WARNING: This Loan is not meant to help you with your long-term credit needs. Repeated or frequent use can create serious financial problems for you. We encourage you to think about the costs and benefits of all alternatives before borrowing.
PROMISE TO PAY:
You promise to pay to the order of Lender the principal sum plus interest from the Effective Date of this Loan at the rate of 299.96%-516.00% per year until this Loan is repaid in full. You agree to make payments on the dates and in the amounts shown in the Payment Schedule above. You also promise to pay to Lender all other fees and charges provided for under this Agreement.
Interest will accrue daily on the unpaid principal balance of this Loan, beginning on the Effective Date, until you pay in full. We calculate interest based on a 365-day year. In calculating your payments, we have assumed you will make each payment on the day and in the amount due. If any payment is received after the Payment Due Date, you must pay any additional interest that accrues after the Payment Due Date. If any payment is made before a Payment Due Date, the interest due on the scheduled payment will be reduced, and you will owe less interest. The amount of any decrease or increase in interest due will affect the amount of your final payment. If the amount of any payment is not enough to pay the interest due, the unpaid interest will be paid from your next payment(s), if any, and will not be added to the principal balance. Time is of the essence, which means that there are no grace periods for when payments must be made. There is no separate late charge if you fail to make payments in accordance with the Payment Schedule. However, if you do not make each payment in full on the Payment Due Dates as agreed, we may continue to charge interest on past due amounts at the interest rate set forth in the "Promise to Pay" section above. The interest rate and other charges under this Agreement for this Loan will never exceed the highest rate or charge allowed by the laws of the state in which this Loan was originated. If the amount collected is found to exceed the highest rate or charge allowed, We will refund an amount necessary to comply with law. Interest will continue to accrue on past due amounts as permitted by the laws of the state in which this Loan was originated.
We will apply your payments in the following order: (1) to any fees due, (2) to accrued but unpaid interest, and (3) to principal amounts outstanding. Each scheduled payment, plus any fees due to us (if applicable), will be debited from your Bank Account on each Payment Due Date. See the ACH Authorization above for further information.
You may prepay in whole or in part at any time without penalty. If you prepay in part, you must still make each later payment according to the Payment Schedule above until this Loan is paid in full. Any amounts you prepay will not continue to accrue interest.
RIGHT OF RESCISSION:
You may rescind or cancel this Loan if you do so on or before 5:00 p.m., Central Time, on the fifth business day after the Origination Date (the "Rescission Deadline"). To cancel,
call us at (800) 516-7840 to tell us you want to rescind or cancel this Loan and provide us written notice of rescission as directed by our customer service representatives.
Regarding your ACH authorization
If we timely receive your written notice of rescission on or before the Rescission Deadline but before the Loan proceeds have been credited to your Bank Account, we will not deposit your Loan proceeds to your Bank Account and both ours and your obligations under this Agreement will be rescinded. If we timely receive your written notice of rescission on or before the Rescission Deadline but after the Loan proceeds have been credited to your Bank Account, we will debit your Bank Account for the principal amount owing under this Agreement. If we receive payment of the principal amount via the debit, ours and your obligations under this Agreement will be rescinded. If we do not receive payment of the principal amount via the debit, then the Agreement will remain in full force and effect until all amounts owed under this Agreement are repaid in full, including any interest and fees.
REMOTELY CREATED CHECK AUTHORIZATION
If we are unable to process an ACH debit to your Bank Account or we do not receive a payment by the Payment Due Date, and provided that you have not revoked your ACH Authorization, you authorize us and our agents, representatives, successors and assigns to create and submit remotely-created checks for payment to us in the amount of each payment owing under this Agreement, including any returned payment charges or other amounts owing to us upon acceleration of this Loan as a result of your Default. Your signature below constitutes your authorization to us to authenticate remotely created checks, which are also known as demand drafts, telechecks, preauthorized drafts, or paper drafts. If you believe we charged your Bank Account in a manner not contemplated by this authorization, then please contact us. You authorize us to vary the amount of any preauthorized payment by remotely created check as needed to repay installments and any other payments due under this Agreement.
RETURNED PAYMENT FEES; DEBTOR BANK CHARGES
If any payment made by you on this Loan is not honored or cannot be processed for any reason, including not enough money in your Bank Account, you agree to pay us a fee of $20.00. If you have elected to repay this Loan via ACH debits to your Bank Account, for each returned payment, you authorize us and our agents and representatives to make a one-time withdrawal from your Bank Account to collect this fee. Your financial institution may also charge a fee if your Bank Account becomes overdrawn or if a payment is attempted against your Bank Account that would cause it to become overdrawn. You will not hold us or our agents, representatives, successors or assigns responsible for any such fee you must pay.
No security interest is taken or given in connection with this Loan.
Subject to the laws of the state in which this Loan was originated and our credit policies, we will determine, in our sole discretion, whether your Loan may be refinanced.
You will have broken your promise you made to us in this Agreement (each, a "Default") if: (a) you provide false or misleading information about yourself, your employment or your financial condition
prior to entering into this Agreement, (b) you fail to make a payment by the due date or if your payment is returned to us for any reason, or (c) you file bankruptcy or become a debtor under the Federal Bankruptcy Laws.
