshold level established by us from time to time.

Postdated Checks. If you write a post-dated check, we may pay it and charge it against your account, even if it is presented prior to the date of the check.

Stale Checks. We are not obligated to pay a check presented for payment more than six months aer its date (a “Stale Check”). Notwithstanding the foregoing, you agree to hold us harmless if we pay a Stale Check. If you do not want us to pay a Stale Check, you must place a stop-payment order on the check.

Restrictive Legends. We are not required to honor any restrictive legend placed on checks you write. Examples of restrictive legends placed on checks are “must be presented within 90 days” or “not valid for more than $1000.00”. We are not responsible for any losses, claims, damages, or expenses that result from your placement of these or other special instructions on your checks.

Dras Which Do Not Bear Your Signature. If we receive a dra drawn against your account which does not contain your signature as reﬂected on the signature card for your account we may, at our discretion, return the dra unpaid. If you wish to ensure that a dra drawn against your account but not bearing your signature will be paid, you must communicate to us in advance that you want the dra to be paid.

Facsimile Signature/System-Generated Signatures. If you authorize us to honor any facsimile or system- generated signature, you have the sole responsibility for maintaining the security of each signature aﬃxing Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 10 of 34 PageID #: 38 device or system. No facsimile or system-generated signature shall be deemed to be an unauthorized signature notwithstanding the lack of authority of the person(s) aﬃxing such signature, and you shall be solely responsible for any and all losses incurred in connection with the use of the facsimile or system-generated signature.

Checks Presented Over The Counter For Payment By a Non-Customer. To the extent permitted by applicable law, you agree that if a check drawn against your account is presented over-the-counter for payment by a person who is not a deposit customer of Capital One Bank we may, in our sole discretion, refuse payment of the check or charge a fee for payment of the check.

Power of Attorney. Power of attorney is a legal arrangement in which a person (the principal), authorizes another person (the agent/ attorney(s)-in-fact) to act on his or her behalf with respect to certain matters. Such matters may include banking, retirement beneﬁts, real estate, insurance, and other transactions. If you want someone other than an authorized signer on your account to transact business on your account, you must provide us with a form reasonably acceptable to us which identiﬁes the person to whom you grant your power of attorney and each account for which you wish the agent to exercise the power of attorney.

We have no duty or agreement whatsoever to monitor or insure that the acts of the agent are for your beneﬁt. We may continue to honor the transactions of the agent until: (a) we have received written notice or have actual knowledge of the termination of the authority or the death of the principal, and (b) we have had a reasonable opportunity to act on that notice or knowledge. You agree not to hold us responsible for any loss or damage you may incur as a result of our following instructions given by an agent acting under a valid power of attorney.

Death or Incompetence. If any person with a right to withdraw funds from your account(s) dies or becomes legally incompetent, we must be promptly notiﬁed. We may continue to honor your checks, items and instructions until (a) we know of your death or legal incompetence, and (b) we have had a reasonable opportunity to act on that knowledge. You agree that we may pay checks drawn on or before the date of death or legal incompetence unless ordered to stop payment by someone claiming interest in the account. We may restrict access to your account upon notice of your death or legal incompetence until the appropriate documentation is provided to us by your executor, administrator or other legal representative of your estate or person.

Grant of Security Interest and Right to Set-Off. To secure payment of any monies that you may owe us or any of our affiliates, for any reason, you grant us a continuing security interest in all funds that you may now and in the future maintain on deposit with us, with the exception of funds held in a trust or fiduciary account, or in an Individual Retirement Account, or in other qualified tax-deferred accounts. You agree that we may apply (set- off) funds that you maintain on deposit with Capital One Bank, or any of its affiliates, against any amount that you may then owe us, or any of our affiliates, under a loan, or Overdra, or guaranty, or for any other reason at any time and without prior notice to you. This right of set off does not apply if the debt is created under a consumer credit card plan. We may set-off your account at any time whether or not you are then in default in making payment to us, and we may exercise our right of set-off without liability to you even if it results in an interest penalty or dishonor of subsequent checks and other items with respect to your account. You further agree that the foregoing right extends to any federal or state benefit payments (including Social Security benefits) electronically deposited into your account. You understand and agree that if you do not want your benefits to be subject to our right of set-off, you may change your direct deposit instructions by providing notice to the benefits payor at any time. You also agree that any federal benefits or other payments deposited to your account aer you are no longer eligible to receive benefits must be returned to the federal government or other payor, and we may set-off against any of your accounts if we are obligated to return funds to the payor. Our right to set-off your account is in addition to any other rights and remedies that we may have under law or under any other contractual agreement.

Collection Expenses. You agree to pay and reimburse us for our reasonable costs and expenses in attempting to collect amounts that you owe us arising out of transactions on your account. This includes payment and reimbursement of fees we incur for collecting such amounts, including, without limitation, attorneys’ fees (including our in-house attorneys) and court costs. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 11 of 34 PageID #: 39 Adverse Claims. If we receive conﬂicting instructions with respect to your account, or notice of an adverse claim of ownership, right to control, or access to funds in your account, or notice that the funds in your account may have been obtained through fraudulent or criminal acts, you agree that if any such dispute exists, we may place a hold on the funds in your account and refuse to honor all withdrawal and transfer requests, including checks written on the account, until all appropriate parties provide us with joint speciﬁc written instructions with respect to disposition of the funds. We are not required to determine whether a dispute has merit. Additionally, we shall have the right to close the account and deposit the funds held in the account into the registry of a court of proper jurisdiction, wherein the adverse claimants and/or appropriate parties shall be interpleaded and/or joined to the action for purposes of resolving the dispute regarding the funds. If we elect to take any action(s) described herein, you agree that we shall not be liable to you for damages of any kind, and you agree to pay and reimburse us for our reasonable costs and expenses including, without limitation, attorneys’ fees (including our in-house attorneys) and court costs from the funds in the account prior to any distribution. If an adverse claim is made among joint depositors, the rights of the parties shall be determined in accordance with the section herein entitled Special Rules for Multiple Party Deposit Accounts.

Legal Process Against Account. If your account is attached, garnished, or otherwise subject to levy or seizure, in whole or in part, by legal action, we shall not be liable to you for any sums we may be required to pay because of such attachment, garnishment, levy or seizure, even if paying the money from your account leaves insuﬃcient funds to pay a check you have written. We can restrain your account regardless of the location of the account and the location of service. For example, if a New York levy is properly served on us in New York, we may honor the New York levy even if your account was opened in Virginia. You hereby authorize us to comply with legal process, and we are not required to determine whether the court issuing the legal process had jurisdiction over you or over the account or otherwise had the authority to issue the legal process. If we incur any expenses, including without limitation, reasonable attorney fees, in responding to an attachment, garnishment, levy, or seizure that are not otherwise reimbursed, we may charge such expenses to your account without prior notice to you. Any such attachment, garnishment, levy or seizure is subject to our right of oﬀset. If we are served with a notice of proceeding relating to a safe deposit box, and you are not a named defendant in the proceeding, we may deny you access to the box unless otherwise directed by an appropriate court or the judgment creditor.

Unclaimed Property/Dormant Accounts. The law establishes procedures under which unclaimed property must be surrendered to the applicable State. The applicable State is usually the State listed in the address on your account statement. Generally, the funds in your account are considered unclaimed if you have not had any activity or communication with us regarding your account over a period of years. If your funds are surrendered to the State, you may be able to reclaim them, but your claim must be presented to the State. Once your funds are surrendered, we no longer have any liability or responsibility with respect to the funds.

If your account becomes dormant, you may be unable to conduct certain transactions until veriﬁcation of account ownership. Please ask a relationship banker if you want further information about the period of time or type of activity that will prevent your account from becoming dormant.

Closing an Account. We may close any account in our sole discretion at any time, for any or no reason and without notice to you. For example, we may close your account with no notice of action if the account has a zero balance. If we close your account with a balance, we will notify you of our action and send you a check for the collected balance in your account, less any amounts due to us or for checks in process. Capital One Bank is not liable for any damages or liabilities resulting from the termination of an account relationship. Subject to any rights we may have with respect to advance notice of withdrawal from your account, you may close your account at any time and for any reason. If we receive a deposit, check or other debit item to your closed account, the account may be reopened to accept the deposit or debit for you, even if doing so overdraws your account, and funds deposited therein will be subject to any and all rights we may have with respect to oﬀset. If your account is overdrawn when we close it, you agree to promptly pay all amounts owed to us.

Minor Accounts. We may pay funds on deposit in an account in the name of a minor to the minor. Once the minor attains the age of majority he or she will be considered to be the owner of the account, capable of making any and all transactions on the account. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 12 of 34 PageID #: 40 Business Accounts. If the account owner is not a natural person, such as a corporation, unincorporated association, limited liability company, partnership or any other entity holding an account in any capacity other than an individual capacity, each person who signs the signature card hereby certifies that they are fully authorized to execute all documents in their stated capacity. Additionally, where applicable, the individual who signs the signature card as Secretary hereby certifies that (1) she/he is the duly qualified Secretary or other authorized officer of the business entity identified on the signature card as the account holder; (2) such business entity is organized and existing under state or federal law; (3) all actions by shareholders, directors and all others necessary to execute this signature card and establish an account with Capital One Bank have been taken; and, (4) until further actual notice to Capital One Bank, each signer is authorized to transact on the account until Capital One Bank receives actual written notice in a form acceptable to us, executed by the number of Signers required to execute withdrawals on the account, and/or executed by others as required by us, that such Signer is no longer so authorized. In the event any one or more of the signatures affixed to the front of this signature card, or otherwise provided to Capital One Bank as an authorized signature for the operation of this account, are facsimiles or made or reproduced by any mechanical means, Capital One Bank is authorized to rely upon and treat the same, in good faith, as a true and valid signature, and the account holder hereby holds Capital One Bank harmless and indemnifies it from and against any loss, damage or liability it may suffer or incur as a result of its said reliance.

Multiple-Signer Business Accounts. We are not required to comply with any multiple-signature requirement, even if your signature card speciﬁes that multiple signatures are required or you have otherwise instructed us to do so. A multiple-signature requirement is for your internal control purposes.

Online Account Consolidation Disclosure. If you have more than one eligible Capital One account, we will link your eligible accounts so they appear when you are logged into your account through the website or mobile app. We will display only summary information about your connected accounts. To get any other information or conduct any activity on these account types, you must access the speciﬁc account servicing area for that account. All connected bank accounts will be visible when you log into your account through the website or mobile app. Keep in mind that certain features, information, types of transactions, or other services may not be available for all of your connected accounts. As long as you maintain your unique log in credentials, you will have access to view all of your individual accounts and shared accounts. People with whom you share accounts will only be able to view accounts that are shared with you, not your individual accounts.

Payment Processing Restrictions on Internet Gambling Fund Transfers. The Federal Reserve recently enacted regulations that require U.S. financial firms that participate in designated payment systems to establish and implement policies and procedures reasonably designed to prevent payments connected to unlawful Internet gambling. In light of the regulations, please be informed that restricted transactions (as defined in Federal Reserve Regulation GG / 12 CFR Part 233) are prohibited from being processed directly or indirectly through any account or relationship maintained with us. Restricted transactions generally include, but are not limited to, those in which credit, electronic fund transfers, checks or dras are knowingly accepted by gambling businesses in connection with unlawful Internet gambling.

Speciﬁc Terms Applicable to the Following Account Ownerships.

Joint Account – If two or more individuals are designated as owners of the accounts (without a ﬁduciary, beneﬁciary or other designation), then the account is a joint account and, unless your signature card states otherwise, all owners are considered to be joint tenants with right of survivorship. If there is more than one joint owner, the rights of survivorship will continue between the surviving joint owners. One joint owner is not authorized to remove another joint owner from the title of the joint account, but may withdraw all of the funds in the account or close the account.

Trust — An account established pursuant to a written trust agreement. Any funds placed in or added to this type of account are conclusively presumed to be a delivery at that time to the trust estate. Only the trustee is authorized to perform transactions on the trust account. If the original trustee dies or is replaced as trustee, we reserve the right to require documentation reasonably acceptable to us to which identifies the successor trustee. We have no duty whatsoever for enforcing the terms of the trust agreement and can rely on the Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 13 of 34 PageID #: 41 statements and representations made to us by the trustee. The owners and beneficiaries of the trust agree that we shall not be held liable if the trustee breaches their fiduciary duty or fails to comply with the terms of the trust agreement.

Uniform Transfers to Minors — This type of account is established pursuant to the Uniform Transfers/Gis to Minors Act in eﬀect in the state where the account is opened and maintained, as may be amended from time to time. Only the Custodian is authorized to act on the account. As the Custodian you agree to comply with all applicable laws. When the minor reaches the age of majority, in accordance with applicable state law, the Custodian shall transfer any funds in the account to the minor. In the event we receive actual notice of the death, resignation or legal incapacity of the Custodian, we are directed to deliver this account to the Successor Custodian (as provided by law) who shall, in such event, have all of the rights and duties of the Custodian.

“Payable on Death” (POD) – You may designate an individual or joint account to be payable upon your death to a designated beneﬁciary or beneﬁciaries. POD accounts are also known as “In Trust For” (ITF)”, “As Trustee For” (ATF), “Transfer on Death” (TOD) or “Totten Trust” account and are governed by applicable state laws and regulations. You are solely responsible for meeting the requirements for establishing your account as a POD, including any titling requirements.

During your life, the funds in the account belong to you and, until your death, or if there are co-owners, upon the death of the last co-owner, the beneficiary(ies) have no interest in the account and cannot perform transactions on the account. You may withdraw all or part of the account balance, close the account, remove or add POD beneficiaries or change the account type or ownership. Upon the death of all owners, we will distribute the then remaining funds to such of the beneficiaries as shall be then-living, in equal shares, subject to our right to charge the account for any amount a deceased owner, co-owner or POD beneficiary owes us; if any beneficiary is under the age of 18 years at the time he would be entitled to receive property under the terms of the previous provision, we will pay such person’s share to any person who is the statutory or court-appointed custodian for the benefit of such person.

Special Rules for Multiple Party Deposit Accounts.

If your account was opened or assigned to a branch in New Jersey, the provisions of the Multiple Party Account Act, N.J.S.A. 17:16i-1 et seq. apply.

1. We may treat each co-owner of a joint account as having full and complete authority to make deposits into such account, to request information with respect to such account and to place a hold on such account. Each co-owner owns his/her net contribution to such account. In the absence of proof of net contribution, and unless all of the co-owners have speciﬁcally otherwise agreed, each co-owner will own an equal share of such account. We are not required to determine net contributions.

2. Deposits: Each co-owner authorizes the other co-owners to endorse for deposit into the account any item payable to any or all of the co-owners, and you expressly authorize us to supply the endorsement of any co-owner necessary for such deposit.

3. Withdrawals:

A. You authorize us to recognize the signature, oral or electronic instruction of any co-owner for withdrawals, payments or funds transfer. We are not required to enforce multiple signature requirements that you may have agreed upon among yourselves.

B. We may continue to honor checks and withdrawal requests by any co-owner without liability to any other co-owner unless we receive written notice signed by one of you not to honor checks or withdrawals against the joint account. Aer we receive such a notice, we may require written authorization from all of you for any checks or withdrawals. If we receive a notice in writing as provided by this section 3(b), we shall be relieved of responsibility to each and every co-owner for failure or refusal to honor any check, dra or other demand for payment or withdrawal unless the action is authorized by all co-owners in writing. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 14 of 34 PageID #: 42 4. Without notice to any party, we may withdraw or hold any or all of the money in the joint account and apply funds withdrawn to reduce any indebtedness of any party due and owing to Capital One Bank. A notice sent, mailed or delivered to any party constitutes notice to all.

5. We may make payment from the joint account, including payment of the entire account balance: (i) pursuant to any statutory or common law right of set-oﬀ, levy, attachment, or other valid legal process or court order, relating to the interest of any one or more of the co-owners or (ii) on request, to a trustee in bankruptcy, receiver in any state or federal insolvency proceeding or other duly authorized insolvency representative of any one or more of the co-owners.

6. Overdras: In the event that we pay a check drawn on a joint account and that payment causes an Overdra, each party to that joint account will be jointly and severally liable to us for the amount of that Overdra without regard to which party signed the check or for what purpose the proceeds of the check were used.

7. Death of a Party: You agree to notify us of the death of any joint owner and to reimburse us for any tax we must pay by reason of our payment or release of funds in the account to you. Unless your signature card states otherwise, upon the death of any account owner, the funds in a multiple-owner account shall belong to the surviving owner(s). We reserve the right to hold funds in the account until we receive documentation satisfactory to us, proving death and/or directing the disposition of such funds.

8. If you want to change the form of your account, you must notify us in writing, by certified or registered mail, return receipt requested, addressed to the branch where your account is maintained. If you wish to alter the form of an account, the altered form must be an account offered by Capital One Bank and written notice must be made by the proper completion of a document approved by Capital One Bank and delivery of that document to us. Written notice is not effective until received by us. You must also provide us with new completed signature cards within thirty (30) days from the date you forwarded written notice to us.

9. We will be protected from liability for all payments made from the multiple party deposit account, when made in accordance with applicable law.

Limitations on Assignment and Transfer of Ownership. You may not assign or transfer ownership of your deposit accounts with us without obtaining our prior written approval. In addition, you may not grant a security interest in funds held in your deposit accounts in favor of any other creditor without obtaining our prior written approval, which we have the right to withhold for any or no reason. If any ownership interest in an account is proposed to be transferred or if there is any change in account title, we may require that the account be closed and a new account be opened.

Deposit Availability Disclosure.

General Deposit Availability:

Our general policy is to make funds from your deposits available to you on the first business day aer the day we receive your deposits. Wire Transfers, and electronic deposits (such as ACH credit transfer direct deposits) will be available on the day we receive the deposit. Once funds are available, you may withdraw the funds in cash, and we will use the funds to pay checks that you have written. For the purpose of determining the availability of your deposits, every day is a business day except Saturdays, Sundays, and federal holidays. Banking office cutoff times may vary, but in no event shall a cutoff time be earlier than 2:00 p.m. local time. If you make a deposit in a branch before 2:00 p.m. local time, or such later time posted at the branch of deposit on a business day that we are open, we will consider that day to be the day of your deposit. If you make a deposit at one of our automated teller machines (“ATM”) before 9:00 p.m. ET, we will consider the deposit to be made that day. However, if you make a deposit aer these stated times, or on a day we are not open, we will consider the deposit to be made on the next business day that we are open. Deposits made through our night drop aer 7:00 a.m. may be processed on the next business day. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 15 of 34 PageID #: 43 Please remember that even aer we have made deposited funds available to you, and you have withdrawn the funds, you are still responsible for checks you deposit that are returned to us unpaid and for any other problems involving your deposit. If you have any questions, contact a banking officer.

1. Government Checks and Cashier’s Checks:

If you make the deposit in person to one of our employees, funds from the following deposits will be made available on the ﬁrst business day aer the day of your deposit:

State government checks and checks drawn on other local governmental entities if the check is payable to you and if you request next day availability when making the deposit at the teller line.

Cashier’s, certiﬁed or teller’s checks if they are payable to you and you request next day availability when making the deposit at the teller line.

If you do not make your deposit in person to one of our employees (for example, if you mail the deposit), funds from these deposits will be available on the second business day aer the day we receive your deposit.

2. Longer Delays May Apply:

In some cases, we will not make all of the funds you deposit by check available to you on the first business day aer the day of your deposit. Funds may not be available until the second business day aer the day of your deposit. The first $200 of your deposits, however, may be available on the first business day. If we are not going to make all of the funds from your deposit available on the first business day, we will notify you at the time you make your deposit. We will also tell you when the funds will be available. If your deposit is not made directly to one of our employees, or if we decide to take this action aer you have le the premises, we will mail you the notice by the day aer we receive your deposit.

If you will need the funds from a deposit right away, you should ask us when the funds will be available.

In addition, funds you deposit by check may be delayed for a longer period under the following circumstances:

We believe the check you are depositing will not be paid. You deposit checks totaling more than $5,000 on any day to any account(s) you maintain (alone or with others) at Capital One Bank. You redeposit a check that has been returned unpaid. You have overdrawn your account(s) repeatedly in the last six months. There is an emergency, such as failure of computer or communications equipment.

