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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14555
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03532-TWT
WAYNE CHADWICK,
Plaintiff - Appellant,
versus
BANK OF AMERICA, N.A.,
Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(July 8, 2015)
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Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Wayne Chadwick appeals the district court’s order denying Chadwick’s
motion to strike an affidavit and granting summary judgment in favor of Bank of
America, N.A. (BANA). For the reasons below, we affirm.
I. BACKGROUND
This case arises out of a foreclosure action initiated by BANA against
Chadwick on Chadwick’s home in Georgia. The relationship between Chadwick
and BANA is set forth in two contracts, both executed in 2003 when Chadwick
took out a $157,000 loan to refinance his pre-existing mortgage: the Security Deed
and the Promissory Note.
The Security Deed confers on BANA “the right to foreclose and sell the
Property” in the event Chadwick defaults on the loan. The Promissory Note in turn
states Chadwick “will be in default” if he does not pay “the full amount of each
monthly payment on the date it is due.”
In 2009, Chadwick defaulted on the loan by failing to make three
consecutive monthly payments. As required by the Security Deed, BANA sent
Chadwick notices of intent to accelerate dated May 18, 2009, August 17, 2009,
October 19, 2009, and February 8, 2010. Each of the notices contained
substantially the same information. Specifically, the February 2010 notice stated:
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(a) Chadwick was in default as of October 1, 2009; (b) BANA must receive
$5,252.78 to cure the default; (c) the money was due by March 10, 2010; (d) if the
default were not cured by then, BANA would accelerate the mortgage payments
and initiate foreclosure proceedings; and (e) Chadwick had a right to reinstate after
acceleration. Each notice also penalized Chadwick with a late-payment fee.
After receiving the February 2010 notice, Chadwick made only one payment
for $1,005.29 on or about February 26, 2010. Chadwick did not make any further
payments on the loan. He claims he offered to make payments over the telephone,
but was told he had to seek modification. BANA disputes this assertion, claiming
it never said it would reject Chadwick’s tender.
In either case, Chadwick did not cure his default, and BANA retained
McCalla Raymer to conduct a non-judicial foreclosure sale of the property. A
foreclosure sale was initially scheduled to take place on June 1, 2010. In May
2010, however, Chadwick applied for a loan modification and requested the
foreclosure be postponed pending review of his application. The investor,
Federal National Mortgage Association (Fannie Mae), approved
postponement of the June 2010 sale pending this review.
On or about May 2010, BANA determined Chadwick qualified to be
reviewed for the “Making Homes Affordable” program, but additional
documentation was needed to complete the review. Before Chadwick
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submitted the required documentation, however, he filed for bankruptcy.
Accordingly, no loan modification review was completed in 2010.
Chadwick’s bankruptcy petition was ultimately dismissed, and he
applied again for a loan modification in April 2011. In that same month,
Chadwick submitted some, but not all of the documents necessary to enable
BANA to complete a loan modification review. Over the next several
months, BANA requested additional documents from Chadwick. Chadwick
failed to provide all of the required documents.
Subsequently, on June 30, 2011, McCalla Raymer sent Chadwick a
letter advising Chadwick that he still owed $170,052.30 to BANA and could
contact McCalla Raymer for reinstatement and payoff figures. On July 6,
2011, McCalla Raymer sent Chadwick a second letter informing Chadwick of
several alternatives, including loan modification, that may be available to
avoid foreclosure. The July 6 letter cautioned, however, that in order to take
advantage of these alternatives, Chadwick must submit certain financial
documentation.
On July 26, 2011, McCalla Raymer sent Chadwick a third letter, a
notice of foreclosure sale, which reminded Chadwick that the total amount on
his loan was due and scheduled a September 6, 2011 foreclosure sale date.
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McCalla Raymer also published a copy of the notice of sale in the Forsyth
County legal organ for four consecutive weeks prior to the September 6, 2011
sale date.
On September 1, 2011, BANA asked the investor, Fannie Mae, to
postpone the September 6 sale because Chadwick had again requested to be
reviewed for a loan modification. Fannie Mae did not grant the request.
On September 2, 2011, a BANA employee sent an email to Alisha
Smith, a representative of Chadwick’s authorized third-party payer,
requesting additional documents needed to review Chadwick for the
modification. The email stated certain documents were “missing or
outdated” and provided a list of documents needed to review Chadwick for
modification. As financial documents expire after 90 days, the email
emphasized all of the listed documents “must be Signed and Dated within 90
DAYS.” The email did not state the September 6, 2011 foreclosure would be
postponed or otherwise reference a foreclosure sale. Later in the day on
September 2, 2011, a BANA employee sent another email to Alisha Smith
clarifying that the foreclosure was still scheduled and collections will
continue.