CONSEQUENCES OF DEFAULT
Should you not do the things you agreed to under this Agreement, we may, at our option, do any one or more of the following things: (a) require you to immediately pay us everything you owe us under this Agreement; (b) if you have elected to repay this Loan via ACH debits to your Bank Account, withdraw money from your Bank Account that was not available when we tried to withdraw it at an earlier time; and (c) pursue all legally available means under the laws of the state in which this Loan was originated to collect what you owe us, subject to notice of default and right to cure as expressly required by the laws of the state in which this Loan was originated. Except as expressly prohibited by the laws of the state in which this Loan was originated, by signing this Agreement you waive notice of default, dishonor, demand for payment, protest, presentment, and any other notices. Amounts you owe Lender includes the unpaid principal balance of this Loan, all unpaid accrued fees and interest (including unpaid interest owing on past due amounts), and any costs and fees Lender incurs in connection with this Agreement. In the event we declare all amounts owed under this Agreement immediately due because you did not pay us, then, if you have elected to repay this Loan via ACH debits to your Bank Account, you further authorize us and our agents and representatives to withdraw money from your Bank Account in the full amount due under this Agreement. By choosing to exercise any one of more of these remedies, we do not give up our right to use another way to collect the money you owe us later. We may decide not to use any of the ways described above to get back the money that you owe us. If so, we do not give up our right to consider what you said you would do to make payment(s) and, if you fail to make those payment(s), we will consider you to be in Default, subject to the laws of the state in which this Loan was originated.
CHANGE OF PRIMARY RESIDENCE
You agree to notify us of any change in your primary residence as soon as possible, but no later than five (5) days after any change. You agree that the address provided on this Agreement will govern this Agreement until you have met all obligations under this Agreement and that any subsequent change in your address will not affect the terms or enforceability of this Agreement.
CORRESPONDENCE WITH LENDER
General correspondence with us concerning this Loan, this Agreement or your relationship with us must be sent to us at the following address: Essential Lending, Inc., 3500 Hulen Street, Suite 201, Fort Worth, TX 76107.
Unavoidable delays as a result of inadvertent processing errors and/or "acts of God" may extend the time for the deposit of Loan proceeds and the processing of your payments.
TRANSFER OF RIGHTS/HYPOTHECATION
This instrument is non-negotiable in form but may be pledged as collateral security. If so pledged, any payment made to the payee, either of principal or of interest, upon the debt evidenced by this obligation, will be considered and construed as a payment on this instrument, the same as though it were still in the possession and under the control of the payee named herein; and the pledgee holding this instrument as collateral security hereby makes said payee its agent to accept and receive payments hereon, either of principal or of interest.
SUCCESSORS AND ASSIGNS
This Agreement is binding upon your heirs and personal representatives in probate and upon anyone to whom you assign your assets or who succeeds you in any other way. You agree that Lender may assign or transfer this Agreement and any of Lender's rights hereunder at any time without prior notice to you, except as required by applicable law.
SERVICING COMMUNICATIONS AND COMMUNICATIONS AFTER DEFAULT
You authorize us and our authorized representatives to contact you according to your consent provided in your application or according to your account preferences, as modified by you after submitting your application. This may include (i) calling you during reasonable hours at any of the phone numbers listed on your most recent application (a) prior to each Payment Due Date to remind you of the payment due and (b) and for other matters related to your account, (ii) contacting you by text message or other wireless communication method on the mobile phone number listed on your application, (iii) leaving a message with a person or a voice mail service, and (iv) contacting you using autodialers or pre-recorded messages, including calls to your mobile phone
GOVERNING LAW; SEVERABILITY; INTERSTATE COMMERCE
This Agreement is governed by the laws of the State of Utah, except that the Waiver of Jury Trial and Arbitration Agreement is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-9. If any provision of this Agreement is held unenforceable, including any provision of the Waiver of Jury Trial Arbitration Agreement, the remainder of this Agreement will remain in full force and effect. You and we agree that the transaction represented by this Agreement involves interstate commerce for all purposes.
WAIVER OF JURY TRIAL AND ARBITRATION AGREEMENT
PLEASE READ THIS WAIVER OF JURY TRIAL AND ARBITRATION AGREEMENT CAREFULLY. UNLESS YOU EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION AS DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY TRIAL, TO ENGAGE IN DISCOVERY (EXCEPT AS PROVIDED FOR IN THE ARBITRATION RULES), AND TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS OR IN ANY CONSOLIDATED ARBITRATION PROCEEDING OR AS A PRIVATE ATTORNEY GENERAL. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE IN ARBITRATION.
AGREEMENT TO ARBITRATE
You and we (defined below) agree that any Dispute (defined below) will be resolved by Arbitration. This agreement to arbitrate is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the substantive law of the State of Utah.
WHAT ARBITRATION IS
"Arbitration" is having an independent third party resolve a Dispute. A "Dispute" is any claim or controversy of any kind between you and us. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all federal or state claims or demands
(whether past, present, or future), based on any legal or equitable theory and regardless of the type of relief sought (i.e., money, injunctive relief, or declaratory relief). A Dispute includes any issue concerning the validity, enforceability, or scope of this arbitration agreement.