We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. The funds will generally be available no later than the seventh business day aer the day of your deposit.

3. Special Rules for New Accounts:

If you are a new customer, the following special rules will apply during the ﬁrst thirty (30) days your account is open:

Funds from wire transfers and electronic deposits (such as ACH credit transfer direct deposits) will be available on the day we receive the deposit.

Funds from the deposit of cash and the first $5,000 of a day’s total deposits of cashier’s, certified, teller’s, traveler’s, postal money orders and federal, state and local government checks will be available on the first business day aer the day of your deposit if the deposit meets certain conditions. For example, checks must be payable to you, and you may have to request next day Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 16 of 34 PageID #: 44 availability when making the deposit at the teller line. Funds in excess of $5,000 will be available no later than the fih business day aer the banking day of your deposit. If your deposit of these checks (other than a U.S. Treasury Check) is not made in person to one of our employees, the first $5,000 will not be available until the second business day aer the day of your deposit.

Funds from all other check deposits will be available no later than the ﬁh business day aer the day of your deposit.

4. Expedited Availability:

Based on your overall relationship with us, we may make a portion of your check deposits available to you on an expedited basis. We will periodically reevaluate the usage and handling of your account based on your customer history with Capital One Bank. This review could result in reducing the availability schedule currently applied to your check deposits. In the event of such a reduction, your funds will be made available to you as described in the preceding sections of this disclosure.

As described above, deposits made aer the branch and/or ATM cut-oﬀ time will be considered next day deposits. In some instances, however, you may be able to access these deposits on the calendar day the deposit was made. In these instances, the funds will be accessible to you for withdrawal (at a branch or ATM), but will not be available to pay incoming ACH transactions or checks you have written.

5. Holds on Other Funds (Check Cashing):

If we cash a check for you that is drawn on another bank, we may withhold the availability of a corresponding amount of funds that are already in your account. (These funds will be available at the time that funds from the check we cashed would have been available if you had deposited the check.)

6. Holds on Other Funds (Other Accounts):

If we accept for deposit a check that is drawn on another bank, we may make funds from the deposit available for withdrawal immediately but delay your availability to withdraw a corresponding amount of funds that you have on deposit in another account with us. The funds in the other account would then not be available for withdrawal until the time periods that are described elsewhere in this disclosure. Please ask a Relationship Banker if you are unsure about when funds from a deposit will be available.

Important Information Concerning All Deposit Accounts. Our Reserve Money Manager account system allows us to manage our Federal Reserve Bank balance requirements eﬃciently. Each deposit account in the system consists of two sub-accounts: a demand deposit account (“DDA”) sub-account which presently has a reserve requirement and a money market deposit account (“MMDA”) which presently has no reserve requirement. Although there are two sub-accounts, your account is considered a single account for your deposits and withdrawals, as well as for tax reporting, balance requirement, service charge and monthly statement purposes. The existence of the sub-accounts is for internal accounting and regulatory reporting purposes only and will not change the manner in which you use, obtain information about or earn interest on your account.

All checks, withdrawals and other debits will be paid from the DDA sub-account. We will automatically transfer balances from the MMDA sub-account to the DDA sub-account. No more than six transfers will occur in any monthly statement period. Should a sixth transfer be necessary, all funds in the MMDA sub-account will be moved to the DDA sub-account for the remainder of the month. These transfers will not appear on your monthly statement and will not be subject to any fees.

Substitute Checks and Your Rights. Federal rules for Check 21 allow banks to replace original checks with “substitute checks”. Below are the details and your rights:

What is a substitute 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 Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 17 of 34 PageID #: 45 original check. The front of a substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” You may use a substitute check as proof of payment just like the original check.

Some or all of the checks that you receive back from us may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or to electronic debits to your account. However, you have rights under other law with respect to those transactions.

What are my rights regarding substitute checks?

In certain cases, federal law provides a special procedure that allows you to request a refund for losses you suﬀer if a substitute check is posted to your account (for example, if you think that we withdrew the wrong amount from your account or that we withdrew money from your account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your account and fees that were charged as a result of the withdrawal (for example, bounced check fees).

The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You also are entitled to interest on the amount of your refund if your account is an interest-bearing account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law. If you use this procedure, you may receive up to $2,500 of your refund (plus interest if your account earns interest) within 10 business days aer we received your claim and the remainder of your refund (plus interest if your account earns interest) not later than 45 calendar days aer 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?

If you believe that you have suﬀered a loss relating to a substitute check that you received and that was posted to your account, please contact your local branch or call us at 1-800-262-5689. 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 if you were not able to make a timely claim because of extraordinary circumstances.

Your claim must include:

A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect); An estimate of the amount of your loss; An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and A copy of the substitute check and/or the following information to help us identify the substitute check: the account number, the check number, the name of the person to whom you wrote the check, the date paid, and the amount of the check.

Substitute checks should only be generated by banks during the check collection process. If you deposit a substitute check that was not generated or previously handled by Capital One Bank, you agree to provide the substitute check warranties as required by Check 21, and represent that the substitute check:

is properly generated and accurately, clearly and completely represents all the information on the front and back of the original check as of the time the original check was truncated bears a MICR encoded line that is suitable for automated processing in the same manner as the original check Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 18 of 34 PageID #: 46 has not previously been paid by the drawee bank, and is not fraudulent

A breach of any Check 21 warranty may result in the substitute check being charged back against your account.

Telephone Solicitation. If you provide our routing number and your account number to a telephone solicitor pursuant to your acceptance of an oﬀer of goods or services made by the solicitor, you agree that any and all subsequent transactions made to your account by the entity which the solicitor represents are considered authorized transactions. We shall not be liable for any transactions you later allege are unauthorized unless you have placed a stop payment order, and we have had a reasonable time to act upon your stop payment request.

Communications. You agree that we may communicate with you by mail, telephone, email, fax, prerecorded message, automated voice, text message or other means allowed by law regarding your Account. You agree that we may contact you at any telephone number (including a mobile telephone number that you provide us), and use an automated telephone dialing system or similar device to do so. You agree that we may monitor or record any conversation or other communication with you.

Correspondents. Capital One Bank may forward items to correspondent banks and will not be liable for the wrongful conduct of the correspondent bank. Each correspondent will be liable only for its own negligence. We will not be liable for the loss of items in transit.

Address Changes. You are responsible for notifying us of any change in your address. Unless we agree otherwise, changes of address must be made in writing by at least one of the account holders. Informing us of your address on a check reorder form is not suﬃcient. We will attempt to communicate with you only by use of the most recent address you have provided to us. In the event mail we attempt to deliver to you is returned as a result of your failure to notify us of your change in address, we may charge a fee to your account in accordance with our Schedule of Fees and Charges.

We may change your postal address of record if we receive an address change notice from the U.S. Postal Service or if we receive information from another party in the business of providing correct address information that the address in our records no longer corresponds to your address.

Cash Transaction Reporting. The law requires all ﬁnancial institutions to gather and report information on certain types of cash transactions. If the information required to complete the report is not provided, we are required to refuse to process the transaction.

Obtaining Credit Reports. We may request a consumer (credit) report in connection with your account(s). Upon your request, you will be informed whether or not a consumer (credit) report was requested, and if such report was requested, informed of the name and address of the consumer (credit) reporting agency that furnished the report. We may also request subsequent consumer (credit) reports for all legitimate purposes in connection with updating, renewing, reviewing, modifying, and/or taking collection action on your account(s).

Reporting Information to Credit Bureaus and Check Verification Systems. We may report information about your account to credit bureaus and/or check verification systems. Defaults on your account may be reflected in your credit report. This could affect your ability to open accounts in the future.

In the event we report your account to a check veriﬁcation system, you acknowledge that even if you pay us all amounts owed, we are not required to remove an accurate report of account mishandling from any such check veriﬁcation system.

Business Day. Any day, excluding Saturdays, Sundays and federal holidays.

Reproduction of Bank Records. If you request us to research and/or reproduce any of your records (statements, checks, deposits, withdrawals, etc.) we may charge a fee, and you agree to pay this fee. If the expected fee is large, you may be asked to pay the fee in advance. We reserve the right to provide any account holder with an imaged item in lieu of the original item. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 19 of 34 PageID #: 47 Governing Law/Waiver of Jury Trial. Applicable federal law will decide any questions under these Rules, or if no federal law exists, applicable state law (the state where your account was established). Any action you commence against us, arising out of or concerning these Rules, shall be heard by a judge sitting without a jury. In any such action, Capital One Bank shall be entitled to its reasonable attorney’s fees (including in-house attorney’s fees) and court costs.

Notices. We shall deem any and all notices to us effective upon receipt by us. Any notice that we give to you will be effective when mailed or electronically transmitted to you at the mailing/email address reflected in our records. Even though we may have provided you account opening disclosures in a language other than English, we may continue to provide you with notices/communications in English. Notice to any one owner of an account constitutes notice to all owners of that account.

Severability. If any provision of these Rules is deemed to be invalid or unenforceable, such invalidity or unenforceability will not aﬀect the validity and enforceability of the remaining provisions of these Rules or of any agreements, disclosures or other documents incorporated by reference herein.

Liability. You agree that we shall be not be liable for acting upon your instructions or failing to act upon your instructions when we reasonably believe that doing so would expose us to civil or criminal liability or conﬂict with industry standard banking practices. You agree further, that except as otherwise provided by applicable law, IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ATTORNEY’S FEES INCURRED BY YOU, REGARDLESS OF THE FORM OF THE ACTION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Waiver of Rights. We reserve the right to waive any one or more of our rights hereunder in our sole discretion, however, any such waiver shall only apply to that speciﬁc instance. Any such waiver of rights can also be terminated at any time, in our sole discretion.

Caption Headings. The caption headings in these Rules are for convenience purposes only and are not to be construed as a summary of each provision of these Rules.

Privacy Notice. We understand how important privacy and conﬁdentiality are to you. Please consult our Online Privacy Practices statement and our Privacy & Opt Out Notice for information about our commitment to you and your privacy rights. A copy of our Online Privacy Practices Statement and the Privacy & Opt Out Notice is available on our Website. Information regarding mobile banking security can also be found on our Website.

Electronic Funds Transfers. Special provisions relating to electronic funds transfers are set forth in our EFT Disclosure which is available at any of our banking oﬃces.

Wire and ACH Transfers. Special provisions relating to wire transfers are set forth in our Wire Transfer Agreement and Disclosure, provided to you at account opening and available at any of our banking oﬃces. For Treasury Management clients, ACH and Wire transfer terms are set forth in the applicable Treasury Management agreements. This provision supplements those agreements. You agree that we are not required to provide you with a separate notice of incoming or outgoing wire/ACH transfers. We notify you by listing the wire/ACH transfer on your account statement. We can deduct our fees for handling wire/ACH transfers from the amount of the transfer. You can verify whether a wire/ACH transfer has been processed to your account by calling us at 1-800-655-2265.

For international wire transfers involving non-U.S. currencies, exchange rates can vary and we do not guarantee any rate. The exchange rates we use for your transactions will typically be the customary retail exchange rates in eﬀect at the time of the transaction. This rate is not necessarily the bank-to-bank negotiated exchange rate or other potentially more favorable rate. FDIC deposit insurance does not insure against any loss due to foreign currency ﬂuctuations. Consult your attorney or investment advisor regarding the potential risks associated with foreign exchange transactions.

Amendments and Fee Changes. We reserve the right to change our fees, these Rules and any or all of the agreements, disclosures, and other documents incorporated by reference at any time. If we change these Rules, Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 20 of 34 PageID #: 48 the then-current version of these Rules supersedes all prior versions and contains the terms governing your account. We will provide prior notice of changes to you as required by applicable law. You agree that continued use of your account(s) will constitute your agreement to any and all new fees, Rules, agreements, disclosures and other documents incorporated by reference. If you choose to close your account and do so prior to the eﬀective date of any amendment, you will not be bound by such amendment.

Copy Received. You acknowledge receipt of a copy of these terms and conditions and agree to be bound by them.

ELECTRONIC FUND TRANSFER AGREEMENT AND DISCLOSURE FOR PERSONAL AND COMMERCIAL ACCOUNTS: Eﬀective June 6, 2018

Welcome to Capital One, N.A. (hereinaer referred to as “Capital One Bank,” “us,” “our,” or “we”). In this Agreement, “you,” “your,” and “yours” mean the authorized person or persons who conduct electronic fund transfers, including but not limited to persons to whom a Capital One Bank ATM or Debit Card is issued and anyone else you allow to use the ATM or Debit Card. Capital One Bank provides various electronic banking services to you. These services include, but are not limited to:

Automated Teller Machine (“ATM”) transactions. Telephone transfers. Point-of-Sale (“POS”) transactions, whether or not initiated through an electronic terminal. Pre-authorized transfers to or from an account (“ACH”). Smart phone or other mobile device transfers. Online banking (see the Online Banking Terms and Conditions at www.capitalone.com/corporate/terms/).

This Electronic Fund Transfer Agreement and Disclosure (“Agreement”) contains disclosures required by Regulation E that apply to consumer accounts in addition to disclosures that apply to commercial accounts as they relate to electronic banking services, and it contains our terms and conditions with respect to these services. A consumer account is an account held by an individual and used primarily for personal, family, or household purposes.

1. Your Access Device and Your Personal Identiﬁcation Number: An access device is a card, personal identiﬁcation number ("PIN"), or other code used to initiate an electronic fund transfer ("EFT") to or from your account. The Capital One Bank, ATM card, platinum Debit Card, or Business Debit Card (hereinaer referred to collectively as "ATM/Debit Card") that you have requested is an access device.

You have selected or have been provided with a special PIN, a code you must enter into the ATM or that you may be required to enter into the POS terminal whenever you use your ATM/Debit Card. For your own protection, please memorize the PIN, and do not keep any notation of the PIN on the ATM/Debit Card or in the same wallet or purse as the ATM/Debit Card, and do not disclose the PIN to anyone who is not authorized to use your ATM/Debit Card.

Important Information Concerning International Use of Your ATM or Debit Card: Capital One Bank employs fraud monitoring and protection capabilities to help protect you from ATM/Debit Card fraud. These protection systems are designed to block transactions that occur outside of our customers’ ordinary transaction patterns and may block transactions originating in countries that are experiencing a high incidence of card fraud. To avoid the inconvenience of having your ATM/Debit Card blocked while you are traveling abroad, please notify us before any international travel or international purchases by calling 1-800-655-2265 from inside the United States or 1-804-482-6066 collect from outside the United States. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 21 of 34 PageID #: 49 2. Accounts That May Be Accessed: The accounts you link to your ATM/Debit Card are referred to in this Agreement as "designated accounts." You may access only the designated accounts. If you requested access to multiple accounts, you chose one checking account and one savings account as your primary checking and savings accounts. We may limit the number of accounts that can be linked to an ATM/Debit Card. If you wish to access additional accounts or change your primary accounts, please contact your banking oﬃcer.

You may use your ATM/Debit Card and PIN to access the following types of designated accounts:

A. Checking account.

B. NOW account.

C. Savings account.

D. Money Market account*

* At certain ATMs, when accessing your Money Market accounts you may need to select the ‘checking’ option rather than the ‘savings’ option.

3. Types of Transactions That Can Be Completed: You may use your ATM/Debit Card at any Capital One Bank ATM. You may also use your ATM/Debit Card to complete transactions at non-Capital One Bank ATMs that are members of the EFT networks in which we participate.

Purchases may also be made using your ATM/Debit Card at merchant locations that are members of the POS networks in which we participate. You may also use your Platinum Debit Card or Business Debit Card to make purchases at locations that accept Debit MasterCard™ Cards. (Note: Your Platinum Debit Card or your Business Debit Card is not a MasterCard credit card, and this Agreement does not replace or aﬀect any MasterCard account agreement that you may have with us or any other ﬁnancial institution.)

Please note that some of the below services may not be available at all ATMs.

A. Cash Withdrawals: You can use your ATM/Debit Card and PIN at ATMs to obtain cash withdrawals from your designated accounts. At certain ATMs, cash withdrawals may only be made from your primary savings and primary checking account. Withdrawals made at ATMs owned and operated by other entities will be automatically deducted from your designated primary checking or savings account. Each time you use your ATM/Debit Card, we may place a hold on a corresponding amount of funds in your account until the transaction is posted against your account.

B. Deposits: You can use your ATM/Debit Card and PIN at Capital One Bank-branded ATMs to make deposits into your designated accounts. Deposits made at an ATM may not be available for immediate withdrawal. Please refer to the Deposit Availability Disclosure contained in our Rules Governing Deposit Accounts Agreement to determine when the deposit will be credited to your account and when funds will be available for withdrawal or for paying transactions on your account.

C. Transfers Between Your Capital One Accounts: You can use your ATM/Debit Card and PIN at a Capital One Bank-branded ATM to transfer available funds between your designated accounts. Transfers made at a non-Capital One Bank ATM can only be made between your designated primary checking and primary savings accounts.

You may also transfer funds between your Capital One Bank accounts via the telephone, online banking, or by establishing an automatic transfer schedule.

D. Purchases: You can use your ATM/Debit Card and PIN to make purchases at merchant locations that are members of POS networks in which we participate. At certain Capital One Bank-branded ATMs, you can also use your ATM/Debit Card and PIN to purchase non-monetary items (such as gi certiﬁcates). Purchases of this type may also be made at certain non-Capital One Bank ATMs. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 22 of 34 PageID #: 50 You may also use your ATM/Debit Card without your PIN to make purchases at merchant locations accepting Debit MasterCard Cards. The merchant may request a preauthorization for the transaction. If we authorize the transaction, the funds will be debited from your primary checking account immediately, or a hold may be placed on your account for up to several days aer the purchase transaction has occurred, depending upon the promptness with which the merchant processes your transaction.

Some purchases may result in a longer hold. Sometimes the preauthorization requests may be in amounts diﬀerent from the total amount of the transaction. For example, a gas station typically requests authorization in the amount of $1.00. Also, restaurants typically request authorization for 20% more than the price of the meal. If the preauthorization request varies from the amount of the actual transaction, payment of the transaction may not remove the preauthorization hold immediately. Generally, the preauthorization hold may remain on your account for up to three (3) business days aer the date of the transaction and may aﬀect the availability of funds from your designated account for other transactions. We will not be responsible for damages for wrongful dishonor of an item resulting from a preauthorization hold. You agree not to withdraw, write checks, or make point-of-sale purchases against funds that are needed to pay ATM/Debit Card transactions that have not yet posted against your account.

E. Inquiries: You can use your ATM/Debit Card and PIN at ATMs to check the balance in your designated accounts. At non-Capital One Bank ATMs, you may only make balance inquiries on your designated primary checking or savings account. You may also check the balance in your designated accounts via our telephone or online banking service.

F. Transfers Between Your Capital One Bank Accounts and Accounts at Other Financial Institutions (or Third Parties) and Check Conversion: You can authorize a third party to initiate transfers between your accounts and the third party’s accounts by providing the third party with our routing number and your account number.

You may also authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to: (i) pay for purchases, or (ii) pay bills.

When you provide a check as payment, you authorize us to use information from your check to make a one-time electronic fund transfer from your account. In certain circumstances, such as for technical or processing reasons, we may process your payment as a check transaction. When we use information from your check to make an electronic fund transfer, funds may be withdrawn from your account on the same day you make your payment.

You should only provide your ﬁnancial institution and account information (whether over the phone, the Internet, or via some other method) to trusted third parties whom you have authorized to initiate electronic fund transfers.

4. Limitations on Transactions: There are certain limitations on the use of electronic banking services. These include, but are not limited to, the following:

A. Designated Accounts: You may only access your designated accounts with Capital One Bank.

B. Daily Limitation: A daily withdrawal limitation exists on all ATM/Debit Cards. This limitation combines two categories: cash withdrawals and point-of-sale purchases. There is no limit on the number of transactions that may be completed. You may not aggregate withdrawals during any one (1) day (including either cash withdrawals, purchase withdrawals, or a combination of both) that exceed the established card limit. See the chart below for the limits established for the card product that you have. The limits listed below are default limits for our standard ATM/Debit Card products. Different limits may be assigned to individual cards on a case-by-case basis. We do offer specialty ATM/Debit Cards with different default limits. If you have received a Wealth Management debit card or a Deposit Only ATM card, please refer to the documentation you received when you opened your account for details about limits for these cards.

Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 23 of 34 PageID #: 51

Established Card Cash Limit POS Limit Limit

Platinum Debit $2,500 $600 $2,500

Business Debit $5,000 $800 $5,000

ATM Card $2,500 $600 $2,500

Other ATM owners and operators may impose lower dollar limitations on the amount of cash withdrawals made at their ATMs.

C. Online Banking External Funds Transfer Limitation: You may enroll in online banking to perform electronic transfers. When you enroll, you will be provided with additional terms and conditions that apply to electronic transfers using our online banking services. The below charts provide the default limits established for online banking transfers into and out of your designated accounts. Diﬀerent limits may be assigned on a case-by-case basis. These limits do not apply to internal transfers between accounts opened in a Capital One Bank branch and accounts opened with Capital One Direct Banking accounts (both National Direct Bank [NDB] and 360 accounts), bill pay transfers, or pre-authorized third party payments.

The below limits apply to High Yield Checking and High Interest Checking accounts:

Per Transfer Daily Limit Monthly Limit Limit

Inbound Transfer $10,000 $10,000 $25,000

Outbound Transfer $10,000 $10,000 $25,000

Total Transfer Limit (Combined Inbound $20,000 $50,000 and Outbound)

The below limits apply to all other products (excluding High Yield Checking and High Interest Checking accounts):

Per Transfer Daily Limit Monthly Limit Limit

Inbound Transfer $3,000 $3,000 $6,000

Outbound Transfer $3,000 $3,000 $6,000

Total Transfer Limit (Combined Inbound $6 000 $12 000 Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 24 of 34 PageID #: 52 (Combined Inbound $6,000 $12,000 and Outbound)

D. Third Party Transaction Limitation: Savings and money market accounts are permitted no more than six (6) transfers per statement cycle to a third party or to another account of the depositor at Capital One Bank. Please see our Rules Governing Deposit Accounts for more information on transaction limits.

E. Other Reasons: We and other ATM owners and operators may limit or refuse to complete your ATM/Debit Card transactions for security or technical reasons.

We may also suspend your ATM/Debit Card if we consider your designated account to be inactive or dormant.

5. Overdra Situations: An overdra occurs when you do not have enough money in your designated account to cover a transaction, but we pay it anyway. Generally, we will not authorize and pay overdras for ATM withdrawals and everyday debit card transactions against your designated account unless you have authorized us to do so.* You understand and agree that even if you have authorized us to do so, you have no right to overdraw your account at any time, for any reason, and our decision to pay overdra items is solely within our discretion. You further agree that if we elect to pay overdra items, you must deposit additional funds into your designated account immediately in an amount sufficient to cover the overdra and to pay us overdra fees for each overdra item in accordance with our then current Schedule of Fees and Charges. Available credit on an overdra protection line of credit associated with the designated account may be used to fund ATM/Debit Card transactions when you do not have sufficient collected funds in your designated account(s). If the amount of the overdra causes you to exceed the amount of credit available on the overdra protection line of credit or balance in the overdra protection deposit account linked to the overdrawn deposit account, you agree to pay the amount by which the deposit account has been overdrawn plus all associated fees and charges as reflected in our then current Schedule of Fees and Charges and the applicable line of credit agreement. Capital One does not charge overdra fees if your ending daily balance is overdrawn by $5.00 or less*. If your account is overdrawn by more than $5.00, a fee will be charged on each overdra transaction, regardless of the amount. *Applies only to consumer accounts.

6. Transactions That Are Not Completed: If we do not complete a transfer to or from your account on time or in the correct amount according to our Agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:

A. If, through no fault of ours, you do not have enough money in your account to make the transfer;

B. if we have terminated this Agreement for any reason;

C. if the funds in your designated accounts are subject to legal process or other encumbrance restricting the transaction;

D. if circumstances beyond our control (such as ﬁre or ﬂood) prevent the transaction from being completed despite reasonable precautions that we have taken;

E. if an ATM does not have enough cash to complete the transaction;

F. if there is a technical malfunction in the ATM that is known to you when you try to perform the transaction;

G. if we have reason to believe that you or someone else is using our electronic banking services for fraudulent or illegal purposes;

H. if you exceed the transfer limits listed in Section 4, "Limitations on Transactions," of this Agreement;

I. if your ATM/Debit Card has deteriorated or has been damaged so that it does not function properly; Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 25 of 34 PageID #: 53 J. if your ATM/Debit Card or PIN has been reported lost or stolen;

K. if the transfer would exceed the available credit on your overdra line of credit.

You agree that we will not be liable for any damages resulting from a refusal for any reason to authorize a transaction that you have attempted. You further agree that we will not be responsible or liable for a merchant's refusal to accept your ATM/Debit Card.

7. Charges for ATM/Debit Card Transactions: When you use your ATM/Debit Card at a non-Capital One Bank branded ATM, the ATM owner/operator may charge you a fee for your use of their ATM, and you may be charged a fee for a balance inquiry, even if you do not complete a transaction. The fee charged should be disclosed to you on the ATM, and you should be given an opportunity to cancel the transaction before the fee is imposed. You may also be charged a fee by us, as disclosed in our then current Schedule of Fees and Charges, for each cash withdrawal, funds transfer, or balance inquiry that you may make using a non- Capital One Bank branded ATM. You will not be charged this fee at most ATMs owned and operated by Capital One Bank, except at certain gaming establishments and other non-branch locations where we may charge a fee for each cash withdrawal. The amount of fees charged at such ATMs at non-branch locations varies. Any fee charged will be displayed on the ATM screen, and you will be given an opportunity to cancel the transaction before the fee is imposed. Please refer to our then current Schedule of Fees and Charges for the amount of this fee.

For international transactions, MasterCard's currency conversion procedure includes use of either a government mandated exchange rate, or a wholesale exchange rate selected by MasterCard for the processing cycle in which the transaction is processed. The currency conversion rate used by MasterCard on the processing date may diﬀer from the rate that would have been used on the purchase date or cardholder statement posting date.

Withdrawals from an ATM outside of the United States, Puerto Rico, and U.S. Virgin Islands may incur an international transaction fee, as disclosed in our then current Schedule of Fees and Charges.

8. Receipts and Account Statement: You will be given a receipt for transactions made with your ATM/Debit Card at ATMs owned by Capital One Bank unless you decline to receive the receipt. Your periodic account statement(s) for your designated accounts will also detail electronic transfer activity on the designated account. Generally, if you have a consumer account, you will receive a monthly statement if you have an EFT in that month. In any case, you will get the statement at least quarterly.

9. In Case of Errors or Questions About Your Electronic Transfers: (For information pertaining to the error resolution process for international wire transfers, please refer to the Wire Funds Transfer Disclosure Statement and related disclosures.)

Call us at: 1-866-536-9023; Small Business: 1-877-987-4249

Write to us at: Capital One, N.A. 7933 Preston Rd. Plano, TX 75024 Attn: Customer Service Center

Log into your account at capitalone.com and click on the transaction.

Contact us as soon as you can if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt.

The following section applies only to consumer accounts: We must hear from you no later than sixty (60) days aer we sent you the FIRST statement on which the problem or error appeared.

1. Tell us your name and account number. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 26 of 34 PageID #: 54 2. Describe the error or transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.

3. Tell us the dollar amount of the suspected error.

If you tell us verbally, we may require that you send us your complaint or question in writing within ten (10) business days.

We will determine whether an error occurred within ten (10) business days aer we hear from you and will correct any error promptly. If we need more time, however, we may take up to forty-ﬁve (45) days (ninety (90) days for those transactions at merchant POS terminals, processed on a new account, or initiated outside the United States) to investigate your complaint or question. If we decide to do this, we will credit your account within ten (10) business days for the amount you think is in error so that you will have full use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your account.

For errors involving new accounts (an account where the ﬁrst deposit to the account occurs less than 30 days before the error), we may take up to twenty (20) business days to credit your account for the amount you think is in error.

We will tell you the results within three (3) business days aer completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.

The following section applies only to commercial accounts: If you are a business or other entity that is not a natural person, the above referenced procedures do not apply to any accounts held by you. If you believe that an unauthorized transaction has occurred, we must hear from you within twenty four (24) hours of the time the transaction posts to your account. We will require you to submit an aﬃdavit of unauthorized activity in connection with any such transaction immediately thereaer.

10. Pre-Authorized Payments:

A. Right to stop payment: If you have authorized regular payments out of your account, you can stop any of these payments. If the account requires multiple signatures to transact the withdrawal of funds, it is understood that we will recognize and accept stop payment instructions from any one authorized signer. Here is how: Visit your nearest Capital One Bank location, or e-mail us using the Contact Us link in the Customer service section of www.capitalone.com/bank/. You may also:

Call us at: 1-800-655-2265

Write us at: Capital One, N.A. 7933 Preston Rd. Plano, TX 75024 Attn: Customer Service Center

We must receive your request at least three (3) business days before the payment is scheduled to be made. If you call us, we may also require you to put your request in writing to the above address and to get it to us within fourteen (14) days aer you call. If you do not, then your verbal request will expire aer fourteen (14) days. We will charge you a fee as disclosed in our then current Schedule of Fees and Charges for each stop payment order you give.

Merchants may allow returns or refunds on purchases; however, except as provided above for recurring payments, you cannot stop a one-time payment on any ATM/Debit Card transactions. For this reason, you should inquire about the merchant’s return or refund policy before entering into a purchase transaction. Merchandise purchased using your ATM/Debit Card that is subsequently returned will be reﬂected as a Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 27 of 34 PageID #: 55 credit on your designated account statement, provided you elect to have the return credited to your designated account. Please refer to Section 9 for information on error resolution.

B. Varying amounts: If these regular payments vary in amount, the person you are paying must tell you ten (10) days before each payment when it will be made and how much it will be. If you do not know this information, you may be unable to have the payment stopped without closing your account. (If we are required to provide this notice, you may choose instead to get this notice only when the payment would diﬀer by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set.)

C. Liability: If you order us to stop one of these payments three (3) business days or more before the transfer is scheduled, and we do not do so, we will be liable for your actual losses or damages. We will pay other damages only as required by applicable law. We will not be liable for any consequential or special losses or damages unless we act in bad faith. In addition, we will not be liable if the merchant or other third party initiating the transaction changes the dollar amount of the transaction or makes other changes so that we do not recognize it as the payment you stopped.

11. Verifying Pre-Authorized Deposits: You can verify whether a direct deposit has been processed to your account by calling us at 1-800-655-2265.

12. Joint Accounts: If more than one person signed your request for electronic banking services, each person who signed will be bound by this Agreement and will be responsible for paying all amounts owed as a result of this Agreement. If two (2) signatures are required to transact business on a designated account, any ONE (1) signer may initiate an electronic banking transaction on the account.

13. Authorized Users: You should not allow unauthorized persons to use your ATM/Debit Card and PIN without ﬁrst advising us in writing that you are adding them as an authorized user. You must also advise us in writing should such persons no longer be authorized to use your ATM/Debit Card.

14. Liability for Unauthorized Transfers on Consumer Accounts Only:

A. Notify us immediately if you believe your ATM/Debit Card has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your designated accounts (plus any available revolving line of credit, if applicable). If you tell us within two (2) business days aer you learn of the loss or the, you can lose no more than $50.00 if someone used your ATM/Debit Card without your permission.

B. If you DO NOT tell us within two (2) business days aer you learn of the loss or the the of your ATM/Debit Card, and we can prove we could have stopped someone from using your ATM/Debit Card without your permission if you had told us, you could lose as much as $500.00.

C. If you think that a transfer or withdrawal shown on your periodic statement is incorrect, or if you believe an unauthorized transfer or withdrawal has taken place, including those made by your ATM/Debit Card, code, or other means, contact us at once. We must be notified within sixty (60) days aer the first statement we mailed to you on which the suspected problem appeared. If you do not contact us within this sixty (60) day time period, you could be held responsible for all unauthorized transfers and withdrawals that occurred between the end of the sixty (60) day period and the time you actually notified us if the transaction could have been prevented if we had been notified.

D. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we may extend the above time periods.

E. If you believe that your ATM/Debit Card has been lost or stolen or that someone has transferred or may transfer money from your account without your permission, you may:

Call us at: 1-800-655-2265 Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 28 of 34 PageID #: 56 Write us at: Capital One, N.A. 7933 Preston Rd. Plano, TX 75024 Attn: Customer Service Center

15. MasterCard Zero Liability: You may have additional rights under the MasterCard rules. Provided that the PIN is not used as the cardholder veriﬁcation method, you will not be responsible for unauthorized use of the Platinum Debit and Business Debit Cards under the following conditions:

A. Your account is in good standing;

B. You have exercised reasonable care in safeguarding your card from any unauthorized use. Unauthorized use means that you did not provide directly, by implication or otherwise, the right to use your card, and you received no beneﬁt from the "unauthorized" purchase; and

C. You have not reported two or more unauthorized events in the past 12 months.

If you have questions regarding zero liability coverage or you suspect unauthorized use of your debit card, contact us IMMEDIATELY.

16. Evidence: If we go to court for any reason, we can use a copy, microﬁlm, or microﬁche of any document or electronic documentation, e-mail, or database information to prove what you owe or that a transaction has taken place. These facsimiles will have the same validity as the original documents.

17. Our Rules and Regulations and Other Agreements: The designated deposit accounts are also subject to other agreements that you may have with us including, but not limited to, our Rules Governing Deposit Accounts and Online Banking Terms and Conditions.

18. Disclosure of Information About Your Account: In the ordinary course of business, we may disclose information to third parties about your designated accounts or the transfers you make:

Where it is necessary for completing transfers or resolving errors involving transfers; In order to verify the existence and condition of your account for a third party, such as a consumer reporting agency or a merchant; In order to comply with orders or subpoenas of government agencies or courts; If you give us your written permission; As disclosed in our Privacy Notice; or As otherwise permitted by law.

19. Our Business Days: For purposes of this Agreement, our business days are Monday through Friday. Federal holidays or other days we are closed are not considered business days.

20. Terminating This Agreement: You can terminate this Agreement at any time by notifying us in writing. We reserve the right to deactivate any ATM/Debit Card that has not been used for an extended period of time. We can also terminate this Agreement at any time. The termination of this Agreement by either party will not aﬀect your obligations under this Agreement, even if we allow any transaction to be completed aer this Agreement has been terminated.

21. Changing This Agreement: We have the right to change the terms of this Agreement from time to time. We will notify you at least twenty-one (21) days before the change will take eﬀect if the change will cause you greater costs or liability or if it will limit your access to your designated accounts. We will not have to notify you in advance, however, if the change is necessary for security reasons.

22. Notices: All notices from us will be effective when we have e-mailed them, mailed them or delivered them to the last address that we have for you in our records. Notices from you will generally be effective when received at the appropriate address specified in this Agreement, but notices under Section 14 ("Liability Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 29 of 34 PageID #: 57 for Unauthorized Transfers on Consumer Accounts Only") will be effective once you have done whatever is reasonably necessary to give us the information we need. A mailed notice will be considered delivered to us when it is received by us at the notice address in Section 14 of this Agreement. If more than one person signs your request for electronic banking services, notice to or from one of the people who signed the request will be effective for everybody who signed.

23. Collection Expenses: If we have to ﬁle a lawsuit to collect whatever you owe us, you will pay our reasonable expenses, including attorney's fees.

24. Governing Law: Any questions under this Agreement will be decided by applicable federal law, or, if no federal law exists, applicable state law. If any term of this Agreement cannot legally be enforced, the Agreement is to be considered changed to the extent necessary to comply with the law.

25. Acceptance of This Agreement: You have agreed to be bound and obligated under the terms of this Agreement and any subsequent amendments to this Agreement by using our electronic banking services.

WIRE FUNDS TRANSFER DISCLOSURE STATEMENT Eﬀective March 15, 2017

In this Wire Funds Transfer Disclosure Statement and Agreement (this “Agreement”), the words “you” and “your” mean a Capital One Bank account owner, and the words “us,” “we,” and “our” mean Capital One Bank. Capital One Bank is used as a trade name for Capital One, N.A. This Agreement defines your responsibilities and our responsibilities with respect to transfers of funds from your account(s) with us by wire transfer for credit to an account at another financial institution or another account with us (“Funds Transfers”), whether such transfers are domestic or international, made pursuant to: (a) written instructions, signed by you or your authorized representative (“Authorized Representative”), which we receive (i) in person from you or from someone present on your behalf, (ii) via facsimile transmission, (iii) via email, or (b) instructions we receive via our telephone wire request channel [(a) and (b) are collectively referred to herein as the “Funds Transfer Service”; (b) referred to herein as “Remote Channel”]. You understand that, except as specifically modified by this Agreement, your account(s) will continue to be governed by the terms and conditions contained in other agreements and/or disclosures that you have been provided with in connection with your account(s), which are incorporated herein by reference. Unless otherwise defined herein, the terms used in this Agreement shall have the same meaning as set forth in Article 4A of the Uniform Commercial Code and, to the extent applicable, the Electronic Fund Transfer Act (EFTA) and its implementing regulations.

1. How to Make a Funds Transfer: You may request or authorize a Funds Transfer (“Funds Transfer Request”) either in person, through our Telephone Wire Request Service, or in the case of business accounts, by email or facsimile. All Funds Transfer Requests delivered in person, by email, or by facsimile must be in writing, signed by you or your Authorized Representative and must contain detailed and speciﬁc instructions in a form acceptable to us in our sole discretion. Your Authorized Representative may be: (1) any joint owner on your account; (2) an authorized attorney-in-fact of an individual or joint owner on the account, acting pursuant to a power of attorney recognized by us; (3) an authorized ﬁduciary, such as a trustee, executor, administrator, custodian, guardian or conservator; (4) an authorized signatory on a business account, or (5) an individual indicated on a business resolution as someone authorized to initiate a Funds Transfer.

2. Method Used to Make the Funds Transfer: We may select any means for the transmission of funds that we consider suitable, including but not limited to Fedwire. We may make use of correspondents, agents, subagents and funds transfer and communication systems. Such third parties shall be deemed your agents and we shall not be liable for any errors, delay, misdelivery, or failure of delivery by any of them unless applicable law says otherwise. Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 30 of 34 PageID #: 58 3. Cut-Off Times: We have cut-off hours for processing Funds Transfers. Cut-off times vary depending on the location. Check with your local branch or contact the call center for cut-off hours. We may treat any Funds Transfer Request received at or aer our cut-off time as if it were received that business day or we may treat it as if it were received at the opening of the next business day.

4. Security Procedures: You agree and consent to the use of certain security procedures by us to conﬁrm the validity of the Funds Transfer Request made pursuant to this Agreement. You understand the security procedures are not designed to detect errors in the content of the Funds Transfer Request or to prevent duplicate transfers.

Some elements of the procedures will vary depending upon the method used to initiate a Funds Transfer. You hereby agree that your utilization of any security procedure established hereunder shall constitute your agreement to its use and aﬃrmative acknowledgment of its commercial reasonableness. You further agree that any Funds Transfer Request that is acted upon in good faith by us in compliance with these security procedures, whether or not in fact authorized by you, shall constitute an authorized Funds Transfer.

The following security procedures shall apply to this Agreement: Before accepting any such Funds Transfer Requests, we will: (1) perform verification on the individuals initiating the Funds Transfer Request that is designed to ensure they are the individuals previously authorized to initiate a Funds Transfer for the account in question; (2) apply fraud-related screens to the wire instructions; (3) contact you using information from your account records to verify the Funds Transfer for wires that are not initiated in person (this contact may be through a method different than the one you used to request the Funds Transfer (e.g., phone versus e-mail) or it may be through the same channel to obtain a password or other information that only you should have); and (4) request and receive any other proof of identification or any other documentation from you or your Authorized Representative which we may, in our sole discretion, require under the circumstances.

5. International Funds Transfer: For commercial transactions involving an international Funds Transfer (also known as a “remittance transfer”), you are responsible for providing us with the name and address of an intermediary bank at the time of the Funds Transfer. If you do not supply us with an intermediary bank, we will select one of our choosing. We will not be held liable if we have not conﬁrmed the intermediary bank with you. For a consumer international Funds Transfer, we will select the intermediary bank through which the Funds Transfer is transmitted.

