OhioHealth Corp. v. Bishop

[Cite as OhioHealth Corp. v. Bishop, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




OHIOHEALTH CORPORATION,
                                                         CASE NO. 9-23-39
         PLAINTIFF-APPELLEE,

    v.

ROBERT E. BISHOP,                                        OPINION

         DEFENDANT-APPELLANT.



                         Appeal from Marion Municipal Court
                                Small Claims Division
                            Trial Court No. CVH 220979

                                     Judgment Affirmed

                            Date of Decision: March 11, 2024



APPEARANCES:

         Robert E. Bishop, Appellant

         Allen J. Reis for Appellee
Case No. 9-23-39



ZIMMERMAN, J.

        {¶1} Defendant-appellant, Robert E. Bishop (“Bishop”), pro se, appeals the

May 17, 2023 judgment of the Marion Municipal Court, Small Claims Division

granting summary judgment in favor of defendant-appellee, OhioHealth

Corporation (“OhioHealth”), and awarding it a judgment in the amount of

$6,066.24. We affirm.

        {¶2} On June 28, 2022, OhioHealth filed a small-claims complaint in the

Marion Municipal Court against Bishop asking for a judgment in the amount of

$6,066.24 for an “unpaid account for reasonable and necessary medical goods and

services rendered from December 8, 2020 to December 10, 2020 at [OhioHealth’s]

healthcare facility located in Marion County, Ohio * * * .” (Doc. No. 1). Bishop,

pro se, filed an answer on August 3, 2022. However, because that answer was

defective, the trial court permitted Bishop to file a second answer on August 29,

2022.

        {¶3} On December 6, 2022, Bishop filed a request in the trial court for a debt-

validation letter from OhioHealth as provided under the Fair Debt Collections

Practices Act (“FDCPA”).

        {¶4} On January 26, 2023, OhioHealth filed a motion for summary

judgment, arguing that there is no genuine issue of material fact that Bishop “is

indebted to [OhioHealth], [for] the amounts due and owing on the account in the


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sum of $6,066.24, and that [Bishop] agreed to be responsible for the balance due

pursuant to the Consent to Treat, and Financial Responsibility agreement.” (Doc.

No. 15). On March 14, 2023, Bishop filed a memorandum in opposition to

OhioHealth’s motion for summary judgment, arguing that OhioHealth violated the

FDCPA by failing to respond to his request for a debt-validation letter. OhioHealth

filed its reply to Bishop’s memorandum in opposition to its motion for summary

judgment on March 22, 2023.

      {¶5} On May 17, 2023, the trial court granted summary judgment in favor of

OhioHealth and awarded it a judgment in the amount of $6,066.24. (Doc. No. 20).

      {¶6} Bishop filed his notice of appeal on June 16, 2023. He raises one

assignment of error for our review.

                              Assignment of Error

      The trial court errored [sic] in granting summary judgment in
      favor of the Appellee despite Appellants [sic] FDCPA violation
      argument where there was no evidence that the Appellee
      responded to Appellants [sic] validation letter request as required
      by 15 U.S.C. § 1692g(a) and the request by Appellant was filed
      into the case on December 4, 2022 [sic]. As well as violating
      section 1692 (e) false and misleading for the email correspondence
      from Lori Ritter, assistant for attorney of record. Together with
      the false and misleading signature on the General consent for
      dated December 18, 2019.

      {¶7} In his assignment of error, Bishop argues that the trial court erred by

granting summary judgment in favor of OhioHealth because “there was no evidence




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that [OhioHealth] sent [Bishop] a validation letter as required by 15 U.S.C. §

1692g(a).” (Appellant’s Brief at 8).

                                Standard of Review

       {¶8} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 

 (2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47, 

, citing Costner Consulting Co. v. U.S.

Bancorp, 

, 

, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party

is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 

 (1994).

       {¶9} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 

, citing

Dresher v. Burt, 

 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” 

 citing 

.

“The nonmoving party must then rebut with specific facts showing the existence of



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a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” 

 citing Dresher at 292 and Civ.R. 56(E).


