[Cite as Lakeview Loan Servicing, L.L.C. v. Adegunju, 2025-Ohio-2019.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: LAKEVIEW LOAN SERVICING, LLC : Hon. Craig R. Baldwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Kevin W. Popham, J. : -vs- : : Case No. 2025 CA 00003 TOLULOPE ADEGUNJU : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2024 CV 00219
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 5, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BENJAMIN D. CARNAHAN TOLULOPE ADEGUNJU PRO SE North Point Tower 7141 Lester Drive 1001 Lakeside Avenue Canal Winchester, OH 43110 Cleveland, OH 44114 [Cite as Lakeview Loan Servicing, L.L.C. v. Adegunju, 2025-Ohio-2019.]
Popham, J.,
{¶1} Appellant appeals the January 8, 2025, judgment entries of the Fairfield
County Court of Common Pleas granting appellee’s motion to strike affidavit, motion for
default judgment, motion for summary judgment, and entering a decree of foreclosure.
For the reasons set forth below, we affirm.
Facts & Procedural History
{¶2} On August 31, 2020, appellant Tolulope Adegunju executed a promissory
note in favor of DHI Mortgage Company, LTD (“DHI”), in the amount of $338,933. The
note is endorsed in blank. Also on August 31, 2020, appellant and Racheal Adegunju
(“Racheal”) executed a mortgage that secured the note and encumbered the property
located at 7141 Lester Drive in Canal Winchester. The mortgage provided the lender was
DHI and listed Mortgage Electronic Registration Systems (“MERS”) as mortgagee and
nominee for the lender and the lender’s successors and assigns. The mortgage was
recorded on September 10, 2020. An “Assignment of Mortgage” was dated and recorded
on February 13, 2024. In the document, MERS, as nominee for DHI, assigned the August
31, 2020, mortgage to appellee Lakeview Loan Servicing, LLC.
{¶3} Appellee filed a complaint for foreclosure on March 14, 2024, stating
appellant was in default due to lack of payment. Appellee attached to its complaint a copy
of the note, mortgage, and assignment of mortgage. The complaint alleged appellee was
the holder of the note and mortgage, and the amount due and owing was $318,795.65,
plus interest at the rate of 2.750% per annum from April 1, 2023, plus late charges and
costs. {¶4} Appellee attempted service on appellant via certified mail, ordinary mail,
and process server. After those methods were unsuccessful, appellee filed an affidavit
for service by publication on July 23, 2024. Proof of service of publication was filed on
August 23, 2024, which states the last publication in the Lancaster Eagle-Gazette was on
August 15, 2024.
{¶5} On September 3, 2024, appellant filed a motion for leave to file an answer
instanter. The trial court granted the motion. Appellant’s answer consisted of various
documents, but did not deny any of the allegations in the complaint or raise any affirmative
defenses.
{¶6} Appellee filed a motion for default judgment against Racheal and moved for
summary judgment against appellant on November 18, 2024. Appellee submitted the
affidavit of Linda Brown (“Brown”), assistant secretary for LoanCare, LLC, as servicer for
appellee, in support of its motion for summary judgment.
{¶7} Appellant purported to file a memorandum in opposition to the motion for
summary judgment on December 12, 2024, arguing: appellee failed to demonstrate it
was entitled to enforce the note and mortgage; appellee monetized the note through
securitization and sale; and the definition of “loan” in the mortgage is ambiguous. Rachael
signed the memorandum in opposition, as “attorney in fact” for appellant. Similarly, a
document purporting to be the affidavit of appellant was filed, with Racheal signing the
document as “attorney in fact” for appellant. The document was not notarized. Also
attached to the memorandum in opposition is a blank Fannie Mae “Request for
Release/Return of Documents” form and a blank “Master Custodial Agreement” form. {¶8} Appellee filed a motion to strike appellant’s affidavit because the affidavit
was not notarized and because there was no evidence Racheal had a power of attorney
for appellant. Appellant filed a motion to strike the affidavit of Brown, alleging it was
“procedurally and substantively deficient.”
{¶9} On January 8, 2025, the trial court issued a judgment entry “striking filings.”
First, the trial court denied appellant’s motion to strike Brown’s affidavit. Second, the trial
court granted appellee’s motion to strike the affidavit of appellant because it was not
notarized. Finally, the trial court struck the memorandum in opposition to the motion for
summary judgment to the extent it was filed on behalf of appellant because it was signed
by Racheal, as “not being signed by an attorney representing [appellant] nor [appellant]
himself [in violation of Civ.R. 11].” Trial Court Entry Striking Filings filed Jan. 8, 2025.