Selection of currency: Unless you state otherwise on the Funds Transfer Request form, Funds Transfers sent to foreign countries may be converted to the currency of the destination country at our rate of currency exchange for remittance transfers. Even if you tell us that you want the Funds Transfer sent in U.S. dollars, we cannot guarantee that the beneficiary/designated recipient will receive the funds in U.S. currency. The actual amount that the beneficiary/designated recipient receives may be reduced by fees and taxes imposed by the beneficiary bank, or a correspondent bank, including currency conversion charges.

Refund: Refunds of U.S. dollar consumer international Funds Transfer Requests shall be in U.S. dollars in the total amount of funds provided by you at the time of the Funds Transfer; refunds of commercial U.S. dollar international Funds Transfer Requests shall be in U.S. dollars in the amount of U.S. dollar payment that we receive from the bank returning the funds to us at such bank's rate of currency exchange, less any fees therefore. Refunds of foreign currency consumer international Funds Transfer Requests shall be in the total amount of foreign currency funds provided by you at the time of the Funds Transfer; refunds of commercial foreign currency international Funds Transfer Requests shall be in the amount of U.S. dollars that can be bought by us for the applicable non-U.S. dollar currency amount at our then current rate of currency exchange. You shall bear all risk of loss due to ﬂuctuation in the currency exchange rate.

Conversion rate: For international Funds Transfers involving non-U.S. currencies, the exchange rates we use for your transactions are not necessarily the bank-to-bank negotiated exchange rate or other potentially more favorable rate. FDIC deposit insurance does not insure against any loss due to foreign Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 31 of 34 PageID #: 59 currency ﬂuctuations. Consult your attorney or investment advisor regarding the potential risks associated with foreign exchange transactions.

6. Force Majeure: We will not be liable for our inability to perform our obligations under this Agreement when such inability arises out of causes beyond our control, including but not limited to, any act of God, accident, labor disputes, power failures, system failure, equipment malfunction, suspension of payment by another bank, refusal or delay by another bank to accept the funds transfer, war, emergency conditions, ﬁre, earthquake or the failure of any third party to provide any electronic or telecommunication service used in connection with the execution or cancellation of a Funds Transfer.

7. Inconsistency of Name and Account Number: You acknowledge and agree that when you (or your Authorized Representative), provide us with a name and account number in order for us to process a Funds Transfer, payment may be made by the beneficiary's/designated recipient's bank solely on the basis of the account number, even if the account number identifies a person different from the beneficiary so named. We or an intermediary bank may send a Funds Transfer to an intermediary bank or beneficiary's/designated recipient's bank based solely on the bank identifying number, even if the payment order indicates a different name. We may rely on all information contained in the Funds Transfer Request, regardless of who may have provided the information. You further agree that your obligation to pay the amount of a Funds Transfer to us is not excused in such circumstances. Except as provided by applicable law, any losses resulting from an incorrect account number or your misidentification of the beneficiary/designated recipient is your responsibility and not ours.

8. Acceptance and Execution of Request by Capital One Bank: A Funds Transfer Request is considered accepted by us when we execute it. There is a deadline for each type of Funds Transfer Request. Please contact your Capital One Bank branch or Capital One Call Center for this information. If a Funds Transfer Request is received prior to the deadline, it will be executed by us that business day, provided we are able to validate your request that same business day as described in Section 4. A Funds Transfer Request received aer the cut-oﬀ time may be executed on the next business day, again provided we are able to validate your request that next business day as described in Section 4. You can verify whether your Funds Transfer Request has been executed by calling us at 1-800-655-BANK (2265).

9. Payment to Capital One Bank: You must pay us the amount of the Funds Transfer, plus any applicable fees, before we will execute the Funds Transfer Request. Please contact your Capital One Bank branch or Capital One Call Center for fees applicable to Funds Transfers and any other related pre-payment disclosures.

10. Rejection of Funds Transfer: We have no responsibility to accept any incoming Funds Transfer(s) for your benefit. Likewise, we have a right to reject any Funds Transfer Request(s) for an outgoing Funds Transfer for reasons including, but not limited to, insufficient or uncollected funds in the account specified in the Funds Transfer Request, a request that fails the security procedures outlined in Section 4, our inability to execute the Funds Transfer for the reasons set out in the Section of this Agreement entitled Method Used to Make the Funds Transfer above, or if we are unable to verify the authenticity of the Funds Transfer Request.

11. Notice of Funds Transfer Not Executed: If we determine, in our sole discretion, not to honor, execute or accept a Funds Transfer Request, we will endeavor to notify you, but we shall have no liability for delay or failure to do so. We will also endeavor to notify you promptly if a Funds Transfer is returned to us aer its execution but shall have no liability by reason of our delay or failure to do so. We shall have no obligation to resend a Funds Transfer if we complied with the original Funds Transfer Request and such Funds Transfer was returned to us.

12. Cancellation or Amendment of Funds Transfer:

A. Domestic Funds Transfers: Once we receive a domestic Funds Transfer Request, it may not be able to be canceled or amended. However, at our discretion, we may use reasonable efforts to act on any request for cancellation or amendment, provided that the method by which we are notified of a request for Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 32 of 34 PageID #: 60 cancellation or amendment complies with our security procedures. However, we shall have no liability if such cancellation or amendment is not effected. You agree to indemnify and hold us harmless from any and all liabilities, claims, damages, costs and expenses we may incur in attempting to cancel or amend the Funds Transfer. Any cancellation or amendment of a Funds Transfer by us shall relieve us of any obligation to act on the original Funds Transfer Request.

B. Consumer International Funds Transfers: Cancellation requests for consumer international Funds Transfers, must be received no later than 30 minutes aer payment is made for the Funds Transfer. Cancellation requests received outside of this time frame may not be able to be processed.

13. Account Statements: Except as provided by applicable law, you agree that we are not required to provide you with a separate notice of incoming or outgoing Funds Transfer. All Funds Transfers will be reﬂected on your periodic bank statement. You should review your statement for any discrepancies, unauthorized transactions or errors in connection with any Funds Transfers. Except as otherwise provided herein, if you think a Funds Transfer is wrong or if you need more information about a Funds Transfer, you must contact us in writing upon discovery of the error or within fourteen (14) days from the date your statement is postmarked or otherwise made available to you, whichever is earlier. Failure to do so will relieve us of any obligation to pay interest on the amount of an unauthorized or erroneous Funds Transfer for which we are liable. Furthermore, you will also be liable to us for any damages or losses we may incur as a result of your failure to notify us within the time period stated in this Section.

14. Change in Authorized Representative: Any changes in the authority of persons authorized to make a Funds Transfer on your behalf shall not be binding upon us until we have received written notice from you. The notice must be in a form acceptable to us and be given within a reasonable period of time for us to act upon the change.

15. Duty of Reasonable Care: We shall exercise good faith and reasonable care in processing Funds Transfer Requests. You shall similarly exercise good faith and reasonable care in observing and maintaining security procedures, in communicating Funds Transfer Requests to us, and in reviewing periodic bank statements for any discrepancies.

16. Liability of Capital One Bank: We shall be responsible only for performing the Funds Transfer Service expressly provided for in this Agreement; provided however, we shall be liable only for our own gross negligence or willful misconduct in performing such service. We shall not be liable to any third party or for any act or omission of yours or any third party, including, but not limited to, third parties used by us in executing a Funds Transfer or performing a related act and no such third party shall be deemed to be our agent. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSSES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THE FUNDS TRANSFER SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SAME. Except as otherwise provided by applicable law, the maximum period for which we shall be liable for interest on any amount to be refunded or paid to you with respect to an unauthorized, erroneous or other Funds Transfer Request is thirty days.

Interest Compensation: In the event we are liable to you for interest compensation under this Agreement, or applicable law, interest shall be calculated at the average of the federal funds rate published by the Federal Reserve Bank for the period involved; or at such other rate that we may agree to, in writing, from time to time.

Consumer International Wire Fund Transfer Error Resolution: In case of errors contact us at 866-536- 9023, or write us at:

Capital One Bank Claims Processing Center PO Box 85039 Richmond, VA 23285-5039 Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 33 of 34 PageID #: 61 You must contact us within 180 days of the funds availability date on your Funds Transfer receipt, or within 60 days of the date we provided you with any requested documentation, additional information or clariﬁcation concerning a Funds Transfer.

When you do, please tell us:

(1) Your name and address [or telephone number]; (2) The error or problem with the transfer, why you believe it is an error or problem and, if possible, the date of the error; (3) The name of the designated recipient of the funds and, if possible, the designated recipient’s telephone number and address; (4) The dollar amount of the transfer; and (5) The conﬁrmation code or number of the transaction.

We will determine whether an error occurred within 90 days aer you contact us and report the results to you within three (3) business days of completing our investigation. If we determine an error occurred, we will notify you of the available remedies and will correct the error promptly and in accordance with the remedy you select.

If we determine no error occurred, we will send you a written explanation. You may ask for copies of the documents on which we relied for our determination.

17. Liability of the Customer: Except as otherwise provided by law, you shall be liable for any loss or damage to which your negligence contributed or which resulted in unauthorized, fraudulent or dishonest acts by your current and/or former Authorized Representatives. Such liability includes instances when a current or former Authorized Representative eﬀects one or more Funds Transfers or improper use of telephone security procedures to eﬀect a Funds Transfer to your detriment.

18. Compliance with Anti-Money Laundering and Exchange Control Regulations and OFAC Enforced Sanctions:

A. You covenant with us to observe all Anti-Money Laundering and Exchange Control laws and regulations including economic and trade sanctions promulgated by the Oﬃce of Foreign Assets Control of the U.S. Department of Treasury in relation to any Funds Transfer and you will use all reasonable endeavors to assist us to do likewise. In particular, you covenant that the information given to us by you is accurate. We may disclose any information given to us that we in our sole discretion think necessary or desirable to disclose; except we will only disclose conﬁdential information if required by law, a court, or legal, regulatory, or governmental authority, or as permitted by law in order to combat, prevent, or investigate issues arising under anti-money laundering laws, economic sanctions, or criminal law.

B. Sometimes legal, regulatory, or governmental authorities require additional information, either in respect of individuals, entities, or particular transactions. You agree to promptly supply all such information, which any such authority may require, and/or which we may be required to supply, in relation to the individual, entity, or particular transaction.

C. If you, or your Authorized Representative, breach any such laws or regulations, you irrevocably agree that we may retain any monies or funds transmitted to us pursuant to this Agreement and/or not fulﬁll any Funds Transfer Request if we are required to take or refrain from such action by any legal, regulatory or governmental authority or if we reasonably believe that such action may violate any laws or regulations described herein, and such monies shall not bear interest against us. You further agree that we may pay such monies to the appropriate legal, regulatory or governmental authority, if and when required by law.

19. Indemniﬁcation: In consideration of Capital One Bank agreeing to accept Funds Transfer Requests in the manner set forth herein, you shall forever indemnify and hold Capital One Bank, its oﬃcers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, Case 1:19-cv-00473 Document 1-2 Filed 01/24/19 Page 34 of 34 PageID #: 62 subsidiaries and/or insurers, harmless from and against all liability, claims, damages, costs, claims or expenses (including reasonable attorneys' fees) that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to the matters set forth herein, or to the Funds Transfer Service, which shall be provided pursuant to the terms of this Agreement. Your agreement to indemnify us and hold us harmless shall survive the expiration and/or termination of this Agreement and all provisions contained herein.

20. Recording of Communication: You agree that all telephone conversations made in connection with the Agreement may be recorded and retained by us.

21. Termination of Agreement: We may terminate the right to make Funds Transfers at any time or amend or change the terms of this Agreement or cancel this Agreement without advance notice to you.

22. Agreement Controls: Both you and Capital One Bank will be bound by this Agreement. If there is a conﬂict between this Agreement and something said by one of our employees, you agree that this Agreement controls. This Agreement and the terms of the Account Agreement(s) related to your deposit accounts, which are incorporated herein by reference, constitute the entire Agreement between you and us regarding your use of the Funds Transfer Service. If any inconsistency exists between the account disclosure statements and agreement(s) and this Agreement, then the terms of this Agreement shall control. No representation or statement not expressly contained in this Agreement or in any amendment hereto shall be binding upon you or us.

23. Governing Law: All actions arising out of or concerning the Funds Transfer Service or these terms and conditions shall be heard by a judge sitting without a jury. In any such action, Capital One Bank shall be entitled to its reasonable attorneys' fees. The Funds Transfer Service and these terms and conditions shall be governed by the internal laws of the State of Virginia without regard to its conﬂicts of rules and the laws of the United States.

24. Severability: In the event that any court or tribunal of competent jurisdiction determines that any provision of the Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be eﬀected thereby.

Case 1:19-cv-00473 Document 1-3 Filed 01/24/19 Page 1 of 3 PageID #: 63

EXHIBIT B Case 1:19-cv-00473 Document 1-3 Filed 01/24/19 Page 2 of 3 PageID #: 64

Case 1:19-cv-00473 Document 1-3 Filed 01/24/19 Page 3 of 3 PageID #: 65

Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 1 of 37 PageID #: 66

EXHIBIT C Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 2 of 37 PageID #: 67

Terms and Conditions Rev. 12/4/2018

Contents

1. Introduction 2. Definitions 3. Description of Services 4. Security, Confidentiality of Access Information 5. Enrollment in Services; Accounts Which Can Be Accessed A. When Using the Services to Access Your Bank Account B. When Using the Services to Access Your Credit Card Account 6. Authority You Grant Capital One and Its Servicers 7. Electronic Communications 8. Funds Transfers for Bank Accounts 9. Payments A. When Using the Services to Access Your Bank Account B. When Using the Services to Access Your Credit Card Account 10. Online Bill Payment for Bank Accounts 11. Electronic Communications Disclosure 12. Fees and Charges 13. Changes in Services; Interruptions in Service 14. Our Responsibility for Payments and Funds Transfers A. When Using the Services to Access Your Bank Account B. When Using the Services to Access Your Credit Card Account 15. Disclosure of Account Information to Third Parties 16. Statement of Record 17. Your Responsibilities and Liabilities A. When Using the Services to Access Your Bank Account B. When Using the Services to Access Your Credit Card Account 18. In Case of Errors or Questions about Payments, Transfers or Other Transactions Made Through the Services A. When Using the Services to Access Your Bank Account B. When Using the Services to Access Your Credit Card Account 19. Amendment 20. Termination 21. Assignment 22. Data Recording 23. No Waiver 24. Liability for Loss or Erroneous Data 25. Harm to Computer Systems/Data 26. Limitations of Liability and Disclaimers 27. Severability 28. Area of Service 29. Collection Expenses 30. Governing Law 31. Downloading and Exportation Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 3 of 37 PageID #: 68 Introduction This Agreement governs your use of the Capital One Online Banking, Online Bill Payment, and Funds Transfer Services (collectively and as further defined below, the "Services"). Unless otherwise noted, each section below applies regardless of whether you are using the Services to access your Bank or Credit Card account.

Use of the Services is expressly conditioned on your acceptance of this Agreement, and when you use, or permit Authorized Persons to use the Services, you agree to be bound by the terms of this Agreement. By using the Services, you acknowledge that you have read, understand, and agree to abide by the terms and conditions of this Agreement. If you decide not to agree to the terms and conditions discussed herein, you may not use the Services.

Please note that Online Banking is currently only provided for the primary accountholders of U.S. consumer credit cards, line of credit, and bank accounts.

This Agreement governs your use of any information, content, products, services, transactions, and other features available on or through the Online Banking Web site (the "Online Banking Site"). This Agreement is hereby made a part of the Terms and Conditions for capitalone.com and the Terms and Conditions for banking.capitalone.com, and all such Terms and Conditions apply to your use of the Services on the Online Banking Site.

Any agreements, rules, or other terms governing any accounts that you may view, modify, or otherwise access while using Online Banking (such as your account agreement) will apply to your use of Online Banking. Additionally, in connection with your use of the Services, you may be subject to, and/or required to agree to, various guidelines, rules, schedules, disclosures, disclaimers and other terms that we may post on the Online Banking Site or any other Capital One Site (as deﬁned below), or otherwise provide or make available to you.

Furthermore, if you use certain features, products or services available on or through the Services, you will be subject to, and/or required to agree to separate user agreements, customer agreements or similar agreements governing or relating to such features, products, or services. All such guidelines, rules, disclosures, disclaimers, user agreements or similar agreements, and other terms and conditions (collectively, "Additional Agreements") are hereby incorporated by reference into this Agreement. Additional Agreements shall include, without limitation, agreements, rules or other terms governing any checking, savings or other deposit accounts, loan, line of credit and credit card accounts, investment accounts and any other accounts that you may view, modify, or otherwise access while using the Services; fee schedules; our electronic funds transfer agreement and disclosures; our Online Bill Payment Authorization and Agreement; and your signature card.

If the terms and conditions of this Agreement conﬂict with the terms and conditions contained in any Additional Agreement solely as they apply to online banking and online bill payment services, this Agreement controls; provided, that the terms and conditions of this Agreement are not intended to modify any disclosures or other terms that are required by law and that are provided by Capital One in an Additional Agreement. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 4 of 37 PageID #: 69 This Agreement shall apply regardless of the means by which the Services are accessed, including, but not limited to, through the URL address https://www.capitalone.com, https://banking.capitalone.com, electronic mail, or links from another website via a computer, mobile device, or any other means of access.

When using other services or features available through the Online Banking Site but provided directly by third parties such as rewards, your use will be governed by the agreements, program rules, or other terms or conditions governing use of those services or features.

Accepting this Agreement By using or authorizing others to use Online Banking, you agree to the terms and conditions of this Agreement. Unless otherwise indicated, your use aer any changes to Online Banking indicates you accept the Agreement in eﬀect at the time. If you do not accept the Agreement, you may not use Online Banking.

2. Deﬁnitions Unless otherwise stated, the following deﬁnitions apply throughout this Agreement:

"Capital One", "we", "us" or "our" mean, collectively, Capital One Financial Corporation, its subsidiaries and affiliates (including, without limitation, Capital One, N.A., Capital One Bank (USA), N.A, and Capital One Auto Finance) and all of their respective successors, assigns, agents, and/or authorized representatives. However, with respect to a specific account to which the Online Banking Site provides you access, "Capital One", "we", "us" or "our" shall be understood to refer to the particular entity in the Capital One family of companies that offers such account. Please consult your account agreement(s) for information about the Capital One company servicing your individual account(s).

"You" or "your" mean each Authorized Person (as deﬁned below) with respect who has an interest in an account with Capital One which is accessible through the Services or through the Online Banking Site, each person who signed the application or other binding documentation for the account with Capital One (each, a "joint accountholder"), or any person that is authorized to use the account in any way (each, an "Authorized User").

"Account" and "accounts" mean the checking, savings or other deposit account(s), loan account(s) and other account(s) that are tied to your Social Security number, Tax Identification Number or other unique identifier provided to you by Capital One (your "Customer Number") and that are used through the Services, and any other account that you may add to your online banking profile (as further set forth below).

"Authorized Person" means, with respect to an individual account, each person who has an interest in or authority to transact business in such account and, with respect to an entity account, each person listed as an authorized signor on the signature card for such account or otherwise authorized to transact any business with respect to such account.

"Bank Accounts" mean any account that you are an account holder (including joint) on that is a Capital One checking, savings, money market, certiﬁcate of deposit, personal loan or line of credit. These accounts will be automatically linked to your Online Banking proﬁle. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 5 of 37 PageID #: 70 "Biller" is the person or entity to which you wish a bill payment to be directed or is the person or entity from which you receive electronic bills, as the case may be.

“Billing Account” is the checking account from which all Service fees will be automatically debited.

"Business" means the corporation, company, partnership, association, or other business which employs a User (or with which an Authorized User is otherwise associated) and which has arranged for the issue of the Payment Card to an Authorized User.

"Business Day" is every Monday through Friday, excluding Federal Reserve holidays.

