Handwork, J.
This case is before the court on appeal from a judgment of the Wood County Court of Common Pleas.
I
The essential facts may be summarized as follows. In July 1975 and May 1976, two promissory notes in the respective principal amounts of $650,000 and $75,000 were executed by Perry’s Landing, Inc., an Ohio corporation and defendant-appellee herein. The notes were signed on behalf of appellee by its. president, William R. Wumer. Appellee Perry’s Landing was formed for the purpose of developing and managing a retail shopping center which was constructed on certain real estate located in Per-rysburg, Ohio. Appellee leased space within the shopping center to various retail merchants. Plaintiff-appellant, First Federal Savings & Loan Association of Toledo (hereinafter “First Federal” or “appellant”), was the lending institution involved in these transactions. The loans obtained from First Federal, for which the promissory notes were executed, were to be repaid from rental income accruing from the long-term commercial leases. Interest on each principal loan was set at ten percent per annum and each note was accompanied and secured by a mortgage covering said commercial property.
Paragraph 8 of each mortgage, which is commonly referred to as a “due-on-sale clause,” provides as follows:
“If
there shall be
any change in the ownership of the premises
covered by this mortgage,
made without the consent of the Grantee
[appellant First Federal], the entire principal and interest accrued thereon shall become due and payable immediately at the election of the Grantee.” (Emphasis added.)
Appellee also obtained loans from two other lending institutions, First Federal Savings & Loan Association of Wood County and Sylvania Savings Bank. A mortgage agreement was executed in conjunction with each loan to secure its repayment.
In 1980, Wumer apparently decided that he no longer wished to manage commercial real estate. He began looking for a buyer who had experience in managing such property and who would be willing to make a commitment to purchase it within a specific time period.
In early January 1981, Wumer, through his attorneys, contacted John N. Waldvogel, who is an executive vice-president for First Federal. It was indicated to Waldvogel that Perry’s Landing intended to sell the secured commercial property to Perry’s Landing of Michigan, a Michigan general partnership unrelated to Wumer’s corporation of the same name. The conversation between Wumer’s attorneys and Waldvogel was apparently conducted over the telephone. The trial court’s finding with respect to this conversation is as follows:
“Mr. Waldvogel explained that [appellant] First Federal had never accelerated a mortgage based solely on the due-on-sale clause, but that that practice was currently under review by * * * [appellant’s] Board of Directors. Though * * * [appellant] had never accelerated a mortgage under these circumstances before, * * * [it] had also made it a practice to decline any waiver request concerning due-on-sale clauses.”
Appellee thereafter obtained from Sylvania Savings Bank and First Federal Savings & Loan Association of Wood County written waivers of their rights to enforce the due-on-sale clauses contained in their respective mortgage agreements. On January 12, 1981, Wumer’s attorneys hand-delivered a letter to Waldvogel which stated, in pertinent part:
“This is to advise you that Borrower [appellee Perry’s Landing] will enter into a land installment contract on January 12, 1981, for the sale of the mortgaged premises and more to a Michigan general
partnership. Counsel for the land contract vendee requested that we give you notice of the pending transaction. Mr. John N. Waldvogel, Executive Vice President, has informed us that the present attitude of First Federal has been not to accelerate a loan under the * * * [due-on-sale clause] in instances involving a land installment contract, and we are proceeding with the transaction on the basis of this conversation.”
On the same day that Waldvogel received the foregoing letter, January 12, appellee executed a land installment contract with Perry’s Landing of Michigan for conveyance of the mortgaged commercial property. The contract was subsequently recorded on January 13, 1981. The trial court appears to have concluded, implicitly, that the execution of the land contract constituted a “change in the ownership of the premises” so as to trigger the due-on-sale clause in Paragraph 8 of the First Federal-Perry’s Landing mortgage agreements. If in fact the trial court so concluded, it was correct.
Included in Section 7 of the land installment contract, entitled “Mortgage and Pending Orders of a Public Agency,” was the following provision:
“* * * In the event that First Federal Savings & Loan Association of Toledo should ever obtain a foreclosure judgment against Seller [appellee Perry’s Landing] under either of its mortgages, Buyer [Perry’s Landing of Michigan] may rescind this contract and recover the Three Hundred Thousand and 00/100 Dollar ($300,000.00) payment hereunder.”