For purposes of this arbitration agreement, (a) the terms "you" and "your" include any co-signer and also your heirs, guardian, personal representative, or trustee in bankruptcy, and (b) the terms "we," "our," and "us" mean Lender, Lender’s affiliated companies, Lender’s servicing and collection representatives and agents, and each of their respective agents, representatives, employees, officers, directors, members, managers, attorneys, successors, predecessors, and assigns.
HOW ARBITRATION WORKS
If a Dispute arises, the party asserting the claim or demand must initiate arbitration, provided you or we may first try to resolve the matter informally or through customary business methods, including collection activity. The party requesting arbitration must choose either of the following arbitration firms for initiating and pursuing arbitration the American Arbitration Association ("AAA") or JAMS, The Resolution Experts ("JAMS"). If you claim you have a Dispute with us, but do not initiate arbitration or select an arbitration firm, we may do so. You may obtain copies of the current rules of each of the arbitration firms and forms and instructions for initiating arbitration by contacting them as follows:
American Arbitration Association 335 Madison Avenue, Floor 10 New York, NY 10017-4605 Website: http//www.adr.org/ Telephone: (800) 778-7879 JAMS, The Resolution Experts 1920 Main Street, Suite 300 Irvine, CA 92614 Website http://www.jamsadr.com/ Telephone: (949) 224-1810 or (800) 352-5267
To the extent the arbitration firm’s rules or procedures are contrary to the terms of this arbitration agreement, the terms of this arbitration agreement will apply.
WHAT ARBITRATION COSTS
No matter which party initiates the arbitration, we will advance or reimburse filing fees and other costs or fees of arbitration, provided each party will be initially responsible for its own attorneys' fees and related costs. Unless prohibited by law, the arbitrator may award fees, costs, and reasonable attorneys' fees to the party who substantially prevails in the arbitration.
LOCATION OF ARBITRATION
Unless you and we agree to a different location, the arbitration will be conducted within 10 miles of your then current mailing address.
WAIVER OF RIGHTS
You are waiving your right to a jury trial, to have a court decide your Dispute, to participate in a class action lawsuit, and to certain discovery and other procedures that are available in a lawsuit. You and we agree that the arbitrator has no authority to conduct class-wide arbitration proceedings and is only authorized to resolve the individual Disputes between you and us. The validity, effect, and enforceability of this waiver of class action lawsuit
and class-wide arbitration, if challenged, are to be determined solely by a court of competent jurisdiction and not by the AAA, JAMS, or an arbitrator. If such court refuses to enforce the waiver of class-wide arbitration, the Dispute will proceed in court and be decided by a judge, sitting without a jury, according to applicable court rules and procedures, and not as a class action lawsuit.
APPLICABLE LAW AND REVIEW OF ARBITRATOR'S AWARD
The arbitrator will apply applicable federal and Utah substantive law and the terms of this Agreement. The arbitrator must apply the terms of this arbitration agreement, including without limitation the waiver of class-wide arbitration. The arbitrator will make written findings and the arbitrator’s award may be filed with any court having jurisdiction. The arbitration award will be supported by substantial evidence and must be consistent with this Agreement and with applicable law, and if it is not, it may be set aside by a court. The parties will have, in addition to the grounds referred to in the Federal Arbitration Act for vacating, modifying, or correcting an award, the right to judicial review of (a) whether the findings of fact rendered by the arbitrator are supported by substantial evidence and (b) whether the conclusions of law are erroneous under the substantive law of Utah and applicable federal law. Judgment confirming an award in such a proceeding may be entered only if a court determines that the award is supported by substantial evidence and is not based on legal error under the substantive law of Utah and applicable federal law.
SURVIVAL This arbitration provision will survive
(1) cancellation, payment, charge-off, or assignment of this Agreement; (2) the bankruptcy of any party; and (3) any transfer, sale, or assignment of this Agreement, or any amounts owed under this Agreement, to any other person or entity.
RIGHT TO OPT-OUT
You may opt-out of this Waiver of Jury Trial and Arbitration Agreement without affecting your application or loan by notifying us in writing sent to the following address within 60 days from the Origination Date of this Agreement: Essential Lending, Inc., 3500 Hulen Street, Suite 201, Fort Worth, TX 76107. PLEASE TAKE THE TIME TO CAREFULLY REVIEW THIS AGREEMENT, THE DISCLOSURES AND THE WAIVER OF JURY TRIAL AND ARBITRATION AGREEMENT. IF YOU HAVE QUESTIONS, PLEASE CONTACT CUSTOMER SERVICE AT (800) 516-7840. This Agreement includes a Waiver of Jury Trial and Arbitration Agreement that may be enforced by you and us. By signing this Agreement, you agree that this Agreement was filled in before you signed and that you have received a completed copy of it. You further agree that you have read and understand all of the terms of this Agreement, including the part entitled "Waiver of Jury Trial and Arbitration Agreement."
By electronically signing this Agreement