"Capital One Site" means any website owned or operated by a member of the Capital One family of companies that contains information about available products and services and/or terms and conditions relating to any accounts, account information and/or transactions that you may view, perform, modify or otherwise access or use while using the Services. Capital One Sites include, without limitation, the Online Banking Site, https://mobilebanking.capitalone.com, capitalone.com, and banking.capitalone.com.

"Computer" means your computer, computer system, mobile device, or any other method used to access a Capital One Site and all related equipment and soware.

"Due Date" is the date on which payment to a Biller is due as reﬂected on the billing statement that you receive from that Biller. It is not the late payment date or the date beginning a grace period or any date during any grace period.

“Exception Payments” means payments to deposit accounts or brokerage accounts, payments to settle securities transactions (including, without limitation, stocks, bonds, securities, futures (forex), options, or an investment interest in any entity or property).

"External Transfers" mean monetary transfers between your accounts held at Capital One and an external ﬁnancial institution.

"Funds Transfers" mean all Internal Transfers and External Transfers.

"Internal Transfers" mean monetary transfers between your accounts held at Capital One.

"Non-Bank Accounts" means any account that you are the primary account holder for that is a Capital One credit card, auto loan, investment account or mortgage. These accounts will be automatically linked to your Online Banking proﬁle. Capital One Investing accounts are not viewable within Online Banking at this time.

"Online Banking" refers to the online platform that allows you to perform the Services.

"Online Bill Pay" refers to the services we provide through our online bill payment service, as described in this Agreement.

"Online Bill Payment Account" is the Capital One deposit account from which payments are made through Online Bill Pay. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 6 of 37 PageID #: 71 "Payment Account"or “Eligible Transaction Account” means any transaction account that is eligible for the service and that is designated by you for the following purposes: for making payments through the bill payment features of the Services, for automatic debiting of any service fees, and to which any payments and credits to you will be credited. For further information, please contact your Account Oﬃcer or Online Banking Customer Service at 1-877-383-4802.

"Personal Account" means any asset account established by a natural person primarily for personal, family, or household purposes.

"Scheduled Payment Date" is the day you want your Biller to receive your bill payment. If the Scheduled Payment Date falls on a non-Business Day, the Scheduled Payment Date will be considered to be the previous Business Day.

"Scheduled Payment" is a payment that has been scheduled through the Services but has not been processed.

"Service Provider" means companies (and their Aﬃliates) that we have engaged to render some or all of the Services to you on our behalf.

3. Description of Services The "Services" means all information, materials, content, communications, features, products, services, methods of conducting transactions and transactions available, oﬀered, made, obtained or otherwise provided or used (as applicable) on or through the Online Banking Site, including, but not limited to, the ability to (a) transfer funds between certain accounts; (b) make bill payments through our Online Bill Pay service and schedule other payments to certain of your accounts; (c) obtain account balance and certain other account information for various Capital One accounts that you may have (including, without limitation, checking, savings or other deposit accounts, loan accounts, credit card accounts and investment accounts); (d) obtain transaction information on certain of your accounts; (e) download certain account transactions to your Computer; (f) update your address; (g) view online statements and tax forms; (h) view online check images; (i) order statement copies; (j) order check copies; and/or (k) re-order checks for checking account(s) established at a banking oﬃce of Capital One. These features are limited to the extent, and subject to the terms, noted herein and in any Additional Agreements that apply to you. The Services shall also be deemed to include any portion of the Online Banking Site and any soware used to operate the Services. Subject to all terms hereof, you may use the Services seven days a week, twenty-four hours a day, except for any scheduled or unscheduled interruptions in the Services for maintenance, security or any other reasons, as further described below.

Certain features, information, types of transactions or other services available while using the Services are only available for certain Capital One accounts and may not be available when accessing the Services via mobile device or for all of your Capital One accounts. For certain of your accounts, you may be able to hyperlink from the Online Banking Site to another Capital One Site relating to such Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 7 of 37 PageID #: 72 accounts, where you may be able to access features, information, transactions or other services pertaining to those accounts that you cannot access directly on the Online Banking Site (and that thus are not deemed a part of the Services).

4. Security, Conﬁdentiality of Access Information Use of the Services requires a computer or approved mobile device and Internet access connected through an Internet or mobile service provider and with a Web browser (for example, Firefox, Chrome, or Microso Internet Explorer).

To protect the confidentiality and security of your financial information, you must connect to the Online Banking Site using an Internet browser that supports TLS 1.2 or higher. Use of the Services with lower than TLS 1.2 is strictly prohibited. To the extent you are able to access the Services using lower than TLS 1.2, we specifically disclaim any and all responsibility for losses resulting from your use of such lower encryption. We may change these requirements from time to time.

You agree to keep your Customer Number, user name, password, and any other security or access information (collectively, "Access Information") conﬁdential to prevent unauthorized access to your account(s) and to prevent unauthorized use of the Services. We recommend that you memorize your Access Information and do not write it down. You agree not to give or make available your Access Information to any unauthorized individual.

If you believe the security of your password or any other Access Information has been compromised in any way (for example, your password has been lost or stolen, someone has attempted to use the Services under your Customer Number without your consent, your accounts have been accessed, or someone has transferred money from your account(s) without your permission), you must notify us immediately. (See YOUR RESPONSIBILITIES AND LIABILITIES below.)

We reserve the right to deny your access to any one or more account(s) or to the Services or any part thereof, or to deny the processing of transactions, to maintain or restore security or performance to the Online Banking Site or any other Capital One Sites and systems. We may do so if we reasonably believe your Access Information has been or may be obtained or is being used or may be used by an unauthorized person(s). We may try to notify you in advance, but cannot guarantee we will do so.

5. Enrollment in Services; Accounts Which Can Be Accessed A. When Using the Services to Access Your Bank Account To enroll in Online Banking, you will need your Social Security or Tax Identiﬁcation Number or account number, unless otherwise expressly agreed by Capital One (provided Capital One shall have no obligation to so agree). If you do not have such a number and are interested in enrolling in the Services, you must contact Online Banking Customer Service at 1-877-383-4802.

You must also have opened at least one of the following accounts under your Customer Number: a checking, savings, money market, CD, IRA or other deposit account, or an installment loan, line of credit or other loan account, oﬀered by Capital One, N.A.; a checking, savings, money market, CD, or other deposit account oﬀered by Capital One Bank (USA), N.A (such accounts may be referred to as Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 8 of 37 PageID #: 73 "eligible accounts"). The use of Online Bill Pay requires at least one eligible checking account with Capital One, N.A. or Capital One Bank (USA), N.A.

If you have more than one eligible Capital One account, we will automatically "link" your eligible accounts together for purposes of the Services, and all such accounts will appear in your online banking proﬁle on the Online Banking Site. Any accounts for which you are an Authorized Person (including, without limitation, joint accounts for which you are one of multiple Authorized Persons) will appear in your online banking proﬁle.

Summary Information for Linked Non-Bank Accounts Your online banking proﬁle will automatically link and display only summary information about your credit card, auto loan, mortgage and investment accounts. To get any other information or conduct any activity on these account types, you must access the speciﬁc account servicing area for that account.

Linked Bank Accounts All "linked" Bank Accounts (whether linked automatically or separately by you) will appear in your online banking proﬁle on the Online Banking Site, and you will be able to view at least certain summary information for all such accounts. As set forth above, certain features, information, types of transactions or other services available while using the Services may not be available for all of your linked accounts. If you have a linked joint account or other account that requires two or more signatures to make withdrawals, transfers or transactions, you will not be able to perform certain transactions on such account using the Services. Any non-linked account will not be accessible through the Services.

If you share your log in credentials with a third party, even a third party with whom you share an account, they will have access to view all of your linked accounts, even individual accounts that are not shared with you. As long as you maintain your unique log in credentials, you will have access to view all of your individual accounts and shared accounts and people with whom you share accounts will only be able to view accounts that are shared with you, not your individual accounts.

B. When Using the Services to Access Your Credit Card Account Conditions for Enrollment To enroll in and use Online Banking, you will need your Social Security or Tax Identiﬁcation Number. If you do not have such a number and are interested in enrolling in Online Banking, you must notify us as speciﬁed on our Contact Us

You also must be the primary accountholder on at least one open account that is not restricted for fraud or national security reasons (such accounts may be referred to as "eligible accounts"). If you have requested that your account be closed but you still have a balance, or your account is in collections, under suspicion of fraud, or has any other reason for restricted status, you may still have access to Online Banking, but you may not be able to perform certain functions on your account such as request a balance transfer.

By enrolling to use Online Banking, you certify that you (a) are 18 or older; (b) are a United States resident; (c) are legally capable of entering into contracts; and (d) have and will only register Payment Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 9 of 37 PageID #: 74 Account(s) in your name or the name of a business on which you are an account holder or Authorized User. You agree that some or all of the registration information you provide may be subject to veriﬁcation by Capital One at any time.

If enrolling to use Online Banking for a Business, you also represent and warrant that (a) you have authority to enter into this Agreement on behalf of the Business and yourself; (b) you have authority to provide all required or requested authorizations to us on behalf of both yourself and the Business; and (c) you will use the Payment Account(s) consistent with your obligations to and agreements with Business.

Linking Your Capital One Credit Card Account(s) and Certain Other Accounts Once enrolled, you will need to choose the accounts you would like to have Online Banking access to from the list of eligible accounts we provide. Closed or charged-oﬀ accounts may not be eligible. Accounts currently under suspicion of fraud are also not eligible until the fraud alert is removed or otherwise resolved.

Capital One credit cards currently accessed under diﬀerent user names may not be linked. You can consolidate any accounts currently serviced under a diﬀerent user name to a single user name. If you choose to do so, pending payments and the payment account you have set up will be moved to the new user name; however, secured message inboxes from the old user name(s) will not move.

Non-linked account(s) will not be accessible through Online Banking. Accounts which are in restricted status for reasons such as fraud, national security, or collections may not be able to be accessed through Online Banking for some or all activities such as viewing account information, or conducting payments or other transactions.

To get any information or conduct any activity on any other accounts you may have with Capital One such as deposits, or loans with Capital One, N.A., you must access the online servicing site(s) for those products and services, accessible through capitalone.com.

6. Authority You Grant Capital One and Its Service Providers We are oﬀering you Online Banking through one or more Service Providers that we have engaged to render some or all of the Services to you on our behalf. However, notwithstanding that we have engaged such a Service Provider to render some or all of the Service to you, we are the sole party liable to you for any payments or transfers conducted using the Service and we are solely responsible to you and any third party for the regulatory responsibility that extends with the Service. You agree that we have the right under this Agreement to delegate to Service Providers all of the rights and performance obligations that we have under this Agreement, and that the Service Providers will be third party beneﬁciaries of this Agreement and will be entitled to all the rights and protections that this Agreement provides to us.

By enrolling in Online Banking, you authorize Capital One and its Service Providers to process transactions and instructions and to post transactions to your account(s) as directed. You further authorize Capital One to make automatic recurring payments in such manner as you direct. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 10 of 37 PageID #: 75 Capital One's receipt of your bill payment instructions authorizes us, or our Service Providers, to debit or charge (or if the Payment Account is with another ﬁnancial institution, request that such institution debit) your Payment Account, and to remit (or request that such ﬁnancial institution remit) funds on your behalf.

7. Electronic Communications You agree that all electronic communications that we receive on the Online Banking Site or otherwise in connection with the Services, such as those directing us to take an action with respect to your account, that match Access Information or other identity information you have provided when enrolling in or using the Services will be deemed valid, authentic, and binding obligations. These communications will be given the same legal eﬀect as your written and signed paper communications and shall be considered a "writing" or "in writing." They also shall be deemed for to have been "signed" and to constitute an "original" when printed from electronic ﬁles or records established and maintained in the normal course of business.

You agree that electronic copies of communications are valid and you will not contest the validity or enforceability of such communications or any related transactions, absent proof of altered data or tampering, under the provisions of any applicable law relating to whether certain agreements are required to be in writing or signed by the party to be bound thereby, and such copies shall be admissible as evidence in any judicial, arbitration, mediation, or administrative proceeding to the same extent and under the same conditions as other business records originated and maintained in paper form.

You agree (to the maximum extent permitted by law) to hold harmless Capital One and protect and indemnify Capital One from and against any and all claims, losses, liability, damages and/or demands (including, without limitation, reasonable attorneys' fees and court costs) of any kind, direct or indirect, arising out of or in any way connected with any Services rendered by Capital One pursuant to or in accordance with any and all electronic communications for which we have attempted to verify your identity as set forth above.

Email You agree to receive all transactional email communications from Capital One that are primarily related to your use of the Services or to your account(s), including automatic security alerts (discussed below). You consent to any inadvertent disclosures that may occur as a result of Capital One sending account communications to the email address you provide.

Because email is not a secure method of communication over the Internet, we recommend you do NOT use email to send confidential or personal information or initiate transactions on your account(s). We also recommend that you do not send confidential or personal information to us in text messages. We will not respond to or act upon text messages received from you, unless in connection with a specific program or instructions provided to you. We recommend that for account transactions or confidential questions you use the appropriate functions available through Online Banking or notify us as specified on our Contact Us page.

Security Alerts and Optional Communications (including Text Messages) Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 11 of 37 PageID #: 76 Online Banking oﬀers both security alerts and optional alerts and communications about your account and account transactions. Security alerts are provided to you for fraud protection and when certain important changes to your account occur, such as the addition of a new biller, password and user name updates, or changes in your physical or primary email address. These alerts are sent automatically by email to your primary email address and by text message to your mobile device number, if you have provided one. You may provide additional contact points for security alerts using the "Messages & Alerts" menu on the Online Banking Site.

You expressly agree to receive security alerts from us by prerecorded voice message and/or text message, including with the use of an automatic dialer (autodialer), at any mobile device number you provide to us. You may discontinue security alerts sent by text message as indicated below, but you will continue to receive security alerts by email.

In addition to security alerts, you have the option of receiving additional alerts or communications regarding other Online Banking and account activity, delivered by email, text message or voice (together, "Optional Communications"). You may be asked to select from contact options when you sign up for the Optional Communications. By signing up to receive any Optional Communications, you consent to delivery of such messages in the format selected (such as text message or prerecorded voice) to the contact points you identify. If you provide us with a mobile device number for Optional Communications, you expressly agree to receive prerecorded messages and/or text messages at that number from us, including with the use of an autodialer.

Both security alerts and Optional Communications are subject to the following:

You are responsible for notifying us of any changes to your email, mobile device, and telephone contacts to which communications are sent. Please sign in to Online Banking to modify or cancel your Optional Communications. For help with text messages, you may text "HELP" to U.S. and Canada short code 227898. If you text "STOP" to short code 227898 from your mobile device, the command will revoke your consent to receive security alerts, Optional Communications, and other Online Banking- related text messages at that mobile device from such short code (although we may send a conﬁrmation of your opt-out), but will not revoke any other consent you may have provided us.

Your full account number will not be included in these types of communication from us. However, communications may contain our name and information about your accounts. Depending upon the communication, information pertaining to account balances, checks written, insuﬃcient funds, transactions or payment due dates may be included. Anyone with access to your email, mobile device(s), or telephone or telephone answering machine(s) or service(s) may be able to access the contents of the communication. It is your responsibility to secure these devices, protect your user name(s) and password(s), and provide timely information about contact changes in order to protect the conﬁdentiality of this information. You consent to any disclosures by Capital One that may occur if you do not take appropriate steps to prevent access to your information by unauthorized persons.

We endeavor to provide communications in a timely manner with accurate information. However, we do not guarantee the delivery or accuracy of the contents of any communication. Communications may not reﬂect pending transactions or payments, and deposits may not be available for immediate withdrawal. Additionally, communications may not be delivered immediately. If you require additional Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 12 of 37 PageID #: 77 details about a transaction, you may sign in to Online Banking or contact us as speciﬁed on our Contact Us page.

You agree that neither we nor our Service Providers will be liable for any delays, failure to deliver, or misdirected delivery of any communication; for any errors in the content of a communication; or for any actions taken or not taken by you or any third party in reliance on a communication.

In order to receive security alerts or Optional Communications via text message, your mobile device must be subscribed to a wireless service on a participating mobile carrier, and you must be able to receive text messages using your mobile device and your carrier's service. A list of mobile carriers that can receive text messages from Capital One can be found here.

Text Messages, Calls and/or Emails to You By providing us with a telephone number (including a wireless/cellular, mobile telephone number and/or email address), you consent to receiving calls from us and our Service Providers at that number INCLUDING THOSE MADE BY USE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM ("ATDS"), and/or emails from us for our everyday business purposes (including identify verification). You acknowledge and agree that such telephone calls include, but are not limited to, live telephone calls, prerecorded or artificial voice message calls, text messages, and calls made by an ATDS from us or our affiliates and agents. Please review our Privacy Policy for more information.

8. Funds Transfers for Bank Accounts This section applies only in connection with your use of the Services to access your Bank Account.

General Your ability to transfer funds from certain accounts is limited by federal law. You should refer to the deposit account agreement which governs your deposit account, a copy of which is available by calling Online Banking Customer Service at 1-877-442-3764 for these legal restrictions and the service charges and penalties for excessive withdrawals or transfers. Transfers made using the Services are included in calculating the permissible number of transfers from certain accounts described in your deposit account agreement.

We reserve the right to impose a frequency or dollar limit on transfers, or to refuse to make any transfer, between certain accounts. We are obligated to notify you promptly if we decide to refuse to complete your transfer instruction; provided, however, that notiﬁcation is not required if you attempt to make transfers that are prohibited under this Agreement, any Additional Agreement, other Capital One agreements aﬀecting the terms of your account(s), or federal or state laws.

Except as provided in this Agreement, all Internal Transfer instructions received before 11:59 p.m. Eastern Time will be posted to your account the same Business Day. All Internal Transfer instructions received on or aer 11:59 p.m. Eastern Time will be posted the next Business Day.

Transfers to or from Capital One 360 accounts are not considered Internal Transfers.

External Funds Transfers Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 13 of 37 PageID #: 78 The External Funds Transfer service allows you to transfer funds between your linked personal deposit accounts at Capital One and certain deposit or investment accounts (checking, savings, or money market accounts) at other financial institutions. An "Inbound Transfer" moves funds into an account at Capital One from an account outside Capital One. An "Outbound Transfer" moves funds from an account at Capital One to an account outside Capital One. You will need to register each of your non- Capital One accounts that you wish to use for these transfers. You agree that you will only attempt to register accounts for which you have the authority to transfer funds. Capital One will post Inbound Transfers to your account on the "Deliver By" date. For Outbound Transfers, your funds will be debited on the Business Day following the "Send On" date and arrive at your external financial institution on the "Deliver By" date. Consult your external financial institution for details on when funds will post to your account.

For transfers into a Capital One Bank retail account, the funds may not be available until the third Business Day aer the "Deliver By" date. For transfers into Capital One Direct Banking accounts, the funds will become available in accordance with the terms of your Account Agreement.

Cut-oﬀ Time:

Standard Transfers: 7:00 p.m. ET Next Day Transfers: 7:00 p.m. ET

Any transfer made aer the cut-oﬀ time will be initiated the next Business Day.

Modifying or Cancelling Transfers: Pending transfer instructions can be cancelled or modified until the status changes to "In Process." Instructions cannot be cancelled or modified aer cut-off time for the transfer date.

Transfer Fees: There is no fee to initiate Inbound Transfers or Outbound Transfers. We may change our fee schedule at any time. If we make a change, you will be notiﬁed in writing as required by applicable law. Cancellation of the services for which fees are charged does not release you from liability for any and all fees assessed by us but not yet paid prior to your cancellation of such service.

Transfer Limits: Transfer limits are deﬁned at enrollment to the Service. These daily and monthly dollar limits apply to the total of all transfers for all accounts linked to the user proﬁle. Any transfer initiated on a day that is not a Business Day counts toward the applicable limit for the next Business Day. A transfer remains "In Process" until fully processed and it will appear as "In Process" on your Transfer Activity page within Online Banking. Standard transfers typically remain "In Process" until the close of the third Business Day aer the transfer is initiated. We may change your transfer limits at any time. Any decrease will be subject to notice, if required by law, but you agree that we may reduce your limits without prior notice upon occurrence of a Disqualifying Event.

