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Citizens Bank, N.A. v. Richer

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 3, 2019

CITIZENS BANK, N.A., Plaintiff-Appellee,
v.
ANTHONY J. RICHER, JR., ET AL., Defendants-Appellants.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-850948

          Shapiro, Van Ess, Phillips and Barragate, L.L.P., Ashlyn Heider, and Phillip C. Barragate, for appellee.

          Omar F. Shaaban, for appellant.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE

         {¶ 1} Defendant-appellant, Anthony J. Richer, Jr., appeals the trial court's order granting summary judgment to plaintiff-appellee, Wilmington Savings Fund Society, FSB, d.b.a. Christiana Trust, not in its Individual Capacity but solely in its Capacity as Owner Trustee of Matawin Ventures Trust Series 2017-2 ("Wilmington II").[1] He raises six assignments of error for our review:

1. The trial court erred to the prejudice of appellant by granting the appellee's motion for summary judgment even though the appellee failed to prove that it satisfied all conditions precedent mandated by the National Housing Act of 1934 (12 U.S.C. 1701 et seq.) and 42 U.S.C. 3534(a) and rescission and other rights set forth in 15 U.S.C. 1635 and the Truth and Lending Act (15 U.S.C. 1601 et seq.).
2. Reviewing appellee's motion for summary judgment de novo, the record is clear and convincing that the trial court erred to the prejudice of the appellant by granting the appellee's motion for summary judgment.
3.The trial court erred to the prejudice of appellant by [granting] the appellee's motion for summary judgment based upon the presence of genuine issues of material fact regarding the appellee-plaintiff's failure to provide sufficient evidence of entitlement to foreclosure and/or damage.
4.The trial court erred to the prejudice [of appellant] by granting the plaintiff and appellee's motion for substitution of plaintiff.
5.The trial court erred to the prejudice of appellant by [granting] the appellee's motion for summary judgment as the appellant was entitled to rescission of the alleged note and mortgage, which issue was improperly ignored by the lower court and the truth-in-lending claims presented genuine issues of material fact.
6.The trial court erred to the prejudice of the appellant by granting the appellee's motion for summary judgment dismissing the appellant's counterclaims based upon the presence of genuine issues of material facts.

         {¶ 2} Finding no merit to his assignments of error, we affirm.

         I. Procedural History and Factual Background

         {¶ 3} In September 2015, Citizens Bank filed a complaint for in rem relief, foreclosure, and other equitable relief against Richer and his spouse.[2] The complaint was based on an August 2004 promissory note and mortgage between Citizens Bank[3] and Richer, giving Richer $83, 725 to purchase the property located at 4357 Moonglow Lane in Cleveland, Ohio. The note required Richer to make monthly payments of $475.39 beginning in October 2004 and pay the mortgage back in full no later than September 1, 2034.

         {¶ 4} According to Citizens Bank, Richer stopped making the required monthly payments in March 2013 and failed to make any payment since that time, and in September 2013, Citizens Bank sent Richer a letter notifying him that he was in default. In its complaint, Citizens Bank alleged that Richer was in default under the promissory note due to the nonpayment and broke the conditions of the mortgage. Citizens Bank sought "in rem relief against the subject real estate for $70, 657.66 with interest at the rate of 6.5% per annum from March 1, 2013, plus late charges applicable to the terms of the Promissory Note and Mortgage plus costs and advances" as well as foreclosure and an order allowing it access to inspect the interior and exterior of the property.

         {¶ 5} In January 2016, Richer filed an answer, in which he claimed that he sent Citizens Bank a letter rescinding the mortgage on December 18, 2015. Richer also filed counterclaims against Citizens Bank for breach of contract, unjust enrichment, declaratory judgment, and violations of federal and state protections and laws, including violations of R.C. 1322.07, the federal Fair Debt Collection Practices Act (15 U.S.C. 1692), Ohio's Consumer Sales Practices Act, 15 U.S.C. 1641 and 24 C.F.R. 3500.21. Richer sought declaratory judgment, rescission of the mortgage and promissory note, termination of Citizens Bank's security interest in the property, and other equitable relief, including reimbursement.

         {¶ 6} Citizens Bank responded to Richer's counterclaims.

         {¶ 7} In February 2016, Richer filed a partial motion for summary judgment, seeking summary judgment on all of Citizens Bank's claims and summary judgment on his counterclaim for declaratory judgment. The trial court denied the motion.

         {¶ 8} In July 2016, Citizens Bank moved for default judgment, but the trial court denied its motion. Citizens Bank then filed a motion for summary judgment, which Richer opposed, and the trial court also denied.

         {¶ 9} In October 2016, Richer filed another motion for summary judgment "based on federal law," which the trial court denied.

         {¶ 10} In December 2016, Citizens Bank transferred the loan to Wilmington Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust A ("Wilmington I").

         {¶ 11} As a result, in February 2017, Citizens Bank sought leave to file an amended complaint because "the mortgage loan which is the subject of the instant action has been service transferred," and it needed to substitute Wilmington I as the plaintiff. The trial court granted Citizens Bank's motion, and Wilmington I filed its amended complaint on February 14, 2017.[4] Richer filed an answer to the amended complaint with his original counterclaims.[5]

         {¶ 12} In February 2017, Wilmington I filed a motion to dismiss Richer's counterclaims, claiming that Richer could not lodge counterclaims against it because Richer failed to satisfy the condition precedent set forth in the mortgage, which required written notice of an alleged breach and because Richer failed to state a claim for any of his counterclaims. Richer opposed the motion. The trial court granted and denied the motion in part. Specifically, the trial court dismissed Richer's counterclaim for unjust enrichment, but denied the motion to dismiss as to Richer's remaining counterclaims.

         {¶ 13} In April 2017, Richer moved the trial court for dismissal of Wilmington I's claims or, alternatively, a judgment on the pleadings, which the trial court denied.

         {¶ 14} In December 2017, Wilmington I assigned the mortgage to Wilmington II.

         {¶ 15} As a result, in February 2018, Wilmington I moved to substitute Wilmington II as the party plaintiff. Richer opposed the motion, but the ...


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