Some two weeks after Waldvogel received appellee’s letter, First Federal’s attorney, in response, sent Wumer’s attorneys a letter (dated January 26,1981), which states, in pertinent part:
“Because of the transfer of ownership, we are hereby requesting a meeting with you and the land contract vendees [Perry’s Landing of Michigan].
The 'purpose of the meeting will be to discuss an increase in the
[interest]
rate on these two mortgages.
As I am sure you and your clients are aware, at this period of high interest rates, when we are paying in excess of 14% to our depositors, we cannot afford, for a very long period, to have our money outstanding at 10V2%.
“In your letter [of January 12, 1981] you refer to a conversation with Mr. Waldvogel regarding First Federal’s policy on invoking the provisions of Paragraph 8 of our mortgage. However, let me advise you that Mr. Waldvogel
distinctly remembers telling you that the past policy was being discussed and considered and that he could give you no assurance that it would not change.” (Emphasis added.)
Upon receiving this letter, appellee’s attorneys telephoned First Federal’s attorney, Fred E. Henning, and stated that there was nothing to discuss or renegotiate with respect to the interest rate on the promissory notes. They consequently refused to meet with Henning. Between January 12, the date the land contract was executed, and April 2, the date appellant filed its complaint in this case, appellee continued to make monthly mortgage payments and First Federal continued to accept these payments. The trial court found that “up to the present time, * * * [appellee] has remained solvent and has at no time been in default of its obligation to * * * [First Federal].” The record indicates that First Federal accepted mortgage payments tendered on January 15, February 17, and March 16, 1981. First Federal concedes that ap-pellee has never breached any other condition of the mortgage agreements. Nor has First Federal suggested that the property securing its loans is in any way impaired. As noted, First Federal filed its foreclosure suit on April 2,1981. On April 10, it refused to accept appellee’s mortgage payment. Appellee has tendered payment each month since this initial refusal, but First Federal continues to refuse all payments to date. Appellee subsequently filed an answer and a counterclaim which alleged wrongful foreclosure and prayed for attorney fees and costs.
On January 2,1982, both parties filed motions for summary judgment, accompanied by memoranda in support thereof. On March 10, 1982, the trial court granted summary judgment in favor of appellee Perry’s Landing and dismissed First Federal’s complaint. First Federal thereafter appealed, but because the trial court failed to adjudicate • appellee’s counterclaim, we found that Civ. R. 54(B) had not been complied with and dismissed the appeal for lack of a final, appealable order. On remand, each party filed motions for summary judgment on the counterclaim. In addition, First Federal filed a motion for reconsideration. On January 6, 1983, the trial court denied appellee’s motion for summary judgment, granted summary judgment in favor of First Federal on the counterclaim and dismissed the same. The court further denied First Federal’s motion for reconsideration. From said judgment, appellant brings this appeal.
Appellant sets forth two assignments of error, which are as follows:
“FIRST: The Trial Court erred in granting Defendant-Appellee’s Motion for Summary Judgment and applying the defense of equitable estoppel in the case at bar.
“SECOND: The Trial Court’s judgment was against the manifest weight of the evidence and is contrary to law.”
Appellee, as cross-appellant, has appealed from the trial court’s denial of its counterclaim, and sets forth the following assignment of error:
“For its assignment of error, Perry’s Landing states that the trial court’s denial of its counterclaim is contrary to law.”
II
In its arguments before the trial court, First Federal urged the court to find that the United States Supreme Court’s recent decision in
Fidelity Federal S. & L. Assn.
v.
De La Cuesta
(1982), 458 U.S. 141, was retroactively applicable to mortgage agreements involving federal savings and loan associations entered into prior to the date of that decision. In this appeal, First Federal does not pursue the retroactivity argument as such, but contends instead that the decision at least gives federal savings and loan associations the unfettered right to exercise and enforce due-on-sale provi
sions contained in mortgage agreements. Inasmuch as appellant has intimated that a federal issue is involved, we will briefly address that suggestion.
In
Fidelity Federal S. & L. Assn.
v.
De La Cuesta, supra,
the United States Supreme Court held that federal regulations, promulgated by the Federal Home Loan Bank Board (the “board”), which have the force of federal law and which permit federally chartered savings and loan associations to exercise their rights under due-on-sale clauses, preempt contrary state law where it limits or prohibits the enforcement of these clauses. This is the bare holding of the case. The court did not determine, however, whether the board’s regulations “occupy the field of
due-on-sale law
or the
entire
field of federal savings and loan regulation.” (Emphasis added.)