Disqualifying Events:

Any of your accounts with Capital One are not current or are not in good standing. You have had an overdra, an over-limit item, or an item returned for insuﬃcient funds with respect to any Capital One account during the current or three prior calendar months. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 14 of 37 PageID #: 79 You have had any prior transfer to or from a non-Capital One account canceled, revoked, or uncompleted due to insuﬃcient funds, revoked authorization, stopped payments, frozen accounts, or any similar reason.

Status Email: Capital One will periodically send messages to your primary email address during the external funds transfer process. These messages will provide information pertaining to the trial deposit process, conﬁrm account linkages, and contain status updates for transfers in progress. Primary email address is deﬁned in Online Banking and you are responsible for updating the address should it change. Email messages regarding the funds transfer process do not contain any non-public personal information and cannot be suppressed.

Choice of Law We may accept, on your behalf, payments to your account that are not subject to the Electronic Funds Transfer Act (“EFTA”) and Regulation E. Your rights and obligations with respect to such transfers shall be governed and construed in accordance with Oﬃce of the Comptroller of the Currency Regulation J, Subpart B-Funds Transfers through Fedwire, and the applicable Oﬃce of the Comptroller of the Currency Operating Circular. Electronic transfers sent or received via automated clearing house are subject to the rules of the National Automated Clearing House Association ("NACHA") and Regulation E. Where none of the above stated rules apply, the transactions contemplated by this Agreement shall be governed by the applicable provisions of this Agreement.

Our Liability for Failure to Complete Transfers If we do not complete a transfer to or from your Account on time or in the correct amount according to our Agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will NOT be liable: (a) if, through no fault of ours, you do not have enough money in your Account to make the transfer; (b) if circumstances beyond our control (such as ﬁre or ﬂood) prevent the transfer, despite reasonable precautions that we have taken; or (c) for any other reason stated elsewhere in this Agreement. If we are ever obligated by law to pay interest on the amount of a transfer, you will be paid interest on a daily basis equal to the current annual percentage rate that is otherwise applicable to the account from which the funds transfer should have occurred. In the event we are ever liable to you for damages due to a transfer, your damages will be limited to actual damages only. We will not be responsible for incidental or consequential damages, court costs or attorneys' fees.

Payments A. When Using the Services to Access Your Bank Account Online payments include (a) payments made through the Services for which the Payment Account is a Capital One account ("Outgoing Payments"), including, without limitation, any payment that you schedule through our Online Bill Pay service, (b) payments to certain Capital One accounts ("Incoming Payments"), and (c) payments made in the form of Funds Transfers to eligible loan or line of credit accounts (which are covered by the "Funds Transfers" section above and any other provisions governing Funds Transfers in this Agreement).

Online Bill Pay payments and any other bill payments permitted by the Services will be debited from your designated Payment Account. Capital One's receipt of your bill payment instructions authorizes Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 15 of 37 PageID #: 80 us to debit (or if the Payment Account is with another ﬁnancial institution, request that such institution debit) your Payment Account, and to remit (or request that such ﬁnancial institution remit) funds on your behalf. We will perform the Service in such a manner as to allow funds to arrive at the designated Biller's location as near as reasonably possible to the Scheduled Deliver By date designated by you. You also authorize us to credit your Online Bill Payment Account for payments returned to us by the United States Postal Service or any Biller, or for payments remitted to you on behalf of another Authorized Person of the Service.

With respect to Outgoing Payments, if at the time funds are to be removed from your Payment Account, there are insuﬃcient funds, and we pay the bill, you understand and agree that you are responsible for reimbursing Capital One for the amount of the bill, along with any additional fees or penalties. The dollar amount of these fees or penalties is published in the Capital One Fee Schedule, available at any Capital One banking oﬃce, via an email request or by calling Online Banking Customer Service at 1-877-442-3764. You further understand that any and all payments by Capital One in these circumstances are purely at our discretion and that the payment by Capital One of any bills under these circumstances in no way obligates us to pay the same or similar bills in the future.

You should keep your Payment Accounts open and active. Should your bill pay eligible checking accounts close, your Online Bill Pay services will end and any unprocessed Outgoing Payment transactions will be cancelled. Cancellation of your Online Bill Payment transactions may take up to ﬁve (5) Business Days from the processing date of a payment scheduled from your closed checking account. If you close your Payment Account, any Incoming Payments will not be processed. Outgoing Payments scheduled through Online Bill Payment from the closed Payment Account may be processed, depending on proximity to the Scheduled Due date.

With respect to Incoming Payments for which your Payment Account is not a Capital One account, additional terms and conditions established by the ﬁnancial institution with which you have such Payment Account may apply to such Incoming Payments.

With respect to all Outgoing Payments and Incoming Payments that you may schedule through the Services: You understand and agree that it is your responsibility, in accordance with all terms hereof, to authorize bill payments in such a manner that the bills will be paid on time and that the Biller will receive your payment no later than the Due Date on the statement provided to you by the Biller. You understand and agree that we reserve the right to impose a frequency or dollar limit on payment requests or to refuse to make any payment you have requested. You understand we will notify you promptly if we decide to refuse to complete any payment instruction; provided, however, that notiﬁcation is not required if you attempt to make payments that are prohibited under the "Prohibited Payments" section of this Agreement.

B.When Using the Services to Access Your Credit Card Account Payments to certain Capital One credit card account(s) from any checking, savings or other deposit account(s) you designate for payment may be made via the Pay Capital One feature of Online Banking. Pay Capital One payments through Online Banking will be debited from your designated Payment Account, which may or may not be a Capital One account. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 16 of 37 PageID #: 81 When you designate a Payment Account, you warrant that you are an authorized signer on the Payment Account. Pay Capital One payments through Online Banking will be debited from your designated Payment Account. Capital One's receipt of your bill payment instructions authorizes us to debit (or if the Payment Account is with another ﬁnancial institution, request that such institution debit) your Payment Account, and to remit (or request that such ﬁnancial institution remit) funds on your behalf.

Make Instructions and Changes with Time to Spare You understand and agree that to be processed in accordance with your instructions, payments instructions and any changes to these instructions through Online Banking must comply with the payment rules disclosed when you make a payment. These payment rules are considered part of this Agreement.

If You Close Your Payment Account or Capital One Credit Card If you close your Payment Account with Capital One or any other institution, any payments scheduled to be deducted from that Payment Account will not be processed. If you do not make alternative arrangements, you will be solely responsible for any fees incurred for late or non-payment as a result. If you close any Capital One credit cards for which you have set up payments, please cancel your payments with the institution holding the Payment Account.

10. Online Bill Payment for Bank Accounts This section applies only in connection with your use of the Services to access your Bank Account.

General Authorization You authorize us to process the transactions permitted under this Agreement for you as requested by you from time to time, and you authorize us to post transactions to your account(s) as directed. You may request a payment be delivered one time, or on an automatic recurring basis in such manner as you direct. We reserve the right to refuse payment to any Biller to which you may direct a payment. We will notify you promptly if we decide to refuse to pay a Biller designated by you. The notiﬁcation is not required, however, if you attempt to make a payment under the section(s) titled "Prohibited Payments" of this Agreement. You authorize us to debit your account(s) for any and all fees for the additional services (as described below) you have chosen to utilize.

Withdrawal of Funds for Bill Payment and Payment of Fees You have the option of selecting from which one of your deposit accounts the Service will withdraw funds for bill payments. We may assess fees, for which you shall be liable, in the event we provide to you, upon your request, any one or more of the following additional services, or other additional services for which fees are charged:

Provision of copies of checks which have cleared your account and have been paid Stop payment orders for bill payments processed but not yet paid from your Online Bill Payment Account Manually issuing a check upon your special request

Cancellation of the services for which fees are charged does not release you from liability for any and all fees assessed by us but not yet paid prior to your cancellation of such service. You understand the Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 17 of 37 PageID #: 82 dollar amount of these fees is published in the Capital One Fee Schedule available at any Capital One banking oﬃce, via an email request, or by calling Customer Service at 1-877-442-3764.

Payment Authorization and Payment Remittance By providing us with names and account information of Billers to whom you wish to direct payments, you authorize us to follow your payment instructions. In order to process payments more eﬃciently and eﬀectively, we may edit or alter payment data or data formats in accordance with instructions we receive from your Billers.

Our receipt of your bill Payment Instructions authorizes us to debit your Eligible Transaction Account and to remit funds on your behalf to the designated Biller to allow the funds to arrive at the designated Biller's location as near as reasonably possible to the Scheduled Payment Date designated by you. You also authorize us to credit your Eligible Transaction Account for payments returned to us by the United States Postal Service or any Biller, or for payments remitted to you on behalf of another Authorized Person of the Service.

We will attempt to properly and timely make all your payments. However, you agree that we shall incur no liability, and any Service Guarantee shall be void, if we are unable to complete any payments initiated by you because of the existence of any one or more of the circumstances set forth in the section titled "Our Responsibility for Payment and Funds Transfers" of this Agreement.

Please see the section of this Agreement titled "IN CASE OF ERRORS OR QUESTIONS ABOUT FUNDS TRANSFERS OR BILL PAYMENTS MADE" for information regarding questions or errors about funds transfers or bill payments made through the Services.

If a payment posts aer its Scheduled Deliver By date because the Biller(s) failed to credit your payment promptly aer receipt, but you scheduled the payment in accordance with this Agreement and none of the other exceptions set forth in the section titled "Our Responsibility for Payment and Funds Transfers" of this Agreement, we will assist you and your Biller(s) in attempting to resolve any delayed payment issues.

Provided none of the foregoing exceptions are applicable, if the Service causes an incorrect amount of funds to be removed from your Eligible Transaction Account or causes funds from your Eligible Transaction Account to be directed to a Biller which does not comply with your Payment Instructions, We will be responsible for returning the improperly transferred funds to your Eligible Transaction Account , in accordance with the electronic funds transfer disclosures provided to you at account opening, and for directing to the proper Biller any previously misdirected transactions, and, if applicable, for any late payment related charges.

Payment Scheduling When you are setting up your Payment Instructions, the Service will indicate the earliest possible Scheduled Payment Date for each Biller. You will not be able to select a Scheduled Payment Date prior to this earliest possible date. When scheduling payments, you must select a Scheduled Payment Date that is no later than the actual Due Date reﬂected on your Biller statement unless the Due Date falls on a non-Business Day. If the actual Due Date falls on a non-Business Day, you must select a Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 18 of 37 PageID #: 83 Scheduled Payment Date that is at least one (1) Business Day before the actual Due Date. Scheduled Payment Dates must be prior to any late date or grace period.

Depending on the method of payment, your Eligible Transaction Account may be debited prior to the Scheduled Payment Date. For example, if the selected method of payment is a dra, and the dra arrives earlier than the Scheduled Payment Date due to expedited delivery by the postal service, and the Biller immediately deposits the dra, your Eligible Transaction Account may be debited earlier than the Scheduled Payment Date. To help avoid an overdra or returned check fee, you should make sure that there are suﬃcient available funds in your account to cover your payment a few days before the Scheduled Payment Date, and keep those funds available until the payment is deducted.

Electronic Bills (eBills) Electronic bills may not be available from all of your Billers. Electronic bills are provided as a convenience only, and you remain solely responsible for contacting your Billers directly if you do not receive their statements. In addition, if you elect to activate one of the Service's electronic bill options, you also agree to the following:

1. Presentation of electronic bills – You will receive electronic bills from a Biller only if both: (a) you have designated it in the Service as one of your Billers, and (b) the Biller has arranged with our Service Provider to deliver electronic bills. The Service may then present you with electronic bills from that Biller if either: (1) you affirmatively elect online within the Service to receive electronic bills from the Biller, or (2) the Biller chooses to send you electronic bills on a temporary “trial basis.” In either case, you can elect online within the Service to stop receiving electronic bills from a Biller. Electing to receive electronic bills, automatically receiving trial electronic bills, and declining further elected or trial electronic bills all occur on an individual Biller basis. The Service does not include an option to prevent ever participating in the automatic trial electronic bill feature. When you elect to receive electronic bills from a Biller, you may be presented with terms from that Biller for your acceptance. We are not a party to such terms. 2. Paper Copies of electronic bills – If you start receiving electronic bills from a Biller, the Biller may stop sending you paper or other statements. The ability to receive a paper copy of your statement(s) is at the sole discretion of the Biller. Check with the individual Biller regarding your ability to obtain paper copies of electronic bills on a regular or as-requested basis. 3. Sharing Information with Billers – You authorize us to share identifying personal information about you (such as name, address, telephone number, Biller account number) with companies that you have identified as your Billers and which we have identified as offering electronic bills for purposes of matching your identity on the Service’s records and the Biller’s records to (a) activate your affirmative request for electronic bills, and/or (b) confirm your eligibility for “trial basis” electronic bills. 4. Information held by the Biller. We are unable to update or change personal information held by the Biller (such as name, address, phone numbers and email addresses). If you need to make any changes, you must contact the Biller directly. Additionally, it is your responsibility to maintain all usernames and passwords for all electronic Biller sites. You also agree not to use someone else’s information to gain unauthorized access to another person’s bill. We may, at the request of the Biller, provide to the Biller your email address, service address, or other data specifically requested Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 19 of 37 PageID #: 84 by the Biller for purposes of the Biller matching your identity against its records or informing you about the Biller’s services and/or bill information. 5. Activation. We will notify the Biller of your request to receive electronic billing information. The presentment of your first electronic bill may vary from Biller to Biller and may take up to sixty (60) days, depending on the billing cycle of each Biller. While your electronic bill feature is being activated, it is your responsibility to keep your accounts current. Each electronic Biller reserves the right to accept or deny your request to receive electronic bills. 6. Authorization to obtain bill data. You authorize us to obtain bill data from your Billers that you have requested to send you electronic bills, and from your Billers that wish to send you trial electronic bills. For some Billers, you will be asked to provide us with your user name and password for that Biller. By providing us with such information, you authorize us to use the information to obtain your bill data. 7. Notification. We will attempt to present all of your electronic bills promptly. In addition to notification within the Service, we may send an e-mail notification to the e-mail address listed for your account. It is your sole responsibility to ensure that this information is accurate. In the event you do not receive notification, it is your responsibility to periodically log in to the Service and check on the delivery of new electronic bills. The time for notification may vary from Biller to Biller. You are responsible for ensuring timely payment of all bills. 8. Cancellation of electronic bill notification. The electronic Biller reserves the right to cancel the presentment of electronic bills at any time. You may cancel electronic bill presentment at any time. The timeframe for cancellation of your electronic bill presentment may vary from Biller to Biller. It may take up to sixty (60) days, depending on the billing cycle of each Biller. We will notify your electronic Biller(s) as to the change in status of your account and it is your sole responsibility to make arrangements for an alternative form of bill delivery. We will not be responsible for presenting any electronic bills that are already in process at the time of cancellation. 9. Non-Delivery of electronic bill(s). You agree to hold us harmless should the Biller fail to deliver your statement(s). You are responsible for ensuring timely payment of all bills. Copies of previously delivered bills must be requested from the Biller directly. 10. Accuracy and dispute of electronic bill. We are not responsible for the accuracy of your electronic bill(s). We are only responsible for presenting the information we receive from the Biller. Any discrepancies or disputes regarding the accuracy of your electronic bill summary or detail must be directly addressed and resolved with the Biller by you.

This Agreement does not alter your liability or obligations that currently exist between you and your Billers.

Payment Methods There are limits on the amount of money you can send or receive through our Service. Your limits may be adjusted from time-to-time at our sole discretion. You may log in to the Online Banking site to view your individual transaction limits. We or our Service Provider also reserve the right to select the method in which to remit funds on your behalf through the Service, and, in the event that your Eligible Transaction Account is closed or otherwise unavailable to us, the method to return funds to you. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 20 of 37 PageID #: 85 These payment methods may include, but may not be limited to, an electronic debit, a paper check drawn on the account of our Service Provider, or dra drawn against your own account.

Online Bill Payment Service Guarantee Due to circumstances beyond our control including, but not limited to, delays in handling and posting payments by Billers or other ﬁnancial institutions, you understand that some transactions may take longer than normal to be credited to your account with a Biller. You understand we will bear responsibility for any late payment related charges, which have not been waived by the Biller, up to $50.00 should a payment post aer its Due Date, provided: you scheduled an Online Bill Payment with a Scheduled Deliver By date in accordance with the section under this Agreement titled "Payment Scheduling"; none of the exceptions set forth in the section titled "Our Responsibility for Payment and Funds Transfers" of this Agreement exist; the payment is not an Exception Payment; and you otherwise comply with this Agreement.

Payment Cancellation You may cancel or edit any Scheduled Payment (including recurring payments) and will not incur a charge for canceling or editing a Scheduled Payment prior to being processed by us. You understand and agree that once we have begun processing a payment it cannot be cancelled or edited. In such circumstances, you must submit a "stop-payment" request to us.

Stop Payment Requests You understand our ability to process a stop-payment request will depend on the payment method and whether or not a payment has cleared your Online Bill Payment Account. You understand we may not have a reasonable opportunity within which to act on any stop-payment request aer we have already processed a payment. If you desire to stop any payment that has already been processed but has not yet cleared your Online Bill Payment Account, you must contact Capital One Customer Service by calling Customer Service at 1-877-442-3764. You understand and agree that we will have no liability for failing to accommodate a stop-payment request. We may also require you to present your request in writing within fourteen (14) days. The charge for each stop-payment request will be the current charge for such service as stated in our Fee Schedule.

Prohibited Payments We cannot schedule Bill Payments to Billers located outside the United States or any of its territories, any single payment greater than $99,999.99, or payments otherwise prohibited by law.

The following types of payments are prohibited through the Service, and we have the right but not the obligation to monitor for, block, cancel and/or reverse such payments: a. Payments to or from persons or entities located in prohibited territories (including any territory outside of the United States); and b. Payments that violate any law, statute, ordinance or regulation; and c. Payments that violate the Acceptable Use terms below; and Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 21 of 37 PageID #: 86 d. Payments related to: (1) tobacco products, (2) prescription drugs and devices; (3) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (4) drug paraphernalia; (5) ammunition, firearms, or firearm parts or related accessories; (6) weapons or knives regulated under applicable law; (7) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (8) goods or services that are sexually oriented; (9) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (10) goods or services that defame, abuse, harass or threaten others; (11) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (12) goods or services that advertise, sell to, or solicit others; or (13) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction; and e. Payments related to gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to, casino games, sports betting, horse or dog racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes; and f. Payments relating to transactions that (1) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or multi-level marketing programs, (2) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (3) are for the sale of items before the seller has control or possession of the item, (4) constitute money-laundering or terrorist financing, (5) are associated with the following "money service business" activities: the sale of traveler’s checks or money orders, currency dealers or exchanges, or check cashing, or (6) provide credit repair or debt settlement services; and g. Tax payments and court ordered payments.

In addition to the above-referenced prohibited payments, we may also block and/or reverse payments that involve donations or payments to an unauthorized charity or non-proﬁt organization, unless we have performed appropriate due diligence on and investigation of such charity or non-proﬁt organization and have determined its legitimacy, in our sole discretion. In no event shall we or our Service Providers be liable for any claims or damages resulting from your scheduling of prohibited payments. We have no obligation to research or resolve any claim resulting from a prohibited payment. All research and resolution for any misapplied, mis-posted or misdirected prohibited payments will be your sole responsibility and not ours.

Acceptable Use You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Service, regardless of the purpose of the use, and for all communications you send through the Service. We and our Service Providers have the right but not the obligation to monitor and remove communications content that we find in our sole discretion to be objectionable in any way. In addition, you are prohibited from using the Service for communications or activities that: (a) violate any law, statute, ordinance or regulation; (b) promote hate, violence, racial intolerance, or the financial exploitation of a crime; (c) defame, abuse, harass or threaten others; (d) Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 22 of 37 PageID #: 87 include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (e) infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (f) impose an unreasonable or disproportionately large load on our infrastructure; (g) facilitate any viruses, trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (h) constitute use of any robot, spider, other automatic device, or manual process to monitor or copy the Service or the portion of the Site through which the Service is offered without our prior written permission; (i) constitute use of any device, soware or routine to bypass technology protecting the Site or Service, or interfere or attempt to interfere, with the Site or the Service; or (j) may cause us or our Service Providers to lose any of the services from our internet service providers, payment processors, or other vendors.

