               Case: 12-15498       Date Filed: 08/08/2014       Page: 1 of 10


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 12-15498
                              ________________________

                          D.C. Docket No. 1:10-cv-04054-JOF



KEYBANK NATIONAL ASSOCATION,

                                            Plaintiff–Counter Defendant-Appellee,

                                            versus

CURTIS HAMRICK,
TERESA HAMRICK,

                                            Defendants–Counter Claimants-Appellants.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________
                                   (August 8, 2014)

Before FAY, Circuit Judge, and HODGES ∗ and HUCK, ∗∗ District Judges.

PER CURIAM:


       ∗
          Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
       ∗∗
          Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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      Curtis and Teresa Hamrick (“the Hamricks”) appeal partial summary

judgment and an attorneys’ fee award in a breach-of-contract action brought by

KeyBank National Association (“KeyBank”), which financed their purchase of a

houseboat. We affirm.

            I. FACTUAL AND PROCEDURAL BACKGROUND

      In March 2008, the Hamricks signed a Marine Purchase Agreement for a 55-

foot Gibson houseboat from The HouseBoat Store, LLC (“HBS”) in Georgia.

They also signed a Consumer Note Installment Loan Note, Security Agreement,

and Disclosure Statement (“Loan Agreement”) with KeyBank. Under the Loan

Agreement, KeyBank loaned the Hamricks $240,000 to purchase the houseboat

with the Hamricks agreeing to 240 monthly payments of $1,808.69, commencing

in June 2008. The Hamricks agreed to “sign all documents . . . required to

perfect [KeyBank’s] security interest in the [c]ollateral.” Loan Agreement at 3.

The Loan Agreement contained a choice-of-law provision stating that it “shall be

governed by federal laws and the laws of the State of Ohio, without regard to

conflict of law rules.” Id. at 4. On March 24, 2008, KeyBank wired $240,000 to

HBS, and the Hamricks took possession of the houseboat.

      In May 2008, the Hamricks attempted to sell the houseboat on Craigslist but

received no offers. A year after the purchase of the houseboat, KeyBank

discovered HBS had failed to perfect KeyBank’s lien on the houseboat under its

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dealer agreement with HBS. 1 In March 2009, KeyBank requested that the

Hamricks sign documents required to perfect its lien. The Hamricks refused and

stopped making payments on the loan. At his deposition, Curtis Hamrick testified

he stopped making payments, because (1) KeyBank had failed to protect him in

dealing with HBS, (2) he alleged fraud in the transaction, 2 and (3) the Hamricks

“didn’t have the documents.” C. Hamrick Dep. at 162. Subsequently, he wrote a

letter to KeyBank’s attorney stating the Hamricks owned the houseboat outright

with no lien.

       With the Hamricks’ default and repudiation of their repayment obligation,

KeyBank accelerated the loan in July 2009. The Hamricks did not repay the

accelerated amounts due; they instead attempted to sell the houseboat. First, they

offered it for public sale in September 2009. They did not accept an offer of

$162,500. Second, Curtis Hamrick relisted the houseboat on Craigslist for

$135,000. He represented he believed he would sell the houseboat for

approximately $100,000. The Hamricks also impermissibly removed fixtures and



       1
          KeyBank had a dealer agreement with HBS, whereby KeyBank would finance boat
sales from HBS, which would perfect a first lien on boats purchased with the loan.
        2
          The Hamricks’ answers allege fraud in the sale of the houseboat, resulting in breaches
of purported fiduciary duties, which entitled them to rescission of the Loan Agreement. They
believed a former KeyBank employee, who had handled financing of the houseboat, had worked
with HBS in the sale of the houseboat. Consequently, they thought this made KeyBank liable in
disputes they had with HBS. The Hamricks’ fraud allegations concern their purchase of the
houseboat from HBS under the Marine Purchase Agreement rather than their financing the
purchase through KeyBank with the Loan Agreement at issue in this appeal.
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furnishings from the houseboat amounting to $20,000, which constituted security

under the Loan Agreement.