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In the end, Chadwick never submitted the documents requested in the
September 2, 2011 email, and the modification was denied. Accordingly,
Chadwick’s home was sold at a public foreclosure sale on September 6, 2011
to BANA for $171,795.34, which represented the outstanding indebtedness
Chadwick owed on the loan.
In October 2012, Chadwick sued BANA alleging several causes of
action, including wrongful foreclosure, and seeking attorneys’ fees. In June
2014, BANA moved for summary judgment. In support of its motion,
BANA filed the affidavit of one of its officers, Brianna May.
Chadwick responded to BANA’s motion for summary judgment and
moved to strike May’s affidavit. On September 9, 2014, the district court
denied Chadwick’s motion to strike May’s affidavit and granted BANA’s
motion for summary judgment. Chadwick appealed.
II. DISCUSSION
A. May’s Affidavit
Chadwick argues the district court erred in considering May’s affidavit when
it ruled on BANA’s motion for summary judgment. Specifically, Chadwick argues
(1) May is a surprise witness; and (2) her testimony is based on inadmissible
hearsay. We disagree with both arguments.
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First, although BANA did not explicitly identify May as a witness in its
discovery disclosures, we agree with the district court May is not a surprise
witness. Prior to the close of discovery, Chadwick had notice that May had
information relevant to his claims. In particular, on February 20, 2014 May
verified BANA’s responses to interrogatories about the foreclosure process on
Chadwick’s Loan. As a result, May’s knowledge of the case should not have
surprised Chadwick. Chadwick had ample opportunity to depose her, but simply
chose not to. See Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 732 (7th Cir.
2004) (holding no discovery violation, even though affiant was not listed in
defendants’ discovery responses, because “plaintiffs were on notice prior to the
close of discovery that [affiant] had information pertinent to this matter and was a
potential witness” and thus “plaintiffs had a fair opportunity to seek discovery”);
see also Advisory Committee’s Notes on 1993 Amendment to Fed. R. Civ. P. 26(e)
(explaining a party has “no obligation to provide supplemental or corrective
information that has been otherwise made known to the parties in writing or during
the discovery process, as when a witness not previously disclosed is identified
during the taking of a deposition”).
Second, May’s affidavit is not based on inadmissible hearsay. As manager
of BANA’s Mortgage Resolution Team and BANA’s authorized representative,
May was competent to lay the foundation for the business records. See Rosenberg
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v. Collins, 624 F.2d 659, 665 (5th Cir. 1980)1 (“Any person in a position to attest
to the authenticity of certain records is competent to lay the foundation for the
admissibility of the records.”). While it is true, as Chadwick points out, May did
not expatiate on her specific job experience or how exactly the records were
maintained, we are mindful that “[t]he absence or extent of personal knowledge
regarding preparation of a business record affects the weight rather than the
admissibility of the evidence.” United States v. Page, 544 F.2d 982, 987 (8th Cir.
1976). May’s testimony was sufficient to lay the foundation for the records. 2
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
2
Chadwick also urges, even if the rest of May’s affidavit is admissible, paragraph 18 in
particular constitutes inadmissible hearsay. Paragraph 18 of May’s affidavit states “[a]t no point
did BANA reject Plaintiff’s tender or state that it would not accept Plaintiff’s tender.”
The district court did not address Chadwick’s specific hearsay challenge to paragraph 18,
presumably because Chadwick did not assert it until his reply brief in support of his motion to
strike. As the argument was not properly presented before the district court, we need not address
it here. Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009) (“Because the issue
or argument was not properly presented to the district court, we will not decide it.”).
In any event, though, we do not believe paragraph 18 of May’s affidavit contains
inadmissible hearsay. “Testimony that conveys a witness’s personal knowledge about a matter is
not hearsay.” United States v. Vosburgh, 602 F.3d 512, 539 n.27 (3d Cir. 2010). Though there is
a fine line between hearsay—i.e., “testimony that recounts what was spoken by an out-of-court-
declarant”—and testimony about matters within a witness’s personal knowledge, we are
convinced paragraph 18 is the latter. See id. Paragraph 18 simply proffers May’s personal
knowledge, acquired after reviewing BANA’s business records and files, that BANA did not
reject Chadwick’s tender or tell him it would not accept tender. Such testimony is admissible,
and the district court did not err in considering May’s affidavit in its entirety.
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B. Mutual Deviation
Chadwick next argues the district court erred in granting summary judgment
on his wrongful foreclosure claim because there was a jury question as to whether
the parties mutually departed from the terms of the Security Deed. Chadwick’s
theory is that BANA and Chadwick departed from the terms of the Security Deed
and formed a quasi-new agreement when BANA, on several occasions, accepted
late and partial payments from Chadwick. Under this quasi-new agreement,
BANA was not permitted to foreclose without providing Chadwick yet another
notice of its intent to do so. See O.C.G.A. § 13-4-4 (“Where parties, in the course
of the execution of a contract, depart from its terms and pay or receive money
under such departure, before either can recover for failure to pursue the letter of the
agreement, reasonable notice must be given to the other of intention to rely on the
exact terms of the agreement. The contract will be suspended by the departure
until such notice.”).