Fidelity Federal S. & L. Assn.
v.
De La Cuesta, supra,
at 159, fn. 14.
More importantly, the Supreme Court found that there was an “actual conflict” between the state law doctrine at issue — California’s
Wellenkamp
doctrine (see
Wellenkamp
v.
Bank of America
[1978], 21 Cal. 3d 943, 148 Cal. Rptr. 379, 582 P. 2d 970) — and the regulations issued by the board, in particular, Section 545.8-3(f), Title 12, C.F.R. (1982). This regulation became effective July 31,1976, and provides, in pertinent part:
“* * * [A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as * * * [otherwise] provided in * * * this section * * *, exercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.”
California’s
Wellenkamp
doctrine was designed to circumvent unreasonable restraints on the free alienability of mortgaged property. It prohibited a lending institution from enforcing a due-on-sale clause “unless the lender * * * [could first] demonstrate that enforcement * * * [was] reasonably necessary to protect against impairment to its security or the risk of default.”
Wellenkamp
v.
Bank of America, supra,
21 Cal. 3d at 953, 148 Cal. Rptr. at 385-386, 582 P. 2d at 977. The Supreme Court concluded that the federal regulations were
“meant to preempt conflicting state limitations
on the due-on-sale practices of federal savings and loans, and that * * * [California’s
Wellenkamp
doctrine]
create[d] such a conflict.”
(Emphasis added.)
Fidelity Federal S. & L. Assn.
v.
De La Cuesta, supra,
at 159.
Ohio has no analogous
Wellenkamp
doctrine.
In fact, due-on-sale clauses
were held valid and enforceable without restriction over ten years ago by this court in
People’s Sav. Assn.
v.
Standard Industries
(1970), 22 Ohio App. 2d 35 [51 O.O.2d 43]. In
Great Northern Savings Co.
v.
Ingarra
(1981), 66 Ohio St. 2d 503, 507 [20 O.O.3d 415], the Ohio Supreme Court, at least implicitly, recognized the basic validity and enforceability of such clauses. The Supreme Court’s application of the long-recognized, well-settled principle of equitable estoppel in the
Ingarra
case is not inconsistent with the general enforceability of due-on-sale clauses. Nor can equitable estoppel, as applied in that case, be mechanically labeled “a contrary state law doctrine” within the meaning of
Fidelity Federal S. & L. Assn.
v.
De La Cuesta.
Accord
First Federal S. & L. Assn.
v.
Lockwood
(Fla. App. 1980), 385 So. 2d 156, 160 (“The true issue before us is * * * whether the due-on-sale clause must be automatically enforced by a state, court without regard to traditional principles of equity * * *. We answer * * * [that] question by stating that a plaintiff who initiates a [foreclosure] suit in equity must be subject to
all
of the applicable consequences of that action and not merely those to which he chooses to submit.”)
In short, since the Ohio decisions involving due-on-sale clauses do not in any way conflict with the federal regulations discussed in the
De La Cuesta
opinion, there is nothing for those regulations to preempt. See
Fidelity Federal S. & L. Assn.
v.
De La Cuesta, supra,
at 154-159. Regarding the issue of the retroactive application of federal regulations, we find no indication whatsoever in the
De La Cuesta
decision that the United States Supreme Court intended its holding to apply to mortgage agreements executed prior to the effective date of the pertinent regulations.
In the present case, the mortgage agreements were executed in July 1975 and May 1976. Section 545.8-3(f), Title 12, C.F.R. became effective, as noted, on July 31, 1976. The Supreme Court observed that the decision in
Wellenkamp
v.
Bank of America
was handed down in 1978, two years
after
the regulation was in effect. The court found that the California doctrine was “pre-empted by a
previously
promulgated federal regulation.” (Emphasis added.)
Fidelity Federal S. & L. Assn.
v.
De La Cuesta, supra,
at 171, fn. 24. The court further observed that before 1978, California, like Ohio, “permitted the unrestricted exercise of due-on-sale clauses in cases of outright transfers of the * * * [secured property].”
Id.