{¶10} Also on January 8, 2025, the trial court granted appellee’s motion for default
judgment and summary judgment and entered a decree of foreclosure.
{¶11} Appellant appeals the January 8, 2025, judgment entries of the Fairfield
County Court of Common Pleas, and assigns the following as error:
{¶12} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST.”
{¶13} “II. THE TRIAL COURT ERRED IN STRIKING DEFENDANT’S AFFIDAVIT
RATHER THAN ALLOWING LEAVE TO CURE A PROCEDURAL DEFICIENCY.”
{¶14} “III. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
DESPITE APPELLEE’S FAILURE TO ADEQUATELY ESTABLISH IT WAS A HOLDER
IN DUE COURSE AND/OR ENTITLED TO ENFORCE THE NOTE AND MORTGAGE.” {¶15} “IV. THE TRIAL COURT ERRED IN OVERLOOKING APPELLEE’S ROLE
AS A SERVICER OF GNMA-BACKED SECURITIES RATHER THAN AN ENTITY
ENTITLED TO DIRECT ENFORCEMENT OF THE NOTE.”
{¶16} “V. THE TRIAL COURT ERRED BY MISAPPLYING PROCEDURAL
RULES IN A WAY THAT VIOLATED DUE PROCESS AND FUNDAMENTAL
FAIRNESS.”
{¶17} “VI. THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT
CONTRADICTS OHIO’S EQUITY-BASED STANDING, AND POTENTIAL DOUBLE
RECOVERY BEFORE GRANTING SUMMARY JUDGMENT.”
II.
{¶18} For ease of discussion and because we apply a different standard of review
to appellant’s second assignment of error, we will address it first.
{¶19} This Court has consistently reviewed entries striking affidavits, including
entries striking affidavits within the summary judgment pleading process, under an abuse
of discretion standard. Campagna-McGuffin v. Diva Gymnastics Academy, Inc., 2022-
Ohio-3885 (5th Dist.); Curtis v. Schmid, 2008-Ohio-5239 (5th Dist.). In order to find an
abuse of discretion, we must find the trial court’s decision was unreasonable, arbitrary, or
unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1983).
{¶20} The trial court granted appellee’s motion to strike based upon the fact that
the affidavit was not notarized and struck the memorandum in opposition because it was
not signed by appellant. Rather, it was signed by Rachael purportedly as appellant’s
“attorney in fact.” {¶21} Pursuant to established Ohio law, we find the trial court did not commit error
in striking the affidavit. “A paper purporting to be an affidavit, but not to have been sworn
to before an officer, is not an affidavit,” and is “void.” In re Disqualification of Pokorny, 74
Ohio St.3d 1238, 1238 (1992); State, ex rel. Coulverson v. Ohio Adult Parole Auth., 62
Ohio St.3d 12 (1991); R.C. 2319.02; R.C. 2319.04. The Supreme Court of Ohio
reaffirmed this holding in 2004, and stated when a written declaration is not made under
oath before a proper officer, it should be stricken from the record. Toledo Bar Assn. v.
Neller, 2004-Ohio-2895. It is undisputed that the affidavit was not sworn before anyone
authorized to administer oaths. Thus, the trial court did not abuse its discretion in striking
appellant’s purported affidavit.
{¶22} We likewise find the trial court did not abuse its discretion in striking
appellant’s purported memorandum in opposition to the motion for summary judgment.
The memorandum in opposition was signed by Racheal, stating she was “attorney in fact”
for appellant. However, only a licensed attorney may file pleadings and other legal papers
in court or manage court actions on another’s behalf. Disciplinary Counsel v. Givens,
2005-Ohio-4104; Matter of G.T., 2022-Ohio-654 (5th Dist.) (cannot raise arguments on
behalf of another person). Furthermore, “a general power of attorney does not grant
authority to prepare and file papers in court on another person’s behalf. Such legal
representation can be undertaken only in compliance with applicable licensure
requirements.” Ohio State Bar Assn. v. Heath, 2009-Ohio-5958, ¶ 23.
{¶23} Finally, appellant argues the trial court failed to consider R.C.
1301.201(B)(34). However, this section is a definition section providing that the term “right,” “includes remedy.” This section does not provide any independent source of rights
for appellant, and does not support appellant’s argument.
{¶24} Appellant’s second assignment of error is overruled.
{¶25} The balance of appellant’s assignments of error are based upon the trial
court’s granting of appellee’s motion for summary judgment.