Exception Payments Exception Payments may be scheduled through the Service, but Exception Payments are discouraged and must be scheduled at your own risk. Except as required by applicable law, in no event shall the Service Provider be liable for any claims or damages resulting from your scheduling of Exception Payments. In no event shall we be liable for any claims or damages resulting from your requesting and scheduling these types of payments. The Online Bill Payment Service Guarantee, as it applies to any late payment related charges, is void when these types of payments are scheduled and/or processed through the use of the Service. We have no obligation to research or resolve any claim resulting from your scheduling one of these types of payments. All research and resolution for any misapplied, misposted or misdirected payments will be your sole responsibility.

Information Authorization You understand that you are not completely enrolled in the Service until the Servicer verifies your identity and obtains other necessary information. By enrolling in the Service, you agree that the Servicer may request a review of your credit file and/or credit report, through the use of a consumer reporting agency. You shall not incur a cost for this credit review. In order to resolve payment-posting issues, you authorize the Servicer to gather any and all reasonably necessary financial information from your Biller(s) or financial institution(s) regarding your payment(s).

Biller Limitation We reserve the right to refuse to pay any Biller to whom you may direct a payment. As required by applicable law, we will notify you promptly if it decides to refuse to pay a Biller designated by you as set forth in Prohibited Payments section or Exceptions Payments section of this Agreement.

Returned Payments In using the Service, you understand that Billers and/or the United States Postal Service may return payments to the Service for various reasons such as, but not limited to, Biller's forwarding address expired; Biller account number is not valid; Biller is unable to locate account; or Biller account is paid in full. The Service will attempt to research and correct the returned payment and return it to your Biller, or void the payment and credit your Eligible Transaction Account. You may receive notiﬁcation from the Service.

Failed or Returned Payment Instructions Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 23 of 37 PageID #: 88 In using the Service, you are requesting us to attempt to make payments for you from your Eligible Transaction Account. If we are unable to complete the Payment Instruction for any reason associated with your Eligible Transaction Account (for example, there are insufficient funds in your Eligible Transaction Account, or the Payment Instruction would exceed the credit or overdra protection limit of your Eligible Transaction Account, to cover the payment), the Payment Instruction may or may not be completed. In certain circumstances, we will attempt to debit the Eligible Transaction Account a second time to complete the Payment Instruction. In some instances, you will receive a return notice from us. In each such case, you agree that: a. You will reimburse us or our Service Provider immediately upon demand the amount of the Payment Instruction if we have delivered the payment but there are insufficient funds in, or insufficient overdra credits associated with, your Eligible Transaction Account to allow us to complete the debit processing; b. You may be assessed a fee by our Service Provider and by us if the Payment Instruction cannot be debited because you have insufficient funds in your Eligible Transaction Account, or the transaction would exceed the credit or overdra protection limit of your Eligible Transaction Account, to cover the payment, or if we cannot otherwise collect the funds from you; the fee amount will be as set forth in your fee schedule from us (including as disclosed on the Site) or your account agreement with us. You hereby authorize us to deduct these amounts from your designated Eligible Transaction Account, including by ACH debit; c. You will reimburse us and our Service Provider for any fees or costs we incur in attempting to collect any amounts from you; and d. We and our Service Provider are authorized to report the facts concerning the return to any credit reporting agency.

11. Electronic Communications Disclosure Please read this Electronic Communications Disclosure ("eCommunications Disclosure") thoroughly —it contains important information about your legal rights.

Your Legal Rights Certain laws require us to provide speciﬁc information ("Communications") to you in writing, which means you have a right to receive that information on paper. We may provide such information to you electronically if we ﬁrst present this eCommunications Disclosure and obtain your consent to receive it electronically. Your consent will also apply to any other person named on your account, product or service, subject to applicable law. Since Online Banking and other Capital One websites include some of this information, you may consent to this eCommunications Disclosure as part of these services.

At times, we may still present you with paper disclosures or other documents that contain important information about your account, and you should continue to review any correspondence that we mail to you, but as a basic proposition we need to know that you are willing to receive disclosures and other information electronically that otherwise must be provided on paper and that you have the hardware and soware needed for access to this information. Any communications that Capital One determines, in its sole discretion, that you should receive in paper rather than electronic form will be Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 24 of 37 PageID #: 89 mailed to the primary address we show for you in our records or otherwise delivered as required by law or any Additional Agreement.

By consenting to this eCommunications Disclosure, you agree that you have or have access to equipment that meets the hardware and soware requirements described below to enable you to sign in and use Online Banking and to access and retain your statements, documents, and disclosures electronically. If, in the future, you no longer have or have access to equipment that meets our hardware and soware requirements, please contact us at 1-877-383-4802 to unenroll from receiving electronic communications. We reserve the right to cancel your participation in this program at any time.

Setting Your Preferences For certain accounts, we have created options that allow you to choose to receive electronically the types of communications that work best for your particular needs. There are two categories of communications that you may be able to receive by electronic means—periodic statements ("Statements") and other disclosures and notices that we may provide as part of your online banking experience at Capital One as described in more detail below ("Other Communications").

Depending on your account, you may be able to set your preferences to receive either or both of these types of Communications electronically. Sign in to Online Banking to see which Communications you may be able to receive electronically. If you decide to receive some Communications in paper and some electronically, the Communications that you receive electronically will be governed by this eCommunications Disclosure.

If your Account is closed, you may lose access to the Services, including the ability to access any Communications we have provided in electronic form. Accordingly, if your Account is closed, we may send Communications to you in paper form via U.S. mail, even if you previously elected to receive such materials electronically.

Paperless Statements You may elect to receive your Statements electronically rather than in paper. Such electronic Statements may contain other related electronic disclosures such as your annual privacy notice and notices of changes in terms regarding products and services, which are otherwise required to be provided in paper form by either the Electronic Fund Transfer Act or the Truth in Lending Act, depending on the product that you have. Your online Statements will be available to review at intervals in accordance with your existing statement cycle date. While enrolled, your online Statement will be available for 18 months or more.

Other Communications If you elect to receive Other Communications electronically rather than in paper form, the Other Communications may be made available through Online Banking or other Capital One websites. These Other Communications may include agreements, disclosures, notices, and other information and communications regarding your accounts, services and products, the use of any the Services, any other Capital One Web services, your relationship with us, and/or other programs, products or services that are or may be in the future made available to you. Other Communications may also include, but are not limited to: Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 25 of 37 PageID #: 90 This eCommunications Disclosure and any updates This Agreement, other service or user agreements for online access to Capital One websites, all updates to these agreements and all disclosures, notices and other communications regarding Online Banking and transactions you make within Online Banking or through other Capital One websites Disclosures, agreements, notices, and other information related to the opening or initiation of an account, product, or service including, but not limited to, account agreements, fee schedules, or other disclosures or notices that may be required by the Truth in Savings Act, Electronic Fund Transfer Act, Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, the Real Estate Settlement Procedures Act or other applicable federal or state laws and regulations Important disclosures and notices relating to the maintenance or operation of an account, product, or service including, but not limited to account information, account activity, account inactivity, payments made or due, or other statements, disclosures or notices that may be required by the Truth in Savings Act, Electronic Fund Transfer Act, Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, the Real Estate Settlement Procedures Act, or other applicable federal or state laws and regulations Any notice or disclosure regarding an account, product, or service fee, including, but not limited to, late fees, and overlimit fees Any notice of the addition of new terms and conditions or the deletion or amendment of existing terms and conditions applicable to accounts, products or services you obtain from us that may be required by the Truth in Savings Act, Electronic Fund Transfer Act, Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, the Real Estate Settlement Procedures Act or other applicable federal or state laws and regulations Our Privacy Notice and other privacy statements or notices (by posting such notices on our website) Certain tax statements or notices that we are legally required to provide to you, such as 1099 forms Certain information or forms that we request from you and ask you to submit electronically, such as signature cards, W-9s, or other agreements

Hardware and Soware Requirements To access and retain the information subject to this consent, you must have or have access to equipment that meets the hardware and soware requirements:

Either the Windows operating system or Macintosh OS X. Internet access and an Internet browser that supports HTML 4.0, TLS 1.2 encryption, Cookies and JavaScript. For Windows users we suggest using the latest version of one of the following free web browsers: Microso Internet Explorer Mozilla Firefox Google Chrome For Macintosh users we suggest using the latest version of one of the following web browsers: Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 26 of 37 PageID #: 91 Apple Safari Mozilla Firefox Google Chrome

Certain older web browsers may not be supported by Capital One. If you're using an outdated version, you may need to update it in order to access your account(s) online. If you're unsure whether your computer or web browser meets our suggested system requirements, please visit https://www.capitalone.com/support-center/browser-support/ for more information.

Statements and certain Other Communications are available in PDF format only. You will need a program that accurately reads and displays PDF ﬁles (such as Adobe® Reader®). If you do not have Adobe® Reader® you can download it at no charge from the following link: https://get.adobe.com/reader/ (Note that by clicking the link, you will be taken to a third-party site not managed by Capital One. As a result, diﬀerent security or privacy practices may apply. We do not endorse, recommend or guarantee any products or services contained at the linked page.)

To print Statements or Other Communications you must have a printer connected to your computer. To download Statements or Other Communications, if available, you must have suﬃcient hard-drive space to store the relevant materials.

How to Withdraw Your Consent You can withdraw your consent to receiving your statement electronically, with no cost to you, online or by phone. To do so, sign in to Online Banking and update your settings or call Customer Service at 1-877-383-4802. Your withdrawal of consent is eﬀective only aer you have communicated your withdrawal to Capital One by calling the appropriate customer service phone numbers and Capital One has had a reasonable period of time to act upon your withdrawal. Such withdrawal of consent will only apply to those communications that are required by law or regulation to be provided to you in paper form. We may continue to deliver to you in electronic format all other communications. Your consent shall remain in force until withdrawn in the manner provided in this section.

Consent Coverage; Certain Notices from You Are Not Covered. You may be required, by contract or applicable law, to give us notice in writing. Your consent here does not relate to those notices, and you must still provide them to us on paper.

Additionally, this eCommunications Disclosure does not apply to the following:

Any notice of default, acceleration, repossession, foreclosure, or eviction, or the right to cure or reinstate or redeem under a credit agreement secured by your primary residence Any transactions subject to Uniform Commercial Code, other than sections 1-107 and 1-206 and Articles 2 and 2A Any other communications that Capital One determines, in its sole discretion, that you should receive in paper rather than electronic form, including oﬀers of products and services

Obtaining Copies of Electronic Communications. We recommend that you print or download a copy of this Agreement, this eCommunications Disclosure, and all other Communications to retain for your permanent records. If you are initiating Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 27 of 37 PageID #: 92 the Online Banking enrollment process at a banking center, the banking center associate can provide you with paper copies

You may print or make a copy of Other Communications by using the "Print" button (or otherwise using your printing functionality) or saving a copy. Do this when you ﬁrst review the Other Communications, because aer submission we do not necessarily keep them all in a place that you can access.

You may also call Customer Service at 1-877-383-4802 to request a paper copy of your Statement or Other Communications. Be sure to specify your account, service, or product identiﬁcation number, as applicable, the speciﬁc Other Communication for which you are requesting a paper copy, and the address to which it should be mailed. We may charge fees for paper copies of the Statements or Other Communications.

Updating Your Contact Information As a courtesy, when your Statement is available online, we will attempt to send an email notification to the address that we have on file. We also may send you an email notification when you have a new Other Communication available for review. Alternatively, we may communicate the Other Communication directly through email.

In the event that your email address or other contact information is changed, you must notify Capital One of such changes immediately through Online Banking. It is your responsibility to update any changes in your email address online, and we are not responsible if you do not receive a courtesy reminder. If you do not receive an email and believe you should have, please verify your email address in Online Banking.

If you fail to update or change an incorrect email address or other contact information, you understand and agree that any Other Communications shall nevertheless be deemed to have been provided to you if they were made available to you in electronic form in Online Banking, or at another Capital One website or emailed to the email address we have for you in our records.

12. Fees and Charges For information about fees that may apply in connection with your Bank Account, please consult the Capital One Fee Schedule, available at any Capital One banking oﬃce, or by calling Online Banking Customer Service at 1-877-383-4802. In addition to such fees set forth in the Fee Schedule, you shall be subject to all fees, charges, penalties, balance requirements, and other restrictions explained in your account agreements or other Additional Agreements.

Fees are subject to change, and we may impose additional charges, penalties or fees in connection with your use of the Services at any time, subject to the terms here.

You agree to promptly pay all fees and charges for services provided through the Services, and you authorize us to automatically deduct all applicable charges and fees from your designated Capital One Payment Account(s) or any other eligible account. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 28 of 37 PageID #: 93 You agree to be responsible for any telephone charges and/or Internet service fees you incur in accessing your account(s) through the Services.

13.Changes in Services; Interruptions in Service We may, from time to time and at any time, revise, update, discontinue or otherwise modify, temporarily or permanently, the Services in whole or in part (including, without limitation, the Online Banking Site, this Agreement, the scope of the Services, and any materials related to the Services), or your access to them. We will attempt to provide prior notice of any such material changes (for example, by posting a notice of such changes on the Online Banking Site when you sign in, and/or sending a notice to you at the address shown on our records or sending you a secure message), but cannot guarantee that such notice will be provided.

Whenever reasonably practicable, we will attempt to post or send such notice at least thirty (30) days in advance of the eﬀective date of any additional fees for online transactions, or of any stricter limits on the type, amount or frequency of transactions or any increase in your responsibility for unauthorized transactions; provided, that we cannot guarantee that we will provide such notice by such time; and provided further, that we reserve the right to make any such changes eﬀective immediately if necessary to maintain the security of the system or to comply with any laws or regulations. If such a change is made, and it can be disclosed without jeopardizing the security of the system, we will provide you with electronic or written notice within thirty (30) days aer the change.

Changes to the Services may render prior versions of the Services obsolete. Without limiting the foregoing, we reserve the right to terminate this Agreement as to all prior versions of the Services and/or related materials and limit access to our more recent versions and updates.

You may choose to accept or decline changes by closing, continuing or discontinuing use of the Services to which these changes relate. Your use of the Services aer we make any changes will constitute your agreement to such changes. We also reserve the option, in our sole business judgment, to waive, reduce or reverse charges or fees in individual situations.

The Service is generally available for your use 7 days a week, 24 hours a day. However, we may from time to time perform maintenance to the Services or experience hardware, soware, or other problems related to the Services, resulting in interrupted service, delays or errors in the Services. We will attempt to provide prior notice of such interruptions, delays, or errors but cannot guarantee that such notice will be provided.

14.Our Responsibility for Payments and Funds Transfers A. When Using the Services to Access Your Bank Account

By using any payment or funds transfer service available through the Services, you warrant that you are an authorized signer on the account from which the funds are being drawn to make the payment or transfer. We, or a third party acting as our agent, will use reasonable eﬀorts to timely and properly complete funds transfers and bill payments from your designated checking, savings or other deposit account(s) or from your line of credit account(s) (as applicable) according to your properly entered and transmitted instructions. However, neither a Service Provider nor we will be liable in any way for Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 29 of 37 PageID #: 94 any failure or delay in completing any such transaction (whether an Outgoing Payment, Incoming Payment or funds transfer, as applicable):

If, through no fault of our own or of our agent, you do not have adequate money in a designated checking, savings, or other deposit account to complete a transaction from that account, if that account has been closed, or if the transaction would exceed the credit limit on any applicable overdra line of credit If our payment processing center is not working properly and you know or have been advised by us about the malfunction before you execute your bill payment instructions If you have not properly followed instructions on how to make a funds transfer If you do not provide Capital One with complete, correct and current Payment Account or Biller information, or if you otherwise do not give complete, correct and current instructions so that a funds transfer or bill payment can be made If you do not authorize a bill payment or transfer soon enough for your payment to be made and properly credited by the Biller by the Due Date If a timely bill payment is made but the Biller nevertheless does not credit your payment promptly aer receipt If withdrawals from any accounts have been prohibited by a court order such as a garnishment or other legal process If we or our agent reasonably believes that a transaction may be unauthorized and based thereon the transaction is not completed If your Computer was not working properly such that it interfered with your attempt to authorize a funds transfer or bill payment If circumstances beyond our or our agent's control prevent making a funds transfer or bill payment. Such circumstances include but are not limited to computer failure, telecommunication outages, postal strikes and other labor unrest, delays caused by Billers, ﬁres, ﬂoods, and other natural disasters, terrorist acts or war In any other set of circumstances as set forth in your Additional Agreements

B. When Using the Services to Access Your Credit Card Account By using any payment service available through the Services, you warrant that you are an authorized signer on the account from which the funds are being drawn to make the payment. We, or a third party acting as our agent, will use reasonable eﬀorts to complete payments from your Payment Account(s) according to your instructions. However, neither our Service Providers nor we will be liable in any way (including, but not limited to, payment processing errors or fees):

If, through no fault of our own or of our agent, you do not have enough available funds or credit in your account to complete a transaction, or if your Payment Account has been closed If Online Banking is not working properly and you knew or were told about the malfunction before you started the transaction If you have not properly followed instructions on how to make a payment If you do not provide Capital One with complete, correct, and current Payment Account information, contact information, or if you otherwise do not give complete, correct, and current instructions If you do not authorize a bill payment in time for your payment to be made and credited by the due date Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 30 of 37 PageID #: 95 If withdrawals from your account have been prohibited by a court order such as a garnishment or other legal process If we or our agent reasonably believe that a transaction may be unauthorized If your computer, computer system, or any related equipment and soware was not working properly If circumstances beyond our or our agent's control prevent making a bill payment including, but not limited to, computer failure, telecommunication outages, postal strikes and other labor unrest, delays caused by payees, ﬁres, ﬂoods, and other natural disasters, terrorist acts, or war In any other set of circumstances as set forth in any Additional Agreements

15. Disclosure of Account Information to Third Parties You authorize us to disclose to third parties, aﬃliates, and agents, such as independent auditors, consultants or attorneys, information you have provided or that we, or our aﬃliates, have obtained about your accounts and the transfers you make on Online Banking for the following reasons:

To comply with laws, government agency rules or orders, subpoenas, or other legal process or to give information to any government agency or oﬃcial having legal authority to request such information To verify your account's existence and condition for a third party, such as a credit bureau or merchant When necessary to complete any type of transfers and any type of bill payments To provide services relating to your account or to oﬀer other products and services If you give your permission

For additional information on how we may share your information, please visit: https://www.capitalone.com/identity-protection/privacy

16. Statement of Record If you receive paper and electronic statements, any account information provided by the Services is not the statement of record. The periodic statement that is mailed to you will be the statement of record. If you have chosen to stop receiving paper statements, the periodic statement provided to you electronically will be the statement of record. In any case, you are responsible for reviewing any statement and other account communications sent to you by postal mail. Any mailed statement and other account communications will continue to contain important information about your account(s), regardless of whether you access your account(s) through the Services or whether you have chosen to receive your statement electronically.

17 Your Responsibilities and Liabilities A. When Using the Services to Access Your Bank Account It is your sole responsibility to ensure that the contact information in your online banking user proﬁle is current and accurate. This contact information includes, but is not limited to, name, address, phone numbers, email addresses, and account numbers.

Changes can be made either by calling Online Banking Customer Service at 1-877-383-4802 or via US mail. We are not responsible for any payment processing errors or fees incurred by you if you do not Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 31 of 37 PageID #: 96 provide accurate account or contact information.

If you close any Payment Account, you must notify us and identify a new Payment Account for the selected Services. Additionally, if you close all your accounts with us, you agree to notify us to cancel your Services.

Unauthorized Transactions You will be sent periodic statements for your account(s) with the regularity provided for in your account agreement(s). Your role is extremely important in the prevention of any wrongful use of your account(s). You must carefully examine your statement upon receipt.

Tell us AT ONCE if you believe that an unauthorized transaction has been or may be made from your account(s); if you believe another person has improperly obtained your online password(s) or has transferred or may transfer money from your account(s) without authorization; or you suspect fraudulent activity on your account(s).

You can call Customer Service at 1-877-383-4802 between the hours of 8:00 a.m. and 11:00 p.m. ET every day, or write to us at Capital One, N.A., 7933 Preston Rd., Plano, TX 75024, or log into your account at capitalone.com and click on the transaction.