       Confronting impairment to its collateral, KeyBank exercised its right under

the Loan Agreement to perfect its security interest. KeyBank notified the

Hamricks it had accelerated the amount they owed under the Loan Agreement.

Curtis Hamrick admitted he had received the acceleration notice and refused to pay

the full amount owed. Consequently, KeyBank repossessed the houseboat.

KeyBank marketed and sold the houseboat for $155,000, which left a deficiency

under the Loan Note of $89,813.91, plus $21,221.52 for repossession, storage,

transport, interest, and other fees, cumulatively totaling $111,035.43.

       On December 14, 2010, KeyBank brought a diversity action against the

Hamricks and HBS 3 in the Northern District of Georgia to recover the deficiency

and asserted three claims against the Hamricks: breach of contract regarding the

Loan Agreement, “amounts due,” and attorneys’ fees. The Hamricks filed their

answer on January 4, 2011, an amended answer on January 21, 2011, and a second

amended answer and counterclaims on February 24, 2011.4 In none of the

Hamricks’ answers and counterclaims do they raise lack of notice as an affirmative

defense. Given KeyBank’s pending motions to dismiss and to strike the Hamricks’


       3
          The suit against HBS was based on provisions in the dealer agreement.
       4
          The Hamricks failed to obtain leave of court under Federal Rule of Civil Procedure 15
prior to filing their second amended answer and counterclaims.
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second amended answer and counterclaims, the Hamricks filed a notice of

voluntary dismissal of all their counterclaims on March 28, 2011. On November

30, 2011, KeyBank moved for partial summary judgment on its breach-of-contract

and “amounts due” claims. In their January 2, 2012, opposition to KeyBank’s

motion for partial summary judgment, the Hamricks first raised lack of notice as a

defense to KeyBank’s deficiency claims. They did not raise as a defense that the

sale price of the houseboat was commercially unreasonable.

      On August 17, 2012, the district judge granted KeyBank’s motion for partial

summary judgment for its breach of the Loan Agreement and “amounts due”

claims. The judge found (1) the Hamricks had signed the Loan Agreement; (2) the

Loan Agreement accurately memorializes the Hamricks’ agreement with

KeyBank; (3) KeyBank funded the loan in full satisfaction of its responsibilities

under the Loan Agreement; (4) the Hamricks defaulted on their repayment

obligations; and (5) KeyBank had not recouped all the funds, interest, fees, and

expenses the Hamricks owed under the Loan Agreement. The judge further found

the Hamricks did not dispute the amount KeyBank received for the sale of the

houseboat or the resulting deficiency. The judge noted Georgia contracting parties

may stipulate that the laws of another jurisdiction will govern the transaction,

unless the law is contrary to Georgia public policy; Ohio law for simple breach-of-

contract claims is not contrary to Georgia public policy.

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      The judge additionally awarded KeyBank its costs and attorneys’ fees

incurred in responding to the Hamricks’ discovery requests. The parties filed a

proposed final judgment in which the Hamricks consented to judgment being

entered against them on KeyBank’s claim for attorneys’ fees and costs for

$190,077.71. On September 24, 2012, the judge adopted the proposal on which

parties had agreed and entered the final judgment amount to which they had

consented. The Hamricks appeal both the district judge’s granting partial summary

judgment and awarding attorneys’ fees to KeyBank.

                                 II. DISCUSSION

A. Partial Summary Judgment

      The Hamricks contend partial summary judgment improperly was granted to

KeyBank, because there were genuine issues of material fact concerning

KeyBank’s compliance with the notice provisions of Ohio. We review de novo a

district judge’s grant of summary judgment. Holloman v. Mail-Well Corp., 443

F.3d 832, 836 (11th Cir. 2006). Summary judgment or partial summary judgment

is appropriate, “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). All evidence is viewed in the light most favorable to the non-

movant. Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224-25

(11th Cir. 2002). A district judge must enter “‘summary judgment against a party

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who fails to make a showing sufficient to establish the existence of an essential

element to that party’s case, and on which that party will bear the burden of proof

at trial.’” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008) (per curiam)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986)).