Summary Judgment Standard
{¶26} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶27} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non- moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427 (1981). A court may not
resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v.
Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321 (1984). A fact is material if it
affects the outcome of the case under the applicable substantive law. Russell v. Interim
Personnel, Inc., 135 Ohio App.3d 301 (6th Dist. 1999).
{¶28} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35 (1987). This means we review the matter de novo. Doe v.
Shaffer, 2000-Ohio-186.
I.
{¶29} In his first assignment of error, appellant argues the trial court committed
error in granting summary judgment because genuine issues of material fact exist.
Specifically, appellant contends: (1) appellee failed to demonstrate a clear chain of
unbroken title; (2) there is a discrepancy in the mortgage; and (3) there are “material
inconsistencies” in appellee’s evidence.
{¶30} As to appellant’s chain of title argument, as we state below in our analysis
of Assignment of Error III, appellee is the holder of the note, which was endorsed in blank.
Because of this blank endorsement, “defenses relating to chain of title are null and
inapplicable, because it is immaterial how the person became the holder of the note.”
HSBC Bank USA v. Brinson, 2023-Ohio-1462, ¶ 19 (9th Dist.); Bank of N.Y. Mellon v.
Froimson, 2013-Ohio-5574 (8th Dist.). Further, as we detail below, appellee has provided evidence that it received the mortgage through an assignment prior to the filing of the
foreclosure complaint.
{¶31} Appellant alleges there is a discrepancy in the stated purpose of the
mortgage, i.e., whether it “secures repayment of the Note” or whether it “protects against
possible losses,” and thus, appellee does not clearly establish the nature of the obligation
and the instruments do not state fixed and unconditional obligations as required by R.C.
Chapter 1303. We disagree. The mortgage defines “loan” as “debt evidenced by the
Note, plus interest, late charges due under the Note, and all sums due under this Security
Instrument, plus interest.” The note, which is referenced and incorporated into the
mortgage, states the principal debt is $338,933, the interest rate is 2.750%, and late
charges are 4% of overdue payment. The term of the loan is clearly defined by the
mortgage and the note. The mortgage in this case clearly defines the purpose of the
mortgage, as it provides, “this Security Instrument secures to the Lender: (i) the
repayment of the Loan . . .”.
{¶32} To properly support a motion for summary judgment in a foreclosure action,
a plaintiff must present evidentiary quality material establishing: (1) the plaintiff is the
holder of the note and mortgage; (2) if the plaintiff is not the original mortgagee, the chain
of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent
have been satisfied; and (5) the amount of principal and interest due. Wachovia Bank of
Delaware, N.A. v. Jackson, 2011-Ohio-3203 (5th Dist.). Here, appellee presented
undisputed evidence that it is the holder of the note endorsed in blank, and that the
mortgage was assigned to it prior to the filing of the complaint. Similarly, appellee
presented undisputed evidence that appellant is in default, all conditions precedent have been satisfied, and the amount of principal and interest due. Appellant presented no
evidence to create a genuine issue of material fact as to any of these requirements. We
find no “material inconsistences” in the documents and evidence presented by appellee.
{¶33} Appellant’s first assignment of error is overruled.
III.
{¶34} In his third assignment of error, appellant contends the trial court committed
error in granting summary judgment because appellee failed to adequately establish it is
entitled to enforce the note and the mortgage. Specifically, appellant contends appellee
failed to establish it was a holder in due course and failed to provide sufficient
documentation to establish it possessed the note. We disagree.
{¶35} To have standing to pursue a foreclosure action, a plaintiff must “establish
an interest in the note or mortgage at the time it filed suit.” Fed. Home Loan Mtge. Corp.
v. Schwartzwald, 2012-Ohio-5017, ¶ 28. The current holder of the note and mortgage is
the real party in interest in a foreclosure action. Nationstar Mtge., L.L.C. v. Williams,
2014-Ohio-4553 (5th Dist.). R.C. 1303.31 provides:
(A) “Person entitled to enforce” an instrument means any of the following
persons: (1) the holder of the instrument; (2) a non-holder in possession of
the instrument who has the rights of a holder; (3) a person not in possession
of the instrument who is entitled to enforce the instrument pursuant to
Section 1303.38 or division (D) of section 1303.58 of the Revised Code.