In light of this, the
De La Cuesta
court stated that its decision, in effect, only nullified the
conflicting Wellenkamp
doctrine, not previous California law actually consistent with Section 545.8-3(f) or in force prior to its promulgation. Accordingly, we conclude that the Supreme Court’s decision in
Fidelity Federal S. & L. Assn.
v.
De La Cuesta
does not affect disposition of this case on the basis of Ohio law.
III
A
The present case involves issues sufficiently important to warrant some preliminary observations on the analytic framework appropriate to cases of the type
sub judice.
Two vigorous, sometimes conflicting policies compete for predominance in our law. The litigation produced as a consequence is not uncommon, nor are the legal issues unresolvable, once the nature of the conflict is properly understood. Fundamentally, the confrontation is not between lender and borrower or between mortgagee and mortgagor. The apparent antagonism in those relationships is only a surface manifestation of a deeper, systemic tension. Cf.
Dunham
v.
Ware Sav. Bank
(Mass. 1981), 423 N.E. 2d 998, 1003-1004. The genuine conflict is between freedom of alienation and freedom of contract: the ability to transfer property free from unreasonable restraints thereon versus the liberty of parties to enter into voluntary, binding agreements and to expect enforcement of bargained-for rights.
It has been suggested that the
weight of authority favors freedom of alienation. See, generally, Annotation (1976), 69 A.L.R. 3d 713, 724, 731-737.
As a general matter, of course, the law disfavors restraints on alienation, unless reasonable, and in close cases that construction will be adopted which most favors free alienability and the right to convey.
Anderson
v.
Cary
(1881), 36 Ohio St. 506, 515;
Hamilton
v.
Link-Hellmuth, Inc.
(1957), 104 Ohio App. 1 [4 O.O.2d 58];
Wayne Lakes Park, Inc.
v.
Warner
(1957), 104 Ohio App. 167, 172 [4 O.O.2d 235]; 42 Ohio Jurisprudence 2d (1960) 504, Perpetuities and Restraints on Alienation, Section 57
et seq.;
cf.
Quarto Mining Co.
v.
Litman
(1975), 42 Ohio St. 2d 73, 76-78 [71 O.O.2d 58].
In some nebulous sense, however, all agreements involving real property — including mortgages — “restrain” alien-ability, given how the particular terms and conditions of those agreements may affect subsequent transfers or dispositions of the property. Cf.
Raisch
v.
Schuster
(1975), 47 Ohio App. 2d 98. That a due-on-sale clause is a “restraint” is more often than not a dubious, unexplored assumption. In fact, of course, not every due-on-sale clause is a “restraint” on alienability, as that concept has come to be understood. In this case, we are not satisfied that the clause in question falls within any of the traditional classifications of restraints on alienation.
See Restatement of the Law, Property (1944),
Section 404;
Occidental S. & L. Assn.
v.
Venco Partnership
(1980), 206 Neb. 469, 472-476, 293 N.W. 2d 843, 845-848;
Sonny Arnold, Inc.
v.
Sentry Sav. Assn.
(Tex. 1982), 633 S.W. 2d 811, 813-815.
Mortgages, being voluntary security agreements incident or collateral to a primary obligation, are susceptible to the same rules of interpretation and the same framework of analysis which apply to contracts generally. 37 Ohio Jurisprudence 2d (1959) 240-243, Mortgages, Sections 49-50; see, also,
Sonny Arnold, Inc.
v.
Sentry Sav. Assn., supra,
at 815-816;
Occidental S. & L. Assn.
v.
Venco Partnership, supra,
at 849; 69 A.L.R. 3d,
supra,
at 725. Consequently, our analysis in this case proceeds from settled contract principles.
An approach consistent with freedom of contract recognizes the rights of parties to enter into binding mortgage agreements with full knowledge of the terms and conditions. Accordingly, the parties may contract as they please, so long as the resulting terms and conditions of the mortgage do not offend public policy and are not illegal. As we have said, due-on-sale clauses are neither void nor against public policy.
People’s Sav. Assn.
v.
Standard Industries, supra.
Nevertheless, the enforcement of due-on-sale clauses, as with other contract provisions, is subject to traditional contract defenses, including
equitable defenses.
This is essentially what the
Ingarra
court held on the facts of that case.
Great Northern Savings Co.
v.