      The Hamricks argue the district judge erred in determining they had waived

their alleged affirmative defense that KeyBank had failed to meet the legal notice

requirements for sale of the houseboat. After repossessing the houseboat,

KeyBank sent a certified letter providing notice of the auction to the Hamricks at

“144 Indian Beach Trail RR 144[,] Jasper, GA 30143.” C. Hamrick Dep. Ex. 22.

This was the Hamricks’ home address but not their mailing address. 5 The

Hamricks claimed that they had not received the letter, because the address

is not deliverable by the United States Postal Service.

      It is undisputed the Hamricks failed to raise their notice defense until they

responded to KeyBank’s motion for partial summary judgment. With

opportunities to raise this affirmative defense in their answer as well as their first

and second amended answers, the district judge noted the “Hamricks fail to make

any arguments as to why the court should excuse this failure.” Partial Summ. J.

Order at 8 n.6. When jurisdiction is premised on diversity, procedural aspects of


      5
          The Hamricks received mail at a Post Office Box.
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the case are controlled by federal law, while state law governs substantive issues.6

Hammer v. Slater, 20 F.3d 1137, 1140 (11th Cir. 1994) (applying Georgia law).

       Under Federal Rule of Civil Procedure 8(c), defendants are required to

“affirmatively state any avoidance or affirmative defense” in their pleadings. Fed.

R. Civ. P. 8(c)(1). “Failure to plead an affirmative defense generally results in a

waiver of that defense.” Latimer v. Roaring Toyz, Inc., 801 F.3d 1224, 1239 (11th

Cir. 2010); see Hassona v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.

1988) (“[T]he general rule is that, when a party fails to raise an affirmative

defense in the pleadings, that party waives its right to raise the issue at trial.”).

When an affirmative defense initially was raised pursuant to a summary judgment

motion, we determined that the defendant’s “failure to specifically plead the

defense in its answer or amended answer results in the waiver of this defense.”

Easterwood v. CSX Transp., Inc., 933 F.2d 1548, 1551 (11th Cir. 1991) (citing

Morgan Guar. Trust Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. Unit B

1981)). By failing to assert their notice argument in any of their three answers, 7




       6
          Significantly, the Loan Agreement specifically states it also is governed by federal
law. Loan Agreement at 4.
        7
          The Hamricks’ notice argument also is undermined by the facts, because the purpose of
notice is to ensure commercially reasonable proceeds from the sale of collateral. The $155,000
KeyBank received for selling the houseboat was only $7,500 less than the $162,500 offer the
Hamricks initially had received for the houseboat and rejected. In addition, the Hamricks had
removed fixtures from the houseboat worth $20,000.
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we conclude the Hamricks have waived this affirmative defense. 8 Because of this

waiver, the Hamricks could not establish their claims related to their Loan

Agreement with KeyBank, and the district judge properly granted partial summary

judgment to KeyBank.

B. Attorneys’ Fee Award

       The Hamricks contend the attorneys’ fee award must be vacated, because the

fees should not have been awarded under a Georgia statute, O.C.G.A. §13-6-11.

The judge did not decide the claim for attorneys’ fees, because Georgia law

requires that it be submitted to a jury. KeyBank had sought attorneys’ fees from

the Hamricks, who had four different attorneys in the course of this litigation, for

       8
          The Hamricks’ attempt to raise a choice-of-law issue concerning Georgia law, the state
of the houseboat sale, and Ohio, the applicable law for the Loan Agreement, is unavailing. Both
Georgia and Ohio have adopted Revised Article 9 of