{¶36} In this case, appellee attached to both the complaint and Brown’s affidavit
copies of the note and mortgage, and alleged it was the holder of the mortgage and note,
which was endorsed in blank. Also attached to the complaint and Brown’s affidavit is an assignment of mortgage dated and recorded February 13, 2024, in which MERS, as
nominee for DHI, assigned the August 31, 2020, mortgage to appellee. When an
instrument is endorsed in blank, the instrument becomes payable to bearer and may be
negotiated by transfer of possession alone until specifically endorsed. R.C. 1303.25(B).
In addition, Brown specifically stated in her affidavit that appellee is in possession of the
original note, endorsed in blank, and was in possession of the original note on the date
the complaint was filed. Accordingly, appellee presented specific evidence to
demonstrate it was the current holder of the note and mortgage when the complaint was
filed. Appellant did not provide any Civil Rule 56 evidence to create a genuine issue of
material fact that appellee was not the owner and holder of the note and mortgage at the
time the complaint was filed.
{¶37} Further, even if appellee was not in possession of the note at the time the
complaint was filed, the assignment of the mortgage is sufficient to transfer both the note
and mortgage because the documents evince the parties’ intent to keep the instruments
together. In Bank of New York v. Dobbs, 2009-Ohio-4742 (5th Dist.), we held that the
assignment of a mortgage, without an express transfer of the note, is sufficient to transfer
both the mortgage and the note if the record indicates the parties intended to transfer
both the note and the mortgage.
{¶38} This case is analogous to the Dobbs case as the record indicates the parties
intended to transfer both the note and mortgage. The noted dated August 31, 2020,
provides, “in return for a loan that I have received, I promise to pay U.S. $338,933.00 plus
interest, to the order of the Lender.” Further, the note states, “in addition to the protections
given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (“Security Instrument”) dated the same date as this Note, protects the Note Holder from
possible losses which might result if I do not keep the promises which I make in this Note.”
The mortgage, dated August 31, 2020, provides, “[t]his Security Instrument secures to
Lender: (i) the repayment of the Loan, and all renewals, extensions, and modifications of
the Note; and (ii) the performance of Borrower’s covenants and agreements under this
Security Instrument and the Note.”
{¶39} The note refers to the mortgage and the mortgage refers to the note. Thus,
we find a clear intent by the parties to keep the note and mortgage together rather than
transferring the mortgage alone. Since the mortgage assignment was recorded on
February 13, 2024, prior to the filing of the complaint on March 14, 2024, the note was
effectively transferred on that date.
{¶40} Accordingly, there are no genuine issues of material fact as to whether
appellee is the real party in interest with standing to pursue this foreclosure action.
Appellant’s third assignment of error is overruled.
IV.
{¶41} In appellant’s fourth assignment of error, he argues the trial court committed
error in “overlooking appellee’s role as a servicer of GNMA-backed securities rather than
an entity entitled to direct enforcement of the note.” Appellant contends appellee is
impermissibly collecting payments on behalf of a securitized trust rather than enforcing a
debt obligation, and is seeking double recovery. We disagree.
{¶42} “Securitization is the process in which certain types of assets are pooled so
they can be repackaged into interest-bearing securities. The interest and principal
payments from the assets are passed through to the purchasers of the securities.” Wells Fargo Bank, N.A. v. Johnson, 2016-Ohio-1114, ¶ 11 (6th Dist.). Appellant cites no
authority for the proposition that a loan becomes unenforceable because it was
securitized.
{¶43} This Court has specifically held, “neither securitization nor the availability of
insurance can extinguish a borrower’s obligations under a note and mortgage.” Wells
Fargo Bank, N.A. v. Roehrenbeck, 2016-Ohio-1273, ¶ 17 (5th Dist.); see also
Dauenhauer v. Bank of New York Mellon, 562 Fed.Appx. 473 (6th Cir. 2014)
(securitization does not “absolve [a] plaintiff from having to make payments on his loan
or somehow shield plaintiff’s property from foreclosure”). Accordingly, appellant’s fourth
assignment of error is overruled.
V.
{¶44} In his fifth assignment of error, appellant argues the trial court “misapplied
procedural rules in a way that violated due process and fundamental fairness.” In this
assignment of error, appellant briefly asserts that disputed issues exist regarding
standing, ownership, and contract enforceability. Based on our analysis in the previous
assignments of error, we find appellant’s arguments unpersuasive and insufficient to
create a genuine issue of material fact.
{¶45} The bulk of appellant’s argument in this assignment of error is concentrated
on appellant’s assertion that the trial court improperly relied on Brown’s affidavit.
Specifically, appellant argues that Brown’s affidavit failed to satisfy the requirement of
Civil Rule 56(E) that affidavits must be made on personal knowledge, because it does not
identify the scope of her job duties or explain how she is familiar with the loan at issue.