Ingarra, supra,
at 507-508. Here, appellant’s foreclosure suit seeks equitable relief. It was long ago said that he who
seeks equity must do equity. See 41 Ohio Jurisprudence 3d (1983) 370, Equity, Section 66. Equitable estoppel, if shown, will prevent the enforcement of a valid mortgage contract or provision thereof, such as a due-on-sale clause. The question in this case is whether the facts are such that equity will interpose that remedy to preclude appellant from asserting its otherwise valid contract right.
B
The trial court found that Waldvogel had been “equivocal” in communicating First Federal’s policy regarding the exercise of its right to accelerate the outstanding mortgage payments under the due-on-sale clause. The court determined that Waldvogel’s statement about First Federal’s policy was unsatisfactory. The court also found that First Federal “remained silent for three months” after ap-pellee executed the land installment contract. Although the court explicitly declined to find that First Federal’s unresponsiveness during those three months was
per se
unreasonable, it did conclude, upon considering all the circumstances, that the three-month delay in responding was unreasonable. In particular, the court cited First Federal’s knowledge of appellee’s intent to execute the land contract and found that its “silence” for three months “promoted” reliance. The court concluded that “it is unreasonable for * * * [First Federal] to maintain that property-holders and businessmen [must] simply suspend indefinitely all ideas of property transaction until a lending institution makes up its mind about a specific policy.”
The trial court followed the Supreme Court’s formulation of equitable estoppel in
Great Northern Savings Co.
v.
Ingarra, supra.
The
Ingarra
court adopted the definition of “estoppel” as recited in the case of
In re Estate of Basmajian
(1944), 142 Ohio St. 483 [27 O.O. 410], which is as follows:
“An estoppel arises where one is concerned in or does an act which in equity and good conscience will preclude him from averring anything to the contrary, as where another has been innocently misled into some injurious change of position.”
Id.
at 494.
No single formulation of the equitable doctrine of estoppel is applicable to every case, and in applying estoppel, each case must be considered on its own facts.
Hampshire Cty. Trust Co.
v.
Stevenson
(1926), 114 Ohio St. 1, 11;
Morgenthaler
v.
Cohen
(1921), 103 Ohio St. 328, 342. Unfortunately, the
Basmajian
case does not provide the most lucid statement of estop-pel available.
In contrast, First Federal would have us hold that a knowingly false representation or concealment of material fact is the essential element of estoppel. That element, however, is more properly a decisive ingredient of misrepresentation, not estoppel, and we decline so to hold. See Restatement of the Law 2d, Contracts (1981) 426, Misrepresentation, Section 159
et seq.;
3 Pomeroy, Equity Jurisprudence (5 Ed. 1941) 192-194, Section 805; cf.
Markese
v.
Ellis
(1967), 11 Ohio App. 2d 160, 164 [40 O.O.2d 313] (“Proof of fraud, in its strict sense, is not always necessary for estoppel, and one may be held responsible for words or act[s] which he knows, or ought to know, will be acted upon by another.”). As one authority has stated:
“Discussions of estoppel often mention fraud, and sometimes courts define estoppel to include a number of the elements of actionable deceit. * * * However, estoppel is not actionable fraud and it is not treated like actionable fraud. There is usually no need for scienter, an intent to deceive, in estoppel cases, for example. Furthermore, estoppel is, according to the usual statement, a shield, not a sword. It does not furnish a basis for damages claims, but a defense against the claim of the stopped party.
“Nor is estoppel regarded as necessarily involving any promise in the
conventional sense. * * *” Dobbs, The Law of Remedies (1973) 42, Section 2.3.
It has also been observed that:
“* * * [U]nder the modern doctrine of estoppel a misrepresentation of fact is
not
necessary — a promise or an innocent representation of fact being sufficient to form the basis of an estoppel, whether it be denominated ‘equitable’ or ‘promissory.’ Under this view actual fraud, bad faith or intent to deceive is
not
essential.” Calamari & Perillo, Contracts (1977) 445-446, Section 11-34. (Emphasis added.)
