[Cite as Bank of Am., N.A. v. Goetz, 2020-Ohio-3751.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Bank of America, N.A.                                   Court of Appeals No. OT-19-027

        Appellant                                       Trial Court No. CVF 1800315

v.

Rick L. Goetz                                           DECISION AND JUDGMENT

        Appellee                                        Decided: July 17, 2020

                                                 *****

        Yale R. Levy and Sean M. Winters, for appellant.

                                                 *****
        MAYLE, J.

        {¶ 1} Appellant, Bank of America, N.A. (“BANA”) appeals the June 28, 2019

judgment of the Ottawa County Municipal Court, which found that BANA failed to prove

damages following default judgment against appellee, Rick L. Goetz. For the reasons set

forth below, we reverse, in part, and affirm, in part, the judgment of the trial court.

                                             I. Background

        {¶ 2} On May 24, 2018, BANA filed a complaint against Goetz, alleging that he

defaulted on a credit card account. BANA attached six years of monthly credit card
statements to its complaint. The final statement, dated September 22, 2015, reflects a

final balance of $4,146.47, including interest and fees.

       {¶ 3} Goetz was served with a summons and a copy of the complaint on May 30,

2018, but failed to respond. BANA filed a motion for default judgment on August 9,

2018. The trial court granted BANA’s motion on August 13, 2018, but awarded only

$236.45 in damages.

       {¶ 4} BANA appealed, arguing that Goetz’s failure to respond resulted in an

admission that he owed the full amount of damages alleged in the complaint—i.e.,

$4,146.47—and that the trial court therefore abused its discretion by failing to award the

full amount. In Bank of America, N.A. v. Goetz, 6th Dist. Ottawa No. OT-18-033, 2019-

Ohio-2042 (Goetz I), we affirmed default judgment as to Goetz’s liability, but

nonetheless remanded the matter for additional proceedings because the trial court failed

to conduct a hearing on damages.

       {¶ 5} On remand, the trial court held a damages hearing on June 24, 2019. Goetz

did not appear at the hearing. Through the testimony of its record custodian, BANA

introduced the following documents to support its claim that Goetz owes a total of

$4,146.47 in credit card debt: (1) a credit card statement issued to Goetz on February 18,

2006, which reflects a beginning balance of $0, (2) Goetz’s credit card statements dated

July 2007 through September 2015, and (3) various “Changes in Terms,” which were

mailed to Goetz and reflect amendments to the original terms and conditions of Goetz’s




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cardholder agreement. BANA did not, however, introduce the original cardholder

agreement with Goetz.

       {¶ 6} On July 3, 2019, the trial court entered its judgment. The trial court

determined that BANA failed to prove any damages. This appeal followed.

       {¶ 7} BANA has assigned the following errors for our review:

              1. The Trial Court erred when it re-visited the issue of liability

       which had already been determined by this Court.

              2. The Trial Court abused its discretion by ignoring the manifest

       weight of evidence regarding damages.

                                   II. Law and Analysis

                 A. The trial court did not revisit the issue of liability.

       {¶ 8} In its first assignment of error, BANA argues that the trial court improperly

revisited the issue of Goetz’s liability on remand, even though this court had already

“affirm[ed] the default judgment against appellee * * *” in its prior appeal. Goetz at ¶ 12.

       {¶ 9} Although “[a]verments in a pleading to which a responsive pleading is

required, other than those as to the amount of damage, are admitted when not denied in

the responsive pleading” under Civ. R. 8(D), a plaintiff must nonetheless prove damages

after securing a default judgment pursuant to Civ.R. 55(A). That rule provides:

       If, in order to enable the court to enter judgment or to carry it into effect, it

       is necessary to take an account or to determine the amount of damages or to

       establish the truth of any averment by evidence or to make an investigation




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       of any other matter, the court may conduct such hearings or order such

       references as it deems necessary and proper and shall when applicable

       accord a right of trial by jury to the parties.