We disagree. {¶46} Evidence Rule 803(6) provides that records of regularly conducted business
activity are admissible, as an exception to the rules of hearsay, if shown to be such “by
the testimony of the custodian or other qualified witness.” The question of who may lay
a foundation for the admissibility of business records as a custodian or other qualified
witness must be answered broadly. Citimortgage, Inc. v. Cathcart, 2014-Ohio-620 (5th
Dist.). It is not a requirement that the witness has firsthand knowledge of the transaction
giving rise to the business record. Id. “Rather, it must be demonstrated that the witness
is sufficiently familiar with the operation of the business and with the circumstances of the
record’s preparation, maintenance, and retrieval, that he can reasonably testify on the
basis of this knowledge that the record is what it purports to be, and that it was made in
the ordinary course of business consistent with the elements of Rule 803(6).” Id. at ¶ 28.
{¶47} Affidavits which merely set forth conclusions or opinions without stating
supporting facts are insufficient to meet the requirements of Civil Rule 56(E). Nationstar
Mtge., L.L.C. v. Williams, 2014-Ohio-4553 (5th Dist.). However, Ohio law recognizes that
personal knowledge may be inferred from the contents of an affidavit. Id. The assertion
of personal knowledge in an affidavit satisfies Civil Rule 56(E) if the nature of the facts in
the affidavit combined with the identity of the affiant creates a reasonable inference that
the affiant has personal knowledge of the facts in the affidavit. Id.
{¶48} In her affidavit, Brown stated as follows: she is an Assistant Secretary of
LoanCare, LLC, the servicer for appellee; she has personal knowledge of the facts and
matters based upon her review of the business records; in the regular performance of her
job functions, she is familiar with and has access to business records maintained by
LoanCare, LLC, the servicer for appellee, for the purpose of servicing mortgage loans; the records are made or received and retained at or near the time by or from information
provided by persons with knowledge of the activity and transactions reflected in such
records, and are made and kept in the usual and ordinary course of business activity
regularly conducted by LoanCare, LLC, the servicer for appellee; she personally
examined the business records relating to the account referred to in the affidavit, including
how and when it obtained possession of the executed loan documents; and appellee is
in possession of the original note, which was endorsed in blank, and was in possession
of the original note on the date the complaint was filed.
{¶49} Brown’s affidavit provides details of the note, mortgage, and mortgage
assignment. Brown averred there has been a default in payment under the terms of the
note and mortgage, appellee exercised the acceleration option contained in the note and
mortgage, and all of the lender’s conditions precedent for the enforcement of the
promissory note and mortgage were fulfilled. Further, Brown averred there is due and
owing the amount of $318,795.65, plus interest at the rate of 2.750% per annum from
April 1, 2023, plus court costs, advances, and other charges. Brown attached the note,
mortgage, assignment of mortgage, loan payment history, and notice of default to her
affidavit and stated these were all true and accurate copies of the business records.
{¶50} From her position as assistant secretary for LoanCare, LLC, the servicer for
appellee, and her statement that she personally reviewed the documents in the instant
case, it may be reasonably inferred that Brown has personal knowledge to qualify the
documents as an exception to the hearsay rule as business documents. Id. The affidavit
is properly admissible Civil Rule 56 evidence and appellant, in failing to respond to
appellee’s motion for summary judgment due to his response being stricken, did not submit any Civil Rule 56 evidence to contradict the affidavit, and thus failed to establish
any genuine issue of material fact.
{¶51} The trial court did not commit error in granting summary judgment based
on Brown’s affidavit. Appellant’s fifth assignment of error is overruled.
VI.
{¶52} In his final assignment of error, appellant argues the trial court’s grant of
summary judgment contradicts “Ohio’s equity-based standing.” Appellant again repeats
his argument that appellee is receiving “double recovery.” We disagree.
{¶53} Because appellant’s memorandum in opposition to the motion for summary
judgment was stricken, he puts forth no Civil Rule 56(C) evidence to demonstrate any
type of double recovery or inequity. Even if we were to consider the memorandum
submitted by appellant, none of the information submitted by him demonstrates any type
of double recovery or inequity. Appellant’s sixth assignment of error is overruled.
{¶54} Based on the foregoing, appellant’s assignments of error are overruled. {¶55} The January 8, 2025, judgment entries of the Fairfield County Court of
Common Pleas are affirmed.
By Popham, J.,
Baldwin, P.J., and
Hoffman, J., concur