The concept of estoppel has its roots in ethical premises and is the legal expression of normative policies that equity jurisprudence has fostered and developed over the centuries. In essence, the expres-. sion of estoppel in the form of a rule is that one party will not be permitted to deny that which, by his words, his acts, or his silence (when there was an obligation to speak), he has induced a second party reasonably and in good faith to assume and rely upon to that party’s prejudice or pecuniary disadvantage. See, generally, 42 Ohio Jurisprudence 3d 56, 62-66, Estoppel, Sections 36-46 (and cases cited therein); see, also, 3 Pomeroy,
supra,
Section 805. Distillable from the foregoing rule are the following four essential elements.
First, there must be something in the nature of a
representation
by words, acts, or silence. The representation must be factual, not promissory, or else the elements and analysis appropriate to a
promissory
estoppel context may apply. See
Mazer
v.
Jackson Ins. Agency
(Aa. 1976), 340 So. 2d 770, 772-773. The facts underlying the representation must be
known
to the party at the time he makes it, or at least the circumstances must be such that he is necessarily chargeable with knowledge of them. In addition, if silence is involved, it amounts to a representation only if the circumstances were such that the law recognized a duty to speak. Cf. 3A Wigmore, Evidence (Chadbourn Rev. 1970) 1056-1058, Section 1042. Second, the representation must communicate some fact or state of affairs in a
misleading
way. Third, the representation must induce actual reliance by the second party, and such reliance must be
reasonable under the circumstances and made in good faith.
Fourth, the relying party would suffer prejudice or pecuniary disadvantage if the party whose representation was relied upon were not estopped or precluded from asserting an otherwise valid right in contradiction to his earlier representation.
In assessing these four elements in the context of a particular case, relevant factors include: (a) the nature of the
representation; (b) whether the representation was in fact misleading; (c) the relative knowledge and experience of the parties; (d) whether the representation was made with the intent that it be relied upon; and (e) the reasonableness and good faith of the reliance, given all the facts and circumstances.
On the facts of this case, we conclude that the trial court erred in granting summary judgment in favor of appellee Perry’s Landing. Summary judgment is appropriately granted only if a tripartite determination is made: (1) that there is no genuine issue as to any material facts; (2) that the moving party is entitled to judgment as a matter of law; and (3) that 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, who is entitled to have the evidence construed most strongly in his favor. See
Harless
v.
Willis Day Warehousing Co.
(1978), 54 Ohio St. 2d 64, 66 [8 O.O.3d 73]. The purpose of a motion for summary judgment is to dispose of a lawsuit in an expeditious manner when there is no disputed issue of material fact necessitating a trial on the merits. See
Siegler
v. Batdorff(1979), 63 Ohio App. 2d 76, 80 [17 O.O.3d 46],
The due-on-sale clause contained in Paragraph 8 of the First Federal-Perry’s Landing mortgage agreement does not specify a time within which First Federal must assert its right to accelerate payment of the outstanding balance of the mortgage. We hold that, in the absence of a specified time, the lender has a
reasonable
time following the act or event by the borrower which triggers the terms of the clause to exercise its rights thereunder. Accord
Dunham
v.
Ware Sav. Bank, supra; Malouff
v.
Midland Fed. S. & L. Assn.
(1973), 181 Colo. 294, 509 P. 2d 1240; see, generally, 55 American Jurisprudence 2d (1971) 430-431, Mortgages, Sections 384 and 385.
Here, the triggering event occurred on January 12, 1981, when appellee executed the land contract with Perry’s Landing of Michigan. While we agree with the trial court that First Federal had no right to expect appellee to wait “indefinitely” before entering into the land contract, this is obviously not what happened. Through its hand-delivered letter, appellee notified First Federal that it would be executing the land contract with the vendee only hours before doing so. Even if First Federal’s board of directors desired to continue the bank’s general policy of not enforcing due-on-sale clauses, such a decision would have been rendered moot by appellee’s actions. Little more than
twelve days
elapsed, approximately, from the date Wumer’s attorneys first contacted Waldvogel to the date appellee actually executed the land contract. It is unreasonable to expect First Federal to make such an important policy decision within that time. It would also belie the practical realities of the business and banking community to expect First Federal’s board of directors to meet, review and effect a major policy change in so brief a time or on such short notice. We must respectfully disagree with the trial court’s conclusion that delaying enforcement of the due-on-sale clause for three months was an unreasonably long delay. We hold that three months was not unreasonable under the circumstances of this case. See
Dunham
v.
Ware Sav. Bank, supra,
at 1000.
