[Cite as Citizens Bank, N.A. v. Richer, 2019-Ohio-2740.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CITIZENS BANK, N.A., : 

 Plaintiff-Appellee, : 

 No. 107744 

 v. : 

 

ANTHONY J. RICHER, JR., ET AL., : 

 

 Defendants-Appellants. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 3, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-15-850948 

 

Appearances: 

Shapiro, Van Ess, Phillips and Barragate, L.L.P., Ashlyn 

Heider, and Phillip C. Barragate, for appellee. 

Omar F. Shaaban, for appellant. 

MARY J. BOYLE, J.: 

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. 

 1 As explained in the procedural history section of this opinion, Citizens Bank, N.A. 

(“Citizens Bank”) was the original plaintiff in the lower court proceedings. In February 

2017, Citizens Bank substituted Wilmington Savings Fund Society, FSB, as Trustee for 

Stanwich Mortgage Loan Trust A (“Wilmington I”) as the plaintiff because Citizens Bank 

assigned the mortgage and promissory note, the subject of this appeal, to Wilmington I 

in December 2016. In December 2017, Wilmington I assigned the mortgage to 

Wilmington II and substituted Wilmington II as the plaintiff. Therefore, for purposes of 

clarity, Wilmington II is the plaintiff-appellee in this appeal. 
Finding no merit to his assignments of error, we affirm. 

I. Procedural History and Factual Background 

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 Bank3 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. 

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 

 2 It is not clear whether Richer is married as service was never perfected on an 

alleged spouse, an alleged spouse never filed pleadings or co-filed pleadings with Richer, 

and no evidence was submitted as to Richer’s marital status. Further, no party claiming 

to be Richer’s spouse appeals the trial court’s entry of judgment, and the instant appeal 

only concerns the judgment entered against Richer. 

3 The promissory note and mortgage was actually between Richer and Charter One 

Bank, N.A.; however, Charter One changed its name to Citizens Bank pursuant to a merger 

(according to Citizens Bank’s complaint). 
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. 

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. 

Citizens Bank responded to Richer’s counterclaims. 

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. 

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. 

In October 2016, Richer filed another motion for summary judgment 

“based on federal law,” which the trial court denied. 
In December 2016, Citizens Bank transferred the loan to Wilmington 

Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust A 

(“Wilmington I”). 

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 

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 

 4 The trial court denied Citizens Bank’s first motion for leave to file an amended 

complaint because “there [was] no proposed amended pleadings attached or evidence of 

the assignment of plaintiff’s interest.” 

5 Richer filed his answer and counterclaims on February 10, 2017, which was before 

the trial court actually allowed Citizens Bank to file an amended complaint. While his 

answer and counterclaims were prematurely filed, he refiled his answer and 

counterclaims again in April 2017. 

Additionally, the answers that Richer filed on February 10, 2017, and April 12, 

2017, maintained that he sent a letter to Citizens Bank on December 18, 2015, rescinding 

the mortgage; however, the letter attached to those answers to the amended complaint is 

dated April 16, 2016, not December 18, 2015. 
Richer’s counterclaim for unjust enrichment, but denied the motion to dismiss as to 

Richer’s remaining counterclaims. 

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. 

In December 2017, Wilmington I assigned the mortgage to 

Wilmington II. 

As a result, in February 2018, Wilmington I moved to substitute 

Wilmington II as the party plaintiff. Richer opposed the motion, but the trial court 

granted the motion in March 2018. 

In May 2018, Wilmington II, with leave of court, filed a motion for 

summary judgment instanter. Richer did not respond to the motion, and the trial 

court granted Wilmington II’s motion for summary judgment in July 2018 in part. 

The trial court denied the motion “with respect to the issue of the current balance 

due, as defendant’s affidavit raises a genuine issue as to the proper application of 

payments, and the correct balance due.” The trial court therefore ordered that a 

bench trial before the magistrate take place in regards to that issue. 

At trial, the parties entered a stipulation on the record as to the 

amount due. 

