Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Shapiro, Van Ess, Phillips and Barragate, L.L.P., Ashlyn
Heider, and Phillip C. Barragate, for appellee.
F. Shaaban, for appellant.
JOURNAL ENTRY AND OPINION
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"). He raises six assignments of error for our
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
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
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. The complaint was based on
an August 2004 promissory note and mortgage between Citizens
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
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,
6} Citizens Bank responded to Richer's
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
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. Richer filed an
answer to the amended complaint with his original
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 ...