“Thus, even though a party defaults and admits the allegations of the complaint, the

plaintiff must still establish his damages.” Reinbolt v. Kern, 183 Ohio App.3d 287, 2009-

Ohio-3492, 916 N.E.2d 1100, ¶ 27 (6th Dist.), citing Turner v. Progressive Ins. Co., 5th

Dist. No 2007 CA 015, 2008-Ohio-4988, ¶ 26; McIntosh v. Willis, 12th Dist. No.

CA2004-03-076, 2005-Ohio-1925. Therefore, a trial court’s inquiry into the proper

amount of damages is separate from establishing liability through the default judgment.

Id.

       {¶ 10} Here, after the damages hearing, the trial court determined that BANA

failed to present “credible evidence” of the following “facts” that the trial court deemed

necessary to establish BANA’s damages:

              1. The written contract allegedly entered into between the Plaintiff

       and Rick L. Goetz;

              2. Personal identifiers connecting the person served with the instant

       complaint to the alleged credit card contract;

              3. Any purchases made at any time with Plaintiff’s credit card by

       the individual served herein;

              4. Payments made by Plaintiff to any named entity on its billings, on

       behalf of the individual served herein;




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                 5. Any evidence of the terms and conditions of Plaintiff’s credit

       card agreement as to payment terms and conditions, interest rate(s), late

       payment or any other fees allegedly due and owing, and/or the right by

       plaintiff to unilaterally change the terms and conditions of any alleged

       agreement (ie-Exhibit B);

                 6. No evidence of any payments allegedly made by the individual

       served herein for purchases allegedly made by this individual with

       Plaintiff’s credit card; and

                 7. Any outstanding balance owed to Plaintiff by the person served

       herein.

       {¶ 11} After making these factual findings, the trial court concluded that BANA

therefore “failed to present any evidence of monetary damages owed to it by the

individual served with the complaint herein.” On appeal, BANA argues that the trial

court “exceed[ed] the bounds of its authority on remand” by making these seven factual

findings because “they all improperly re-visit Mr. Goetz’s liability on the Credit

Account.”

       {¶ 12} While we agree with BANA that Goetz’s liability has been established

through the default judgment that was affirmed on appeal, we do not believe that the trial

court improperly revisited the issue of Goetz’s liability on remand. Our review of the

trial court’s factual findings—without regard to whether those findings were made in

error— shows that each of the seven factual findings are tailored to the elements that




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BANA must establish to prove damages. Moreover, the trial court’s ultimate judgment

expressly limited its conclusion to BANA’s failure to establish “any evidence of

monetary damages owed to it[.]”

         {¶ 13} For these reasons, we find BANA’s first assignment of error not well-

taken.

     B. The trial court’s failure to award any damages was an abuse of discretion.

         {¶ 14} BANA’s second assignment of error argues that the trial court’s award of

$0 in damages was an abuse of discretion. “Because the award of damages is a

discretionary matter, we will not reverse a trial court’s decision regarding its

determination of damages absent a showing that the trial court abused its discretion.” Id.

at ¶ 38, citing Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630, 364, 665

N.E.2d 664 (1996). “An abuse of discretion occurs only if the court renders an

unreasonable, arbitrary, or unconscionable judgment.” Id., citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶ 15} A suit concerning a credit card balance constitutes an action on an account.

Capital One Bank, N.A. v. Heidebrink, 6th Dist. Ottawa No. OT-08-049, 2009-Ohio-

2931, ¶ 28. An action on an account is unique in that it is “merely a pleading device used

to consolidate several different claims one party has against another.” Id. at ¶ 29. The

amount in dispute, then, is established by showing the necessary elements of a contract

action plus records reflecting (1) a beginning balance, (2) listed items representing




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charges, or debits, or credits, and (3) a summarization or running balance which permits

the calculation of the amount claimed to be due. Id. at ¶ 30-33.