                                       Analysis

       {¶10} In this case, the trial court granted summary judgment in favor of

OhioHealth after concluding that there is no genuine issue of material fact that

OhioHealth is entitled to judgment as a matter of law as to its claim for unpaid

medical debt against Bishop. Even though Bishop generally disputes the amount of

the debt, he did not raise any specific argument relative to that dispute in his

memorandum in opposition to OhioHealth’s motion for summary judgment (or in

this appeal). See, e.g., Haddox v. Cent. Ohio Transit Auth., 10th Dist. No. 21AP-

539, 

 (noting that the nonmoving party is required “to ‘set forth

specific facts showing that there is a genuine issue for trial’”), quoting Civ.R. 56(E).

Importantly, there is no evidence in the record indicating that Bishop disputed the

debt with OhioHealth (prior to OhioHealth filing its complaint in this case) or with

his insurance company.

       {¶11} Instead, Bishop contends that OhioHealth is not entitled to collect on

the outstanding debt because it failed to comply with the FDCPA after he requested

a debt validation letter.    “‘Congress passed the FDCPA to address “what it

considered to be a widespread problem” of consumer abuse at the hands of debt

collectors.’” Taylor v. First Resolution Invest. Corp., 

, 2016-


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Case No. 9-23-39


Ohio-3444, ¶ 7, quoting Wise v. Zwicker & Assocs., P.C., 

(6th Cir.2015), quoting Frey v. Gangwish, 

 (6th Cir.1992).

“The intent of the FDCPA is to ‘“eliminate abusive debt collection practices”’ that

have contributed to personal bankruptcies, job loss, and invasions of individual

privacy.” 

 quoting Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.,

, 

 (2010), quoting 15 U.S.C. 1692(e). Generally,

“[t]he FDCPA prohibits debt collectors from employing ‘any false, deceptive, or

misleading representation or means in connection with the collection of any debt,’

including misrepresenting ‘the character, amount, or legal status of any debt.’” 

quoting 15 U.S.C. 1692e(2)(A). Specifically, “[a] debt collector may not employ

any ‘unfair or unconscionable means to collect or attempt to collect any debt,’” “and

cannot collect ‘any amount (including any interest, fee, charge, or expense

incidental to the principal obligation) unless such amount is expressly authorized by

the agreement creating the debt or permitted by law.’” 

 quoting 15 U.S.C.

1692f(1).

       {¶12} “When analyzing whether conduct giving rise to [a] claim fits within

the broad scope of the FDCPA, ‘the conduct is viewed through the eyes of the “least

sophisticated consumer.”’” 

 quoting Currier v. First Resolution Invest. Corp.,

 (6th Cir.2014), quoting Barany-Snyder v. Weiner, 

 (6th Cir.2008). “That standard, while protecting ‘the gullible and the shrewd



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alike,’ also presumes ‘a basic level of reasonableness and understanding on the part

of the debtor.’” 

 quoting 

.

       {¶13} To establish a prima facie case for a violation of the FDCPA, a party

must prove that (1) the party is a natural person who has been harmed by a violation

of the FDCPA or is a “consumer” as provided under 15 U.S.C. 1692a(3); (2) the

“debt” arises from a transaction executed “primarily for personal, family, or

household purposes”; (3) the party collecting the debt is a “debt collector” as

provided under 15 U.S.C. 1692a(6); and (4) the party collecting the debt violated a

provision of the FDCPA. 15 U.S.C. 1692a. See also 

. Critically, “[t]he

absence of any one of the four essential elements is fatal to a FDCPA” claim. 

, quoting Whittiker v. Deutsche Bank Natl. Trust Co., 

(N.D.Ohio 2009). However, the party claiming a violation of the FDCPA

       does not need to demonstrate that he or she suffered actual damages
       in order to prevail on an FDCPA claim; [rather,] the FDCPA “places
       the risk of penalties on the debt collector that engages in activities
       which are not entirely lawful, rather than exposing consumers to
       unlawful debt-collector behavior without a possibility for relief.”

Id. at ¶ 10, quoting Stratton v. Portfolio Recovery Assocs., L.L.C., 

 (6th Cir.2014).