Telephoning us right away will help you reduce possible losses. Without timely notiﬁcation, you could lose all the money in your designated checking, savings or other deposit accounts plus the maximum amount of credit available from your revolving line of credit account if it is used as overdra protection.

To the extent a transaction is an electronic fund transfer from a Personal Account, the following rules apply: You can lose no more than $50 in connection with an unauthorized transfer resulting from the loss or the of your Access Information if you notify us within two Business Days of learning of the loss or the of your Access Information. However, you can lose as much as $500 in connection with an unauthorized transfer resulting from the loss or the of your Access Information if you do not notify us within two Business Days of learning of the loss or the of your Access Information and we can prove that we could have stopped the unauthorized transfer had we been notiﬁed. If you do not report unauthorized transactions that appear on any of your periodic statements within 60 days aer such statements are mailed or electronically transmitted to you, you risk unlimited losses on transactions made aer the 60 day period if we can prove that we could have prevented the unauthorized use had we been notiﬁed within this 60 day period. If extenuating circumstances, such as a long trip or hospital stay, kept you from telling us, the time periods in this section may be extended.

You agree to assist us in our eﬀorts to recover any funds that were transferred or paid without your permission.

B. When Using the Services to Access Your Credit Card Account Update, Protect, and Monitor Your Contact and Other Information It is your sole responsibility to ensure that your contact, Payment Account, and other information is current and accurate. This contact information includes, but is not limited to, name, address, phone numbers, email addresses, Payment Account numbers, and any other information about your Payment Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 32 of 37 PageID #: 97 Accounts(s). Changes to contact information can be made through the Online Banking Site or by notifying us as speciﬁed on our Contact Us page. Failure to provide accurate and complete information (including misrepresenting your identity or other information) may result in errors in your requested payments or be a basis for our prohibiting your use of Online Banking in the future.

To prevent unauthorized access to your account(s) and use of Online Banking and your Payment Account(s), you agree to keep your user name, password, and any other security or access information (collectively, "Access Information") conﬁdential. We recommend that you memorize your Access Information and do not write it down. We also recommend that you do not reuse passwords. Instead, create a unique password for your account. You agree not to give or otherwise make available your Access Information to any unauthorized individual.

You will receive periodic statements for your account(s) with the regularity provided for in your account agreement(s). To help prevent any wrongful use of or errors on your account(s), you must carefully examine your statement upon receipt.

Unauthorized Transactions Notify us IMMEDIATELY if you suspect that an unauthorized transaction has been or may be conducted from your account(s), another person has improperly obtained your online password(s), or fraudulent activity has occurred on your account(s) by notifying us as speciﬁed on our Contact Us page. You agree to assist us in our eﬀorts to recover any funds that were transferred or paid without your permission. For more information on your rights and responsibilities for unauthorized transactions, please review your account agreement.

18. In Case of Errors or Questions about Payments, Transfers or Other Transactions Made Through the Services A. When Using the Services to Access Your Bank Account In case of questions or errors about funds transfers or bill payments made through the Services, you must do one of the following:

Call us at 1-877-383-4802.

Write to us at: Capital One, N.A. 7933 Preston Rd. Plano, TX 75024 Attn: Customer Service Center

Or log into your account at capitalone.com and click on the transaction.

With respect to any statements you receive from us that reﬂect transactions you performed while using the Services, if you think your statement is wrong or if you need more information about a transaction listed on the statement, we must hear from you no later than 60 days aer we sent the FIRST paper or online statement on which the problem or error appeared.

To report an error you must: Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 33 of 37 PageID #: 98 1. Tell us your name and Account number. 2. Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information. 3. Tell us the dollar amount of the suspected error.

If you tell us verbally, we may require that you send us your complaint or question in writing within 10 Business Days. We will determine whether an error occurred within 10 Business Days aer we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your Account within 10 Business Days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your Account. If the error occurred within 30 days aer the ﬁrst deposit to your Account was made, we may take up to 90 days to investigate your complaint or question, and we may take up to 20 Business Days to credit your Account for the amount you think is in error. We will tell you the results within three Business Days aer completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.

In our investigation of any such bill payment transactions, we will request from the Biller a refund of any interest and/or fees which you may have been wrongly assessed, provided that we will have no obligation to further pursue such request if the Biller denies such request. You will be notiﬁed of the ﬁnal resolution.

B. When Using the Services to Access Your Credit Card Account In case of questions or errors about payments or other transactions made through Online Banking, you must call us as speciﬁed on our Contact Us page. For more information on your rights and responsibilities for billing errors, please review your Billing Rights Summary, which is considered part of this Agreement.

19. Amendment We have the right to change this Agreement, including the applicable fees and charges, at any time, which changes may include the addition of new charges or terms. If we make changes, you will be notiﬁed as required by applicable law.

20. Termination You may continue to access the Services until your access is terminated by you or us. We reserve the right to terminate this Agreement and your access to the Services, in whole or in part, at any time and for any reason. For your security, if your online access has been terminated, you may be required to re- enroll.

If you close your account, you may no longer be able to access Online Banking or the Services. However, cancellation of your access to Online Banking will not terminate any Accounts you access via Online Banking. Depending on the type of transaction, termination of your access to the Services may result in cancellation of any applicable account transactions you have previously authorized. Accordingly, you should monitor your accounts aer termination to conﬁrm whether transactions have Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 34 of 37 PageID #: 99 been made. Additionally, if you do not want a transaction to take place aer your access has terminated, you should cancel the transactions prior to termination.

We reserve the right to terminate your access to the Services if you do not access the Services and there has been no activity on any of your accounts through the Services (such as an automatic bill payment) for any consecutive 120-day period, and there is no such activity pending as of the end of such 120-day period.

This Agreement will be in eﬀect from the date of your enrollment in the Services and at all times while you are using Online Banking or the Services. Termination shall not aﬀect your liability or obligations under this Agreement for any transactions initiated prior to termination.

21. Assignment We may assign this Agreement to our parent corporation or to any now-existing or future direct or indirect subsidiary of our parent corporation or another Capital One entity, or to any existing or future direct or indirect subsidiary of Capital One, or to any of our existing or future aﬃliates. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign this Agreement or your rights to use or access the Services to any other party.

22. Data Recording When you contact us, the communication or the information you provide may be recorded or otherwise retained by us or by our Service Provider. You consent to such recording or other retention. Without limiting the above, you agree that we may record the conversations our employees or agents have with you or your agents to ensure your instructions are followed and monitor quality of service and accuracy of information our employees and associates give you.

23. No Waiver We shall not be deemed to have waived any of our rights or remedies hereunder unless such waiver is in writing and signed by us. No delay or omission on our part in exercising any right or remedy shall operate as a waiver of that right or remedy or any other rights or remedies. A waiver on any particular occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.

24. Liability for Loss or Erroneous Data Without limiting any other provision hereof, you will bear the sole liability and risk of any error or loss of data, information, transactions or other losses which may be due to the failure of your Computer or third party communications providers on which you may rely. We shall have no liability to you for any damage or other loss, direct or consequential, which you may incur by reason of your use of your Computer.

25. Harm to Computer Systems/Data You agree that we shall have no liability of any kind for viruses, worms, Trojan horses, or other similar harmful components that may enter your Computer by downloading information, soware, or other materials from the Online Banking Site or any other Capital One Site. Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 35 of 37 PageID #: 100 26. Limitations of Liability and Disclaimers Except as otherwise expressly provided herein, your use of the Online Banking Services is at your own risk. None of the entities comprising Capital One, nor any of their respective oﬃcers, directors, or employees, nor any other party involved in creating, producing, or delivering the Services is liable for any direct, incidental, consequential, indirect, punitive, or other damages of any kind arising out of your access to or use of the Services, or the inability to access or use the Services, whether caused by Capital One, our Service Providers, or such other parties, online service providers, any agent or subcontractor of any of the foregoing or any other party.

Without limiting the above, you agree you are solely liable for and will indemnify Capital One where appropriate for any and all claims, losses, liability, damages, and/or demands (including, but not limited to, reasonable attorneys' fees and court costs) arising out of or in any way connected to our honoring or following any and all electronic communications for which we have attempted to verify your identity as set forth above.

WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WHILE CAPITAL ONE MAKES EVERY EFFORT TO PROVIDE ACCURATE INFORMATION IN CONNECTION WITH THE SERVICES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, CAPITAL ONE MAKES NO WARRANTY THAT (a) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, or (b) ANY INFORMATION CONTAINED ON, RESULTS THAT MAY BE OBTAINED FROM THE USE OF, OR OTHER ASPECT OF THE SERVICES WILL BE ACCURATE, CURRENT, COMPLETE OR RELIABLE.

Nothing contained in the Services is intended to provide legal, accounting, tax, or ﬁnancial advice. You should consult your own professional advisor on such matters. Information about products and services which you do not already have with Capital One is provided for informational purposes only and should not be considered as an oﬀer to make those products and services available to you.

27. Severability If any provision of this Agreement is void or unenforceable in any jurisdiction, such ineﬀectiveness or unenforceability shall not aﬀect the validity or enforceability of such provision in another jurisdiction or any other provision in that or any other jurisdiction

28. Area of Service Unless otherwise agreed by Capital One, the Services described in this Agreement are oﬀered to citizens and legal residents of the United States of America.

29. Collection Expenses If we have to ﬁle a lawsuit to collect whatever you owe us, you will pay our reasonable expenses, including attorneys' fees and court costs, unless prohibited by applicable law.

30. Governing Law Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 36 of 37 PageID #: 101 This Agreement is governed by and interpreted in accordance with all applicable federal laws and regulations and, as this Agreement applies to each individual account that you may access using the Services, by the state laws and regulations governing such account or the account agreement for such account (to the extent the state laws are not superseded by federal law). Refer to your account agreement to determine in which state your account is located.

“Remittance transfers,” as deﬁned by Regulation E, Subpart B, are governed by the laws of the U.S. and to the extent applicable, the laws of the State of New York, including New York’s version of Article 4A of the UCC.

31. Downloading and Exportation The United States Export Control laws prohibit the export of certain technical data and soware to certain territories. No contents from the Online Banking Site or any other Capital One Site may be downloaded or otherwise exported in violation of United States law.

Products About On The Go Legal Support

Investment and Insurance Products Are:

Not Insured By The FDIC

Not Insured By Any Federal Government Agency

Not A Deposit Or Other Obligation Of, Or Guaranteed By, The Bank

Subject to Investment Risks, Including Possible Loss Of The Principal Amount Invested

Banking and lending products and services are oﬀered by Capital One, N.A., and Capital One Bank (USA), N.A, Members FDIC.

Investment products are oﬀered by Capital One Investing, LLC, a registered broker-dealer and Member FINRA/SIPC. Investment advisory services are provided by Capital One Advisors, LLC, an SEC-registered Case 1:19-cv-00473 Document 1-4 Filed 01/24/19 Page 37 of 37 PageID #: 102 investment advisor. Insurance products are oﬀered through Capital One Agency, LLC.

All are subsidiaries of Capital One Financial Corporation.

Learn more about FDIC insurance changes.

EXHIBIT D Case 1:19-cv-00473 Document 1-5 Filed 01/24/19 Page 2 of 6 PageID #: 104 Essential Checking® Explanation of Various Key Services and Charges Here are some details about Essential Checking services.

Key Account Terms and Charges Monthly Service Charge $8.95 Includes free debit cards, use of Capital One® image-enabled ATMs and access to our extensive branch network. Balance Requirement to $300 or a direct • No monthly service charge when you keep a minimum daily balance of $300 Avoid Monthly Service deposit of at least or more in this account OR Charge $250 • You receive at least one direct deposit in the amount of $250 or more each statement cycle. Minimum Deposit to $50 A minimum deposit required at time of account opening. Open Account

Pays Interest No This account does not earn interest. Online Banking and Bill Pay Free There’s no charge for Online Banking or Bill Pay with this account.

ATM Charges

Capital One-Branded ATMs Free When you use a Capital One-branded ATM to complete any transaction.

Domestic Non-Capital One $2 For transactions made at non-Capital One-branded ATMs in the U.S. (plus any Bank ATMs fees the ATM owner charges). International ATMs $2 per transaction For transactions made at ATMs outside of the U.S., Puerto Rico and the U.S. plus 3% of the total Virgin Islands. This international ATM charge is in addition to fees that may be transaction amount charged by the ATM operator.

Products and services are offered by Capital One, N.A., Member FDIC. ©2017 Capital One. Capital One is a federally registered service mark. All rights reserved. If you have any questions, call us at 1-800-655-BANK (2265) or visit us at capitalone.com. For detailed account information, a list of other charges that may apply to your account, or the Funds Availability Policy, please review the Essential Checking account disclosure and Rules Governing Deposit Accounts agreement. Revised 4/2017. 1 of 5 Case 1:19-cv-00473 Document 1-5 Filed 01/24/19 Page 3 of 6 PageID #: 105 Essential Checking

Overdraft Options Option 1: Automatic ATM/everyday debit card transactions that would overdraw your account are Default Coverage generally declined. For other overdrafts, such as checks, $35 fee if transaction paid, $35 non-sufficient funds (NSF) fee if declined. Option 2: Opt-In Required ATM/everyday debit card transactions that would overdraw your account are Full Coverage considered for payment; $35 fee if transaction paid, $0 if declined. For other overdrafts, such as checks, $35 fee if transaction paid, $35 NSF fee if declined. No Coverage You can always let us know that you do not want any coverage. Transactions that will overdraw your account will generally be declined. ATM/everyday debit card transactions will not incur an NSF fee; other transactions, such as checks, ACH transfers, etc., will incur a $35 NSF fee. Overdraft Transfer Linked to Checking or No Fee If you are enrolled, a single transfer will be initiated at the end of the business Savings Account day to cover overdraft transactions.

Overdraft-Related Charges Overdraft $35 If we choose to pay a transaction (debit, ATM, check, ACH, etc.) even though it takes your account balance below zero. This fee only applies to debit and ATM transactions if you opt in.

Non-Sufficient Funds (NSF) $35 If we choose to decline a check or ACH transaction due to insufficient funds in your account. These transactions may be subject to additional charges or penalties charged by the payee.

Extended Overdraft Free Some banks charge for keeping a negative account balance for consecutive Charge days. We won’t charge you for this. Maximum Number of Four We won’t charge your account more than four fees (overdraft or NSF) in a day. Overdraft Fees Per Day

Overdraft Fee Threshold $5 We won’t charge a fee if your account is overdrawn by $5 or less at the end of the day. If your account is overdrawn by more than $5, a fee will be charged on each overdraft transaction, regardless of the amount. For example, if two transactions of $2.50 each cause an overdraft totaling $5.00, we won’t charge any overdraft fees. If three transactions of $2.50 each caused an overdraft totaling $7.50, you would pay a fee on each $2.50 charge.

Products and services are offered by Capital One, N.A., Member FDIC. ©2017 Capital One. Capital One is a federally registered service mark. All rights reserved. If you have any questions, call us at 1-800-655-BANK (2265) or visit us at capitalone.com. For detailed account information, a list of other charges that may apply to your account, or the Funds Availability Policy, please review the Essential Checking account disclosure and Rules Governing Deposit Accounts agreement. Revised 4/2017. 2 of 5 Case 1:19-cv-00473 Document 1-5 Filed 01/24/19 Page 4 of 6 PageID #: 106 Essential Checking

Ways to Avoid Overdraft Charges Use online, mobile, and telephone banking to stay on top of your account. • Set up low balance and overdraft alerts by text or email (carrier fees may apply). • Make a no-cost transfer between your Capital One Bank accounts either through Online Banking, at Capital One-branded ATMs, or at your nearest location. • Make free transfers to your account from most other banks and brokerage firms. • If you have previously opted in to have ATM withdrawals and everyday debit card transactions considered for overdraft coverage, you can opt out anytime. Or, if you prefer, you can opt out to have all types of transactions declined if they would cause an overdraft.

Products and services are offered by Capital One, N.A., Member FDIC. ©2017 Capital One. Capital One is a federally registered service mark. All rights reserved. If you have any questions, call us at 1-800-655-BANK (2265) or visit us at capitalone.com. For detailed account information, a list of other charges that may apply to your account, or the Funds Availability Policy, please review the Essential Checking account disclosure and Rules Governing Deposit Accounts agreement. Revised 4/2017. 3 of 5 Case 1:19-cv-00473 Document 1-5 Filed 01/24/19 Page 5 of 6 PageID #: 107 Essential Checking

How Deposits and Withdrawals Work

The Order in Which We’ll post items to your account using the following priority: Withdrawals and Deposits • Credits received by the close of our business day, like check or cash deposits that increase your Are Processed balance, generally post to your account before everything else. • Debits, like ATM withdrawals and debit card transactions that decrease your balance, will be divided up into categories of similar types of transactions—and we’ll use the date and time of your transactions when we have them. If we don’t have this information, we’ll post transactions based on dollar amount. Visit www.capitalone.com/bank/credits-and-debits/order for more details.

When Your Deposits Same Business Day Are Available • Electronic deposits received (i.e., direct deposit or wire transfer). (Funds Availability Policy) Next Business Day • Our general policy is to make your funds available for withdrawal on the first business day after the day we receive your deposit. • State and local government checks; cashier’s, certified or teller’s checks; and traveler’s checks if the checks are payable to you and you request that the teller use a special deposit slip when processing your deposit. Second Business Day • In some cases, we may delay your ability to withdraw funds beyond the FIRST business day. The delayed funds will generally be available by the SECOND business day after the day of deposit; however, the first $200 will be available on the FIRST business day. Longer Delays May Apply • Funds you deposit by check may be delayed for a longer period under certain circumstances. • We’ll notify you if we delay your availability to withdraw funds for any reason, and we’ll tell you when the funds will be available. Business Day and Cutoff Times (when deposits are considered received) • A “business day” is every day except Saturdays, Sundays, and federal holidays. • Deposits made at a branch on a business day will be credited that business day. Deposits made at an ATM after 9 p.m. ET/8 p.m. CT will be credited the next business day.

Related Charges Stop Payment $35 per item A request by the customer not to honor a specified check drawn on his or her account before it’s paid.

Products and services are offered by Capital One, N.A., Member FDIC. ©2017 Capital One. Capital One is a federally registered service mark. All rights reserved. If you have any questions, call us at 1-800-655-BANK (2265) or visit us at capitalone.com. For detailed account information, a list of other charges that may apply to your account, or the Funds Availability Policy, please review the Essential Checking account disclosure and Rules Governing Deposit Accounts agreement. Revised 4/2017. 4 of 5 Case 1:19-cv-00473 Document 1-5 Filed 01/24/19 Page 6 of 6 PageID #: 108 Essential Checking

Optional Services You may never need any of these services, but we want to provide you with the charges that apply just in case.

Statement Services

Statement Balancing $20 per hour We’ll balance your account for you. There’s a $10 minimum charge. Snapshot Statement $5 per statement Printing a statement of your account transactions from the last statement (without checks) date through the mid-statement date you provide. Statement Copy $5 per statement Providing additional copies of your statement that you pick up at a branch or ask us to fax or mail. Statement Copy from Free Downloading and printing statement copies from the past 18 months using Online Banking Online Banking.

Wire Transfer Services

Domestic and Foreign $15 per transfer A wire transfer that’s deposited into your account from another bank account. Incoming Domestic Outgoing $25 per transfer A wire transfer that you send from your account to another U.S. bank account. Foreign Outgoing $40 per transfer A wire transfer that you send from your account to a bank account outside of if wire is in foreign the U.S. currency $50 per transfer if wire is in U.S. dollars

Miscellaneous Orders for Checks or Varies (based on An order of personal checks, deposit slips, or other. Supplies items ordered) Cashier’s Check $10 per check A check guaranteed by the bank. Document Copies $5 per item We’ll provide paper copies of some documents that you request. Account Research $20 per hour We’ll research your account for you. There’s a $10 minimum charge. Collections (Domestic) $20 per item We facilitate a payment for a non-check item drawn on a U.S. bank, such as a draft. Collections (Foreign) $35 per item We facilitate a payment for an item that’s drawn on a non-U.S. bank.