The mortgage agreements in this case were negotiated by experienced businessmen, and the record reveals no unconscionable conduct on First Federal’s part in reaching the terms of those agreements. Furthermore, it is not at all clear that Waldvogel’s statements were misleading or were intended to induce appel-lee to act in reliance on them. Appellee’s reliance cannot be said to have been reasonable or in good faith if based upon ambiguous or uncertain statements. See 42 Ohio Jurisprudence 3d,
supra,
109-110, Section 66.
Appellee, as well as the trial court,
has characterized Waldvogel’s statements as evincing a “maybe we will enforce it, maybe we won’t” position. If this is true, then appellee’s argument for reasonable reliance becomes even weaker, for no reasonable person in appellee’s position would rely on so patent an uncertainty as the basis for precipitating a two million dollar business transaction. In fact, Waldvogel’s representations might actually be construed by a factfinder to indicate, unambiguously, that First Federal’s past policy of not enforcing due-on-sale clauses was being reviewed in anticipation of prospective enforcement. Surely the more prudent course for ap-pellee at that point would have been to wait a reasonable time and then secure a more definite statement before proceeding with the land contract.
The relative knowledge of the’parties is also important. Because appellee clearly
knew
that First Federal might exercise its right to accelerate the maturity of the loan and, ultimately, to initiate foreclosure proceedings, appellee saw fit to include Section 7 in its land contract with Perry’s Landing of Michigan. Section 7 provides for that contingency and allows said vendee to recover its down payment in the event First Federal obtains a foreclosure judgment against ap-pellee.
Certainly there were disputed questions of material fact about which reasonable minds might conclude differently.
If
reasonable minds
could
conclude differently with respect to whether Waldvogel’s statements in fact misled ap-pellee and whether appellee’s reliance on those statements was reasonable and in good faith, they clearly
might
resolve those questions in favor of First Federal. Thus, summary judgment was improperly granted. First Federal’s first assignment of error is well-taken.
C
In view of our disposition of the first assignment of error, the second assignment of error is now moot. Appellee, cross-appellant herein, submits that it has timely tendered all mortgage payments due under the First Federal-Perry’s Landing mortgage agreements. In support of its assignment of error, appellee contends that since no condition of the mortgage agreements was breached, there is no basis to support appellant’s foreclosure action. Appellee argues that First Federal is therefore liable in damages for wrongful foreclosure.
This assignment of error is without merit. First, since we have concluded that appellee’s execution of its land contract with Perry’s Landing of Michigan constitutes a “change in * * * ownership,” there is at least a prima facie breach of the consent condition of Paragraph 8 of the First Federal-Perry’s Landing mortgage agreements. First Federal’s right to foreclose on the mortgages is predicated on the due-on-sale clauses, which appellee triggered by executing the land contract. Secondly, equitable estoppel operates as a shield, not a sword. Hence, damages for wrongful foreclosure cannot logically be sought by raising the defense of equitable estoppel, whether the same is successfully invoked or not. (On remand, it remains for the trier of fact to determine the equitable estoppel issues as herein indicated in III B of this opinion. See Civ. R. 39[C], regarding the use of an advisory jury.)
More to the point, appellee’s counterclaim prays for “judgment against [appellant] in an amount not fully ascertainable at this time,
but which includes attorneys’ fees
and all costs incurred herein. * * *” First Federal’s foreclosure suit is, in essence, an equitable contract action. As a general rule, attorney fees (for either party) are not recoverable as damages in contract actions, unless there has been a substantial showing of bad faith or wrongful motives. See
Sorin
v.
Bd. of Edn.
(1976), 46 Ohio St. 2d 177, 181-183 [75 O.O.2d 224];
Northern Ohio Sugar Co.
v.
Columbia Gas of Ohio, Inc.
(May 29, 1981), Huron App. No. H-80-31, unre
ported. No such showing has been made in the record of this case. Accordingly, the trial court did not err in denying appellee’s counterclaim. Appellee’s sole cross-assignment of error is not well-taken.
On consideration whereof, this court finds that substantial justice has not been done the party complaining, and the judgment of the Wood County Court of Common Pleas is hereby reversed. This cause is remanded to said court for further proceedings not inconsistent with this opinion. Costs to abide final determination.
Judgment reversed and cause remanded.
Connors, P.J., and Resnick, J., concur.