In August 2018, the magistrate subsequently released a decision, 

stating in relevant part: 
The Magistrate finds that [Richer’s] right to rescind expired three years 

after consummation of the note and mortgage, pursuant to 12 C.F.R. 

226.23(a)(3), at the latest three years after 8/19/04, on 8/19/07. The 

Magistrate finds that [Richer’s] attempt to rescind in 2015 was 

untimely. * * * 

[T]he parties stipulated to the correct amount due on the day of trial. 

Pursuant to the parties’ stipulation, the Magistrate finds that Substitute 

Plaintiff is currently owed the sum of $70,657.66 on the promissory 

note plus interest of 5.5% per year from April 1st, 2013. 

The magistrate granted Wilmington II’s motion for summary judgment both as to 

the nonanswering parties and as to Richer. The magistrate granted Wilmington II 

a judgment in the amount of $70,657.66 on the promissory note plus interest of 5.5 

percent per year from April 1, 2013 “plus any advancements for taxes, insurance, 

and other expenditures for the protection of the property.” The magistrate also 

stated that unless Richer fully paid those sums within three days of the trial court’s 

adoption of its decision, “the equity of redemption and dower of all defendants in 

and to said premises will be foreclosed and that an order of sale shall issue to the 

Sheriff of Cuyahoga County.” 

In September 2018, the trial court adopted the magistrate’s decision. 

It is from this judgment that Richer now appeals.6

 6 On September 14, 2018, a praecipe for order of sale was filed with the court for 

$600. The sale of the property was scheduled for October 29, 2018. Richer filed his 

appeal on October 2, 2018, and moved to stay execution of judgment pending appeal the 

same day. On October 29, 2018, the trial court’s docket includes an entry stating, “Order 

of Sale Returned 10/29/2018, Sold Date 10/29/2018.” On November 29, 2018, the trial 

court denied in part and granted in part Richer’s motion to stay execution. It denied his 

motion “in as much as [Richer] seeks a stay without bond.” It granted the motion to allow 

Richer to obtain a supersedeas bond in the amount of $7,772.34 and stayed the sheriff’s 

sale for 30 days. The trial court stated that Richer’s failure to file a bond by December 31, 

2018 “may result in the confirmation of the sheriff’s sale.” In January 2019, Richer moved 

for an extension of time to file the supersedeas bond, but the trial court denied Richer’s 
II. Law and Analysis 

Richer’s assignments of error concern the trial court’s order granting 

summary judgment to Wilmington II on its claims against Richer as well as on 

Richer’s counterclaims and the trial court’s order granting Wilmington I’s motion to 

substitute. We will address Richer’s assignments out of order for ease of discussion. 

A. Motion to Substitute 

In his fourth assignment of error, Richer argues that the trial court 

erred when it granted Wilmington I’s motion to substitute Wilmington II as the 

plaintiff. Specifically, he argues that “there was no proof or evidence that the 

proposed plaintiff properly and legitimately purchased the alleged debt and/or 

security interest and/or somehow merged with the then-current Plaintiff absorbing 

the current claimant’s identi[t]y, rights, and interests.” 

We review the trial court’s decision granting the motion to substitute 

for an abuse of discretion. United States Bank, N.A. v. Jeffers, 8th Dist. Cuyahoga 

No. 105002, 2017-Ohio-9153, ¶ 27. A trial court abuses its discretion when its 

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 

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

Civ.R. 25(C), which allows the substitution of parties, states in 

relevant part: 

In case of any transfer of interest, the action may be continued by or 

against the original party, unless the court upon motion directs the 

 

request in April 2019. The docket does not reflect that the sale has been confirmed and 

the proceeds distributed as of the date of oral argument on June 5, 2019. 
person to whom the interest is transferred to be substituted in the 

action of joined with the original party. 

The rule therefore “permits substitution by one who succeeds to an interest 

previously held by another.” Jeffers at ¶ 28. 