The district court correctly rejected this argument. There is no evidence the
parties agreed, much less mutually agreed, to depart from the terms of the Security
Deed. In fact, Paragraph 1 of the Security Deed (to which both parties assented)
expressly provides that “[BANA] may accept any payment or partial payment
insufficient to bring the Loan current, without waiver of any rights hereunder or
prejudice to its rights to refuse such payment or partial payments in the future.”
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Chadwick tries to circumvent the unequivocal anti-waiver provision of
Paragraph 1 by claiming it, too, is waived. Chadwick did not raise this argument
in his response to BANA’s motion for summary judgment before the district court.
His argument is therefore waived. See Hurley v. Moore, 233 F.3d 1295, 1297
(11th Cir. 2000) (“Arguments raised for the first time on appeal are not properly
before this Court.”). Even if Chadwick’s new argument were not waived, though,
it has no merit. BANA accepted only a small handful of late payments from
Chadwick over the course of several years, and each time Chadwick defaulted
BANA imposed late fees and warned Chadwick about the consequences of failing
to cure his breach. The undisputed evidence in this case is insufficient to establish
a waiver of the express terms of the Security Deed. See Crawford v. First Nat.
Bank of Rome, 223 S.E.2d 488, 490 (Ga. App. Ct. 1976) (“The mere fact that the
defendant paid some installments after they were due and in amounts less than the
stipulated sum, without any subsequent agreement to do so and without any
consideration therefor, would not be sufficient to show such a departure from the
original contract as to require notice from the plaintiff of intention to comply with
the strict terms thereof before the plaintiff could insist upon a forfeiture of the
same.” (quotation omitted)).
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C. Dual-tracking
Finally, Chadwick argues the district court erred in granting summary
judgment because there was a jury question as to whether BANA exercised its
power of sale unfairly. Specifically, Chadwick challenges BANA’s practice of
dual-tracking, whereby BANA simultaneously pursued a foreclosure on
Chadwick’s home while considering him for a loan modification. According to
Chadwick, BANA’s dual-tracking lulled him into thinking he was no longer at risk
of foreclosure. The subsequent foreclosure surprised him and was unfair.
Certain state legislatures, such as California, have passed laws forbidding
dual tracking. See, e.g., Cal. Civ. Code § 2923.6(c). Georgia law, however, does
not support a cause-of-action for wrongful foreclosure simply because a bank
pursues modification and foreclosure at the same time. Cf. Moore v. McCalla
Raymer, LLC, 916 F. Supp. 2d 1332, 1343 (N.D. Ga. 2013) (“seeking a loan
modification does not give Plaintiff a cause of action for wrongful foreclosure”).
The two cases Chadwick cites are not on point because in both cases the bank
affirmatively represented it would not pursue foreclosure, and then later
sandbagged the borrower. See, e.g., Joseph v. Fed. Home Loan Mortgage Corp.,
2012 WL 5429639, at *3 (N.D. Ga. Nov. 6, 2012) (wrongful foreclosure claim
when bank told borrower, in writing, to “stop making payments in order to receive
a permanent modification”); Stimus v. CitiMortgage, Inc., 2011 WL 2610391, at
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*5 (M.D. Ga. July 1, 2011) (wrongful foreclosure claim when bank told borrower
“the modification of her mortgage had been approved” and represented “the
property would not be foreclosed upon”). That is not the situation here, where
BANA has repeatedly expressed its intent to enforce the terms of the Security
Deed and pursue foreclosure.3 Accordingly, the district court did not err in
granting summary judgment in favor of BANA. 4
D. Attorney’s Fees
Chadwick’s claim for attorney’s fees is contingent on the success of his
underlying claims. See Davis v. Johnson, 634 S.E.2d 108, 110-11 (Ga. App. Ct.
2006). We have rejected Chadwick’s arguments as to the district court’s grant of
summary judgment on Chadwick’s underlying claims. Accordingly, the district
court did not err by rejecting Chadwick’s claim for attorney’s fees.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
3
Chadwick’s vague, self-serving testimony that he spoke with an unnamed BANA
representative on some unspecified date, and the representative told him not to send BANA any
money, is insufficient to establish a genuine issue of fact as to whether BANA misrepresented its
intentions to Chadwick. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”).
4
Chadwick also contends the district court erred in granting summary judgment because
“the credibility and authenticity of BANA’s evidence by itself presented a jury question.” We do
not address this argument because it was not raised or addressed below. See Smith, 572 F.3d at
1352.
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