       {¶ 16} At the damages hearing, BANA’s Operations Consultant, Bruce Van

Kleeck, testified as its record custodian. Mr. Van Kleeck authenticated the monthly

credit card statements that BANA issued to Goetz. The first monthly statement, dated

February 18, 2006, reflects a beginning account balance of $0. The final statement, dated

September 22, 2015, reflects a final balance of $4,146.47. Mr. Van Kleeck also

authenticated several separate amendments to BANA’s original cardholder agreement,

dated between June 2010 and August 2015, which indicate various changes to the interest

rate on the account. Mr. Van Kleeck testified that BANA mailed such amendments to all

cardholders in the ordinary course of its business, and that the amendments were mailed

to Goetz at the same address as the monthly statements.1

       {¶ 17} On appeal, BANA argues these documents prove that it suffered $4,146.47

in damages, which represents the sum total of Goetz’s credit card charges plus interest

and fees. BANA claims that the trial court therefore abused its discretion when it found

that BANA failed to present any “credible evidence” that Goetz is contractually liable to

BANA for this credit card debt. We agree, in part.




1
 The trial court’s judgment found the witness was competent to testify as to the
authenticity of the records and accepted the records as those kept in the ordinary course
of business as described in Evid.R. 803(6).




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       {¶ 18} We agree with BANA that the trial court abused its discretion when it

concluded that BANA did not establish a contract with Goetz because it did not present

the original cardholder agreement at the hearing. When the balance of a credit card is in

dispute, submission of a signed cardholder agreement is not the only basis by which the

issuing bank is able to show an enforceable agreement. In Taylor v. First Resolution

Investment Corp., 148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, ¶ 50, citing

Bank One, Columbus, N.A. v. Palmer, 63 Ohio App.3d 491, 493, 579 N.E.2d 284 (10th

Dist.1989), the Ohio Supreme Court recognized that “[c]redit card agreements are

contracts whereby the issuance and use of a credit card creates a legally binding

agreement.” That agreement requires the cardholder to repay charges made on the

account. Bank One at 493-494. This is true even in instances where the underlying

written agreement is not introduced as evidence at trial. Id.

       {¶ 19} Here, Mr. Van Kleeck testified that BANA opened a credit account for

Goetz on March 20, 2004. He also testified that charges had been made on the account

throughout the duration of its existence. Mr. Van Kleeck also testified as to the accuracy

of the monthly statements BANA introduced and indicated that those statements were

mailed to Goetz on a monthly basis. From this testimony and the documents that were

introduced into evidence, it is clear that BANA issued a credit card and that Goetz made

charges on that card. Under Taylor, this is sufficient to show a binding agreement

between the parties that obligates Goetz to repay those charges. The trial court’s finding

to the contrary was an abuse of discretion.




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       {¶ 20} In addition, most of the other “facts” that the trial court found to be lacking

are readily established by the documents that BANA submitted at the hearing.

Specifically, the credit card statements reference Goetz as the holder of the account. The

statements also reflect purchases made on the account and payments made to the entities

identified in the statements. The statements also show payments made on the account

and the outstanding final balance on the account. Accordingly, we find that the trial court

abused its discretion when it found that BANA failed to establish these facts at the

damages hearing.

       {¶ 21} But, the trial court did not abuse its discretion when it concluded that

BANA could not recover damages for any contractual interest, fees, or penalties because

it did not produce a written contract with Goetz. We addressed a similar situation in

Capital One Bank, N.A. v. Heidebrink, 6th Dist. Ottawa No. OT-08-049, 2009-Ohio-

2931. In Heidebrink, Capital One requested the trial court enter damages in the amount

identified in the account’s final balance which included interest accrued at the contractual

rate and both transaction fee and late fees. Id. at ¶ 35. Rather than award the full amount

requested, the trial court awarded Capital One the balance on the account at the time it

began to accrue late fees, but excised those late fees from its calculation of damages. Id.

at ¶ 20. The trial court also limited the card issuer’s interest rate to the statutory rate

established in R.C. 1343.03(A). Id. Capital One appealed.

       {¶ 22} On appeal, we held that Capital One was limited to the statutory interest

rate established in R.C. 1343.03(A) absent a written contract reflecting an agreed upon




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rate that exceeds that statutory rate. Id. R.C. 1343.03(A) states “when money becomes

due and payable * * * upon any book account * * * the creditor is entitled to interest at

the rate per annum determined pursuant to section 5703.47, unless a written contract

provides a different rate of interest to the money that becomes due and payable, in which

case the creditor is entitled to interest at the rate provided in that contract.” (Emphasis

added). Capital One argued that because the statements delivered to Heidebrink included

the interest rates exceeding the statutory rate that it had satisfied the requirement that the

contractual rate be in writing. We held that the mere delivery of a monthly statement

with the new interest rate without objection from the cardholder did not show that the

cardholder assented to the contractual interest rate. Id. at ¶ 43. For this reason, we

affirmed the trial court’s use of the statutory interest rate in its damage calculations. Id.

We also held that the trial court did not abuse its discretion when it excluded fees from its

damage calculation since there was no evidence showing that Heidebrink assented to the

payment of those fees. Id. at ¶ 44.

       {¶ 23} Similarly here, although Goetz’s monthly statements reflect interest rates

ranging from 6.99 percent to 24.99 percent, as well as various transaction fees, late fees,

and penalties that were incurred due to late payments and non-payments, BANA failed to

submit a written contract to demonstrate that Goetz agreed to a contractual interest rate

exceeding the statutory rate under R.C. 1343.03(A), or that Goetz agreed to any of these

other fees and penalties. Although BANA proved that it mailed “amended” terms and

conditions to Goetz, BANA did not establish that Goetz agreed, in writing, to any terms




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and conditions beyond his agreement to repay the charges that were made on his account.

See Taylor, 148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, at ¶ 50. See also

Discover Bank C/O DFS Servs. LLC v. Lammers, 2d Dist. Greene No. 08-CA-85, 2009-

Ohio-3516, ¶ 42 (holding that the use of a credit card following the delivery of a new

agreement to which the holder did not assent is not sufficient to amend the terms of the

original agreement or establish a new contract with the cardholder). For these reasons,

trial court did not abuse its discretion when it concluded that BANA failed to establish

that it is entitled to a damages award against Goetz that includes contractual interest,

penalties, and fees.

       {¶ 24} Accordingly, we find appellant’s second assignment of error well-taken, in

part, and not well-taken, in part. The trial court abused its discretion when it concluded

that BANA failed to prove the existence of an enforceable agreement with Goetz. BANA

established an enforceable contract with Goetz through its issuance of a credit card to him

and his subsequent use of that card. But, the trial court did not abuse its discretion when

it concluded that BANA did not present any credible evidence to show that it is entitled

to contractual interest, penalties, and fees against Goetz. That is, BANA did not present a

written contract with Goetz under which Goetz agreed to pay any fees, penalties, or a

contractual interest rate that exceeds the statutory rate under R.C. 1343.03(A).

                                      III. Conclusion

       {¶ 25} In sum, we find BANA’s first assignment of error not well-taken. We find

BANA’s second assignment of error well-taken, in part, and reverse the trial court’s




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judgment to the extent that it concluded that BANA failed to establish damages related to

Goetz’s obligation to repay charges that were made on his credit account. We find

BANA’s second assignment of error not well-taken, in part, and affirm the trial court’s

judgment to the extent that the trial court concluded that BANA failed to establish a

contractual interest rate and fees as part of its claimed damages.

       {¶ 26} We remand this matter for further proceedings, and instruct the trial court

to determine a damages award consisting of the amount of credit card charges that Goetz

must repay at the statutory interest rate of R.C. 1343.03(A), and excluding any

contractual interest charges, penalties, or fees. The parties are ordered to split the costs of

this appeal pursuant to App.R. 24.

                                                                  Judgment reversed, in part,
                                                             affirmed in part, and remanded.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Christine E. Mayle, J.                                       JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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