Here, Citizens Bank assigned the mortgage to Wilmington I in 

December 2016 after the complaint for foreclosure was filed. In February 2017, 

Wilmington I assigned the mortgage to Wilmington II. Both of the assignments 

were recorded with the Cuyahoga County Fiscal Office. Based on the latest 

assignment, Wilmington I moved to substitute Wilmington II. 

Based on the above, we are unable to conclude that the trial court 

abused its discretion by granting Wilmington I’s motion to substitute under Civ.R. 

25(C). 

Accordingly, Richer’s fourth assignment of error is overruled. 

B. Motion for Summary Judgment

In his first, second, third, fifth, and sixth assignments of error, Richer 

argues that the trial court erred in granting Wilmington II summary judgment on 

Wilmington II’s claims and Richer’s counterclaims. 

An appellate court reviews a trial court’s decision to grant summary 

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio336, 671 N.E.2d 241. De novo review means that this court independently 

“examine[s] the evidence to determine if as a matter of law no genuine issues exist 

for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 
1023 (8th Dist.1997), citing Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 413 

N.E.2d 1187 (1980). In other words, we review the trial court’s decision without 

according the trial court any deference. Smith v. Gold-Kaplan, 8th Dist. Cuyahoga 

No. 100015, 2014-Ohio-1424, ¶ 9, citing N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. 

of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997). 

Under Civ.R. 56(C), summary judgment is properly granted when (1) 

“there is no genuine issue as to any material fact”[;] (2) “the moving party is entitled 

to judgment as a matter of law”[;] and (3) “reasonable minds can come to but one 

conclusion, and that conclusion is adverse to the party against whom the motion for 

summary judgment is made[.]” Harless v. Willis Day Warehousing Co., 54 Ohio 

St.2d 64, 66, 375 N.E.2d 46 (1978). Because it ends litigation, courts should 

carefully award summary judgment only after resolving all doubts in favor of the 

nonmoving party and finding that “reasonable minds can reach only an adverse 

conclusion” against the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 

356, 358-359, 604 N.E.2d 138 (1992). 

“The burden of showing that no genuine issue exists as to any material 

fact falls upon the moving party. Once the moving party has met his burden, it is 

the non-moving party’s obligation to present evidence on any issue for which that 

party bears the burden of production at trial.” Robinson v. J.C. Penney Co., 8th Dist. 

Cuyahoga Nos. 62389 and 63062, 1993 Ohio App. LEXIS 2633, 14 (May 20, 1993), 

citing Harless & Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 

N.E.2d 1095 (1991). “The moving party is entitled to summary judgment if the 
nonmoving party fails to establish the existence of an element essential to that 

party’s case and on which that party will bear the burden of proof at trial.” 

Brandon/Wiant Co. v. Teamor, 125 Ohio App.3d 442, 446, 708 N.E.2d 1024 (8th 

Dist.1998), citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 

265 (1986). 

Richer’s assignments of error contesting summary judgment as to 

Wilmington II’s claims against him boil down to two main arguments: awarding 

Wilmington II summary judgment on its claims was error because (1) the record 

does not support the grant of summary judgment because there are genuine issues 

of material fact, and (2) Wilmington II failed to prove that it satisfied the conditions 

precedent under federal law. We address each of these arguments separately. 

In support of his contention that there are genuine issues of material 

fact, Richer first makes a number of arguments concerning evidentiary materials 

attached to Wilmington II’s motion for summary judgment. Wilmington II is 

correct, however, that Richer waived any argument as to those evidentiary materials 

by not moving to strike or objecting to that evidence. We have previously held that 

“[f]ailure to move to strike or otherwise object to documentary evidence submitted 

by a party in support of, or in opposition to, a motion for summary judgment waives 

any error in considering that evidence under Civ.R. 56(C).” Stegawski v. Cleveland 

Anesthesia Group, Inc., 37 Ohio App.3d 78, 83, 523 N.E.2d 902 (8th Dist.1987); see 

also Buckeye Lake Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 322 N.E.2d 629 

(1975) (“[E]rrors which arise during the course of a trial, which are not brought to 
the attention of the court by objection or otherwise, are waived and may not be 

raised upon appeal.”). Therefore, Richer has waived any error as to the evidence 

attached to Wilmington II’s motion for summary judgment by failing to move to 

strike or object to that evidence. 

Despite the fact that Richer has waived most of his arguments 

concerning the grant of summary judgment, it is necessary to address a few points. 

First, Richer argues that the affidavit of Bernice Russell was insufficient to warrant 

summary judgment. Russell’s affidavit, however, was not attached to Wilmington 

II’s motion for summary judgment. That affidavit was attached to Citizens Bank’s 

motion for summary judgment, which was filed in July 2016, and denied by the trial 

court in January 2017. 

Next, Richer argues that Wilmington II failed to present evidence that 

“any rights and/or interest of the alleged original lender were actually and eventually 

transferred to [Wilmington II] via the alleged assignment[.]” We disagree. Attached 

to Wilmington II’s motion for summary judgment was (1) a copy of the assignment 

of the mortgage and promissory note from Citizens Bank to Wilmington I recorded 

on December 12, 2016, and (2) a copy of the assignment of the mortgage and note 

from Wilmington I to Wilmington II recorded on December 19, 2017. 

Aside from the evidentiary issues that Richer raises, he also argues 

that granting Wilmington II summary judgment was error because it lacked 

standing. We review whether a party has standing de novo. Bank of Am. v. Lynch, 

8th Dist. Cuyahoga No. 100457, 2014-Ohio-3586, ¶ 31. In Lynch, we stated: 
In a foreclosure action, the current holder of the note and mortgage is 

the real party in interest. Wells Fargo Bank, N.A. v. Stovall, 8th Dist. 

Cuyahoga No. 91802, 2010-Ohio-236, ¶ 15, citing Chase Manhattan 

Mtge. Corp. v. Smith, 1st Dist. Hamilton No. C-061069, 2007-Ohio5874. A party may establish its interest in the suit, and thus have 

standing, when, at the time it files its complaint of foreclosure, it either 

(1) has had a mortgage assigned or (2) is the holder of the 

note. CitiMortgage, Inc. v. Patterson, 2012-Ohio-5894, 984 N.E.2d 

392, ¶ 21, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 

Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214. 

Id. at ¶ 32. 

As discussed above, attached to Wilmington II’s motion for summary 

judgment were two assignments: one assigning the mortgage and promissory note 

from Citizens Bank to Wilmington I in December 2016 and another assigning the 

mortgage and promissory note from Wilmington I to Wilmington II in December 

2017. Therefore, that evidence established that Wilmington II had standing. See 

Lynch at ¶ 38 (concluding that Bank of America had standing to initiate the 

foreclosure action because it attached a copy of the relevant assignments to its 

motion for summary judgment). 

Finally, Richer argues that Wilmington II “failed to prove 

compensable damages.” However, the trial court’s docket reflects that on August 13, 

2018, Wilmington II and Richer stipulated to the amount of damages Richer owed 

to Wilmington II. The magistrate’s decision stated, “Pursuant to the parties’ 

stipulation, the Magistrate finds that [Wilmington II] is currently owed the sum of 

$70,657.66 on the promissory note plus interest of 5.5% per year from April 1st, 

2013.” 
A stipulation is “‘a voluntary agreement entered into between 

opposing parties concerning the disposition of some relevant point in order to avoid 

the necessity for proof on an issue[.]’” Bodrock v. Bodrock, 8th Dist. Cuyahoga No. 

104177, 2016-Ohio-5852, ¶ 19, quoting Wilson v. Harvey, 164 Ohio App.3d 278, 

2005-Ohio-5722, 842 N.E.2d 83 (8th Dist.). “A stipulation of fact ‘removes the issue 

from the litigation’ * * * and ‘renders proof unnecessary[.]’” Id., quoting McLeod v. 

McLeod, 11th Dist. Ashtabula No. 2012-A-0030, 2013-Ohio-4546, and Rice v. Rice, 

8th Dist. Cuyahoga No. 78682, 2001 Ohio App. LEXIS 4983 (Nov. 8, 2001). “Where 

parties choose to stipulate facts in lieu of presenting evidence, they ‘waive any error 

that may have occurred with respect to the fact that the trial court decided the case 

without hearing evidence presented by the parties’ on the issue to which the parties 

stipulated.” Id., quoting Rice. Therefore, because Richer stipulated to the amount 

of damages, he has waived any error with respect to damages. 

We now turn to Richer’s argument that Wilmington II was not 

entitled to summary judgment because it failed to satisfy the conditions precedent, 

specifically HUD regulations set forth in 24 C.F.R. 203.600 et seq. However, 

“compliance with federal regulations is only required when the terms of the note 

and/or mortgage incorporate such regulations or otherwise mandate that the 

transaction is subject to them.” Bank of Am., N.A. v. Curtin, 11th Dist. Portage No. 

2013-P-0082, 2014-Ohio-5379, ¶ 16, citing U.S. Bank Natl. Assoc. v. Martz, 11th 

Dist. Portage No. 2013-P-0028, 2013-Ohio-4555, and BAC Home Loans Servicing, 

L.P. v. Taylor, 9th Dist. Summit No. 26423, 2013-Ohio-355. 
Neither the promissory note nor the mortgage incorporated the HUD 

regulations set forth in 24 C.F.R. 203.600. While the mortgage does state that it is 

“governed by federal law,” such a provision does not render the mortgage subject to 

24 C.F.R. 203.600, et seq. Curtin at ¶ 19, citing Martz. Therefore, because the 

promissory note and the mortgage were not federally insured, Wilmington II was 

not required to comply with the conditions precedent set forth in the HUD 

regulations before filing its foreclosure action. Compare United States Bank, N.A. 

v. Detweiler, 5th Dist. Stark No. 2011CA00095, 2012-Ohio-73, ¶ 25 (“Appellants’ 

loan at issue was a FHA insured loan; thus, subject to the requirements of 24 C.F.R. 

203.604, including a face-to-face interview as a condition precedent to 

foreclosure.”). 

We now turn to Richer’s fifth and sixth assignments of error 

contesting the award of summary judgment to Wilmington II on Richer’s 

counterclaims. In support, Richer argues that that award was error because (1) 

Wilmington II “improperly, incorrectly, and without right or authority refused to 

honor [Richer’s] unconditional right * * * to rescind the note and mortgage 

obligation” and (2) there were genuine issues of material fact. 

First, Richer is incorrect in arguing that he “timely sent and served” 

his notice of rescission to Wilmington II. 

15 U.S.C. 1635(a) [(the Truth in Lending Act)] grants a right of 

rescission on any mortgage loan transaction for which the borrower 

uses his or her principle dwelling as security. This right of rescission 

generally extends to midnight of the third business day following 

consummation of the transaction. The borrower may rescind the loan 
transaction entirely if the lender fails to deliver certain forms or 

disclose important terms accurately. This right of rescission expires 

three days after the loan closes or upon the sale of the secured property, 

which ever date is earlier. 

Argent Mtge. Co. v. Ciemins, 8th Dist. Cuyahoga No. 90698, 2008-Ohio-5994, ¶ 27. 

“If, however, the lender fails to provide the necessary notices of that right, the 

borrower has up to three years to rescind the transaction.” Deutsche Bank Natl. 

Trust Co. v. Forgues, 8th Dist. Cuyahoga No. 103613, 2016-Ohio-4702, ¶ 2, citing 15 

U.S.C. 1635(a). Accord Bank of N.Y. v. Jordan, 8th Dist. Cuyahoga No. 88619, 

2007-Ohio-4293, ¶ 56 (“This right of rescission expires three years after the loan 

closes or upon the sale of the secured property, whichever date is earlier.”). That 

three-year period is not subject to equitable tolling. WM Specialty Mtge. v. Mack, 

5th Dist. Licking No. 2008 CA 00125, 2009-Ohio-2590, ¶ 27, citing Beach v. Ocwen 

Fed. Bank, 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). 

In his answer to the amended complaint, Richer stated that he “sent 

a written rescind letter” to Wilmington II on December 18, 2015; the letter attached 

to Richer’s answer, however, is dated April 16, 2016. Therefore, Richer did not 

provide evidence that he attempted to rescind the note and mortgage before April 

2016. Even if we were to accept that Richer sent and Wilmington II actually received 

Richer’s notice to rescind in December 2015 rather than April 2016, Richer executed 

the promissory note and mortgage in August 2004, which is more than 11 years 

before he sent the alleged 2015 letter to rescind. 
Therefore, Richer did not timely rescind the mortgage, and the trial 

court properly granted Wilmington II summary judgment on Richer’s claim for 

rescission. Accordingly, we overrule his fifth assignment of error. 

Finally, in his sixth assignment of error, Richer argues that the trial 

court erred in granting Wilmington II summary judgment on his counterclaims 

because there were genuine issues of material fact. 

Turning to his counterclaim for violations of federal law — including 

the Fair Debt Collection Practices Act (“FDCPA”) (15 U.S.C. 1692, et seq.), 12 U.S.C. 

2605, and the Ohio Consumer Sales Protection Act (“CSPA”) (R.C. 1345.01) — 

Richer argues that Wilmington II failed to provide the required notice, lacked 

standing to bring the foreclosure action because it is a debt collector, provided 

misleading or false information, and “used unfair or deceptive practices to collect” 

on the loan. 

Richer, however, cites to no evidence in the record to support his 

claims and instead relies on definitions set forth in those laws and general, selfserving characterizations. On the other hand, the evidence supporting Wilmington 

II’s motion for summary judgment showed that Wilmington II has standing (as 

discussed above) because the mortgage was assigned to Wilmington II in December 

2017. Additionally, attached to Wilmington II’s motion were 15 pages of financial 

information related to Richer’s loan and debt; an affidavit from Darly Thammagno, 

a foreclosure specialist familiar with Richer’s loan; copies of the mortgage and 

promissory note, which were not federally insured and subject to HUD regulations; 
copies of the assignments of the mortgage and promissory note; and a letter sent to 

Richer in September 2013 notifying him that he was in default. Therefore, contrary 

to Richer’s argument, there was no evidence showing that Wilmington II violated 

the FDCPA, 12 U.S.C. 2605, or the CSPA, lacked standing, provided misleading 

information or used unfair collection practices, or failed to provide notice of default. 

Therefore, we find no genuine issues of material fact. 

Next, Richer argues there were genuine issues of material fact 

concerning his counterclaim for breach of contract. Richer, however, simply recites 

law concerning the elements for a breach-of-contract claim as well as definitions 

related to fiduciaries. He does not set forth an argument “and the reasons in support 

of the contentions, with citations to the authorities, statutes, and parts of the record 

on which [he] relies,” as the appellate rules require. App.R. 16(A)(7). Further, 

Richer presented no evidence as to how Wilmington II breached its duties under the 

promissory note and/or mortgage. Instead, the evidence showed that Richer 

breached the contract by failing to pay his monthly installments for the loan. 

Therefore, we find no genuine issues of material fact. 

Finally, Richer claims that the trial court erred in granting 

Wilmington II summary judgment for his counterclaim for fraud. However, 

Wilmington II correctly points out that Richer did not allege such a counterclaim in 

either of his answers filed with the trial court. 

Accordingly, we find there were no genuine issues of material facts 

concerning Richer’s counterclaims and overrule Richer’s sixth assignment of error. 
Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY J. BOYLE, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

LARRY A. JONES, SR., J., CONCUR