[Cite as U.S. Bank Trust, N.A. v. Kerwood , 2018-Ohio-3062.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

U.S. Bank Trust, N.A., as Trustee for
LSF9 Master Participation Trust,                    :

                Plaintiff-Appellee,                 :

v.                                                  :               No. 18AP-35
                                                                (C.P.C. No. 17CV-3232)
Brad A. Kerwood et al.,                             :
                                                               (REGULAR CALENDAR)
                Defendants-Appellees,               :

(Global Capital Partners, LLC,                      :
Trustee of the 1794 Audrey Road Trust,
                                                    :
                Defendant-Appellant).
                                                    :


                                         D E C I S I O N

                                     Rendered on August 2, 2018


                On brief: Reisenfield & Associates, LLC, and John R. Tarter,
                for appellee U.S. Bank Trust N.A., as Trustee, LSF9 Master
                Participation Trust. Argued: John R. Tarter.

                On brief: Atkins & Atkins, Attorneys at Law, LLC, and
                Anthony McGeorge, for appellant.


                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Global Capital Partners, LLC, Trustee of the 1794 Audrey Road Trust ("Global
Capital Partners") is appealing from the granting of summary judgment in a foreclosure
case. It assigns a single error for our consideration:
                The Trial Court abused its discretion by granting Appellee's
                Motion for Summary Judgment because there were genuine
No. 18AP-35                                                                               2


              issues of fact and Appellee was not entitled to judgment as a
              matter of law.

       {¶ 2} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if:
              [T]he 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 as to any 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.

       {¶ 3} Accordingly, summary judgment is appropriate only where: (1) no genuine
issue of material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621,
629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66 (1978).
       {¶ 4} "Even the inferences to be drawn from the underlying facts contained in the
evidentiary materials, such as affidavits and depositions, must be construed in a light most
favorable to the party opposing the motion." Hannah v. Dayton Power & Light Co., 82
Ohio St.3d 482, 485 (1998). Summary judgment is a procedural device to terminate
litigation, so it must be awarded cautiously with any doubts resolved in favor of the
nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
       {¶ 5} De novo review is well established as the standard of review for summary
judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We stand in the
shoes of the trial court and conduct an independent review of the record applying the same
summary judgment standard. See Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996);
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
       {¶ 6} The brief filed on behalf of Global Capital Partners centers its arguments on
assertions that U.S. Bank Trusts, N.A. failed to show that it was the holder of the note and
mortgage in question and other foundational issues. The brief does not allege that
payments on the note have been made.
No. 18AP-35                                                                               3


       {¶ 7} " 'To properly support a motion for summary judgment in a foreclosure
action, a plaintiff must present "evidentiary quality materials" establishing: (1) that the
plaintiff is the holder of the note and mortgage, or is a party entitled to enforce the
instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and
transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been
met; and (5) the amount of principal and interest due.' " HSBC Bank USA, N.A. v. Webb,
10th Dist. No. 16AP-845, 2017-Ohio-9285, ¶ 9, quoting Regions Bank v. Seimer, 10th Dist.
No. 13AP-542, 2014-Ohio-95, ¶ 19, quoting Deutsche Bank Natl. Trust Co. v. Najar, 8th
Dist. No. 98502, 2013-Ohio-1657, ¶ 17, citing U.S. Bank, N.A. v. Adams, 6th Dist. No. E-11-
070, 2012-Ohio-6253, ¶ 10, citing Wachovia Bank v. Jackson, 5th Dist. No. 2010-CA-
00291, 2011-Ohio-3203, ¶ 40-45; Home S. & L. Co. v. Eichenberger, 10th Dist. No. 12AP-
1, 2012-Ohio-5662, ¶ 17. Apparently in 2006, Brad and Julie K. Kerwood bought 1794
Audrey Road in Columbus, Ohio subject to a note and mortgage. The mortgage was
assigned to U.S. Bank in 2016.
       {¶ 8} The Kerwoods stopped paying on the note and mortgage and apparently
executed a deed transferring their interest in the property to Global Capital Partners. U.S.
Bank, in turn, initiated a foreclosure action and served the Kerwoods with appropriate
process. The Kerwoods never entered an appearance in the litigation, so U.S. Bank filed a
motion requesting a default judgment as to the Kerwoods. As to the remaining parties, it
filed a motion requesting summary judgment.
       {¶ 9} In its brief, U.S. Bank asserts that Global Capital Partners has no standing to
contest the note and mortgage executed by the Kerwoods. A third party, not a party to a
contract, has no enforceable right under such contract unless the contracting parties
intended to create such rights. Gentile v. Ristas, 160 Ohio App.3d 765, 2005-Ohio-2197,
¶ 89 (10th Dist.), citing Laverick v. Children's Hosp. Med. Ctr., Inc., 43 Ohio App.3d 201,
204 (9th Dist.1988). If the promisee intends that a third party should benefit from the
contract, then that third party is an intended beneficiary who has enforceable rights under
the contract. Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083, ¶ 11, citing
Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40 (1988). If the promisee
has no intent to benefit a third party, then any third-party beneficiary to the contract is
merely an incidental beneficiary, who has no enforceable rights under the contract. Id. As
No. 18AP-35                                                                                 4


to the note, this is apparently true. The note signed by the Kerwoods is their obligation, not
the obligation of any other entity.
       {¶ 10} As to the mortgage, however, Global Capital Partners has standing. It is the
recipient of a deed purportedly conveying ownership of the property to it. If that ownership
is taken away, it is harmed. Global Capital Partners has standing to contest ownership of
the property.
       {¶ 11} Global Capital Partners also argues about various technicalities in the
information before the trial court when the notice of summary judgment was filed. None
of these arguments are persuasive.
       {¶ 12} Affidavits offered to support or oppose summary judgment "shall be made on
personal knowledge." Civ.R. 56(E). "[R]ecords custodians can present business records
kept in the regular course of business if they have personal knowledge of the company's
records because such records are excepted from exclusion as hearsay and may be
authenticated by the records custodian." HSBC Bank USA, N.A. at ¶ 10; see Fannie Mae v.
Bilyk, 10th Dist. No. 15AP-11, 2015-Ohio-5544, ¶ 8-17; Evid.R. 803(6).
       {¶ 13} The employee of the entity which processes the loan documents for U.S. Bank
demonstrates sufficient personal knowledge of the transaction to allow her affidavit to be
considered by the trial court when considering the merits of the motion for summary
judgment filed on behalf of U.S. Bank.
       {¶ 14} The trial court properly found that there is no genuine issues as to any
material fact, and that U.S. Bank Trust, N.A. is entitled to a judgment and decree in
foreclosure as a matter of law. The sole assignment of error is overruled. The judgment of
the Franklin County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                            KLATT and HORTON, JJ., concur.