       {¶14} Importantly, “[t]he FDCPA ‘“imposes civil liability only upon ‘debt

collectors’ as defined by the Act.”’” Truist Bank v. Eichenberger, 10th Dist.

Franklin No. 22AP-334, 

, quoting Helton v. U.S. Restoration



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& Remodeling, Inc., 10th Dist. Franklin No. 14A

,

quoting Games v. Cavazos, 

 (D.Del. 1990). “Under the

FDCPA, ‘“debt collector” means any person who uses any instrumentality of

interstate commerce or the mails in any business the principal purpose of which is

the collection of any debts, or who regularly collects or attempts to collect, directly

or indirectly, debts owed or due or asserted to be owed or due another.’” 

 quoting

15 U.S.C. 1692a(6). “First-party creditors engaged in their own debt collection are

excluded from liability under the FDCPA.” 

 citing 

.

       {¶15} However, we need not reach whether the FDCPA applies in this case.

Indeed, our review of the record reveals that Bishop did not allege his FDCPA

violation in the manner required by the Ohio Rules of Civil Procedure. Accord id.

at ¶ 50. Specifically, Bishop did not assert his FDCPA violation in his answer as a

counterclaim or as an affirmative defense. Accord Dandrew v. Silver, 8th Dist.

Cuyahoga No. 86089, 

 (concluding that Silver did not

properly raise his FDCPA violation because he “never alleged violations of the Fair

Debt Collection Act against [Dandrew] through an affirmative defense to the

complaint or as part of his counterclaim”).

       {¶16} “‘Ohio is a notice-pleading state.’” Hall v. Crawford Cty. Job &

Family Servs., 3d Dist. Crawford No. 3-21-19, 

, quoting Pugh

v. Sloan, 11th Dist. Ashtabula No. 2019-A-0031, 

. “To



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Case No. 9-23-39


properly assert a claim (or counterclaim) against a party in a civil action, Civ.R.

8(A) requires ‘a short and plain statement of the claim showing that the party is

entitled to relief.’” 

, quoting Civ.R. 8(A). “Notice pleading

under Civ.R. 8(A) and (E) requires that a claim concisely set forth only those

operative facts sufficient to give fair notice of the nature of the action.” 

 citing

Ford v. Brooks, 10th Dist. Franklin No. 11AP-664, 

, ¶ 13.

Importantly, “to constitute fair notice, the complaint (or counterclaim) must allege

sufficient underlying facts that relate to and support the alleged claim; it may not

simply state legal conclusions.” 

 citing Montgomery v. Ohio State Univ., 10th

Dist. Franklin No. 11AP-1024, 

, ¶ 20. See, e.g., Wells Fargo Bank,

N.A. v. Lee, 6th Dist. Wood No. WD-14-005, 

 (suggesting that

a violation of the FDCPA may be raised as a counterclaim).

       {¶17} Similarly, “Civ.R. 8(C) governs the pleading of affirmative defenses”

and provides in its relevant part that, “‘[i]n pleading to a preceding pleading, a party

shall set forth affirmatively * * * any * * * matter constituting an avoidance or

affirmative defense.’” 

, quoting Civ.R. 8(C). “To preserve an

affirmative defense, a party must assert it in at least one of the following ways: (1)

by motion before pleading pursuant to Civ.R. 12(B); (2) affirmatively in a

responsive pleading pursuant to Civ.R. 8(C); or (3) by amendment made under

Civ.R. 15.” 

 citing Marok v. Ohio State Univ., 10th Dist. Franklin No. 07AP-



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921, 

, citing Mills v. Whitehouse Trucking Co., 

 (1974), syllabus. “Failure to utilize any of these three methods for raising an

affirmative defense waives a party’s right to subsequently raise that defense.” 

citing Marok at ¶ 11.

       {¶18} Significantly, and critical to the facts of this case, “[a]ffirmative

defenses cannot be asserted for the first time in a memorandum opposing a summary

judgment motion.” 

 citing Marok at ¶ 11 (noting that “affirmative defenses * *

* cannot be asserted for the first time in a motion for summary judgment”), citing

Carmen v. Link, 

 (3d Dist.1997) (noting that a “motion

for summary judgment is not one of the methods recognized by the [Supreme Court

of Ohio] to assert an affirmative defense”).

       {¶19} An affirmative defense is “‘a new matter which, assuming the

complaint to be true, constitutes a defense to it.’” Eulrich v. Weaver Bros., 

, 

 (3d Dist.), quoting State ex rel. Plain

Dealer Publishing Co. v. Cleveland, 

 (1996). “Specifically,

‘[a]n affirmative defense is any defensive matter in the nature of a confession and

avoidance. It admits that the plaintiff has a claim (the ‘confession’) but asserts some

legal reason why the plaintiff cannot have any recovery on that claim (the

‘avoidance’).’” Elias v. Akron, 9th Dist. Summit No. 29107, 

, ¶ 13,

quoting The Plain Dealer Publishing Co. at 33. “The burden of proving an



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affirmative defense rests with the party asserting the defense.” 

 Our sister courts

of appeal have concluded that “the failure to comply with the FDCPA is an

affirmative defense to a claim on account.” PNC Bank v. Dunlap, 4th Dist. Ross

No. 11CA3282, 

.            See also FIA Card Servs., N.A. v.

Pfundstein, 8th Dist. Cuyahoga No. 101808, 

, ¶ 4 (suggesting that

a violation of the FDCPA is an affirmative defense).

       {¶20} In this case, Bishop’s answer asserted only (as affirmative defenses)

that OhioHealth “lacks standing and does not have authority to bring this law suit”

and that Bishop “did not receive the product or services [he] was billed for * * *

(failure of consideration).” (Doc. No. 5). Critically, Bishop neither expressly

referenced the FDCPA in his answer nor alleged a counterclaim against OhioHealth

in regards to the FDCPA. See 

. In other words, Bishop did not

raise his FDCPA-violation argument by motion before pleading as described by

Civ.R. 12(B), in a responsive pleading as described by Civ.R. 8(C), or by

amendment under Civ.R. 15. Accord Marok at ¶ 12. Instead, Bishop raised his

FDCPA-violation argument for the first time in his memorandum in opposition to

OhioHealth’s motion for summary judgment.              See 

.

Consequently, Bishop waived his FDCPA-violation argument. See 

(concluding that Weaver “waived the affirmative defense” because it failed to assert

it “in its answer,” “failed to file an amended responsive pleading[,] and improperly



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brought its defense for the first time in a motion for summary judgment”); Jim’s

Steak House, Inc. v. Cleveland, 

 (1998). Therefore, because

Bishop waived his FDCPA-violation argument, we need not address its applicability

to the facts of this case.

       {¶21} To be clear, we are not determining whether the FDCPA applies in

this case or endorsing the soundness of Bishop’s argument.          Rather, we are

concluding that Bishop waived his argument regarding the applicability of the

FDCPA in this case. Indeed, the Rules of Civil Procedure contemplate that a party

affirmatively plead his or her claim or affirmative defense to preserve their

argument. Resolving the validity of such claim or affirmative defense is the

function of the courts.

       {¶22} Consequently, since Bishop waived his FDCPA-violation argument

and did not raise any specific argument relative to his disagreement with the debt

alleged by OhioHealth in his memorandum in opposition to OhioHealth’s motion

for summary judgment (or in this appeal), we conclude that the trial court did not

err by granting summary judgment in favor of OhioHealth.

       {¶23} Bishop’s assignment of error is overruled.

       {¶24} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.




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                                                                 Judgment Affirmed

WALDICK, J., concurs.

WILLAMOWSKI, P.J., concurring separately.

       {¶25} I concur with the majority opinion that the trial court correctly granted

summary judgment. I understand that the majority is saying that they will not

consider Bishop’s argument because he waived it by failing to raise it in the trial

court. While generally, I would agree with this decision and would end all analysis

at that point, in this case, I would address the argument. The majority correctly

notes that the FDCPA does not apply to first-party creditors. OhioHealth is a first-

party creditor. Thus, I would hold that the FDCPA does not apply in this case, so

Bishop never had a claim pursuant to the FDCPA to raise to the trial court. For this

reason, I concur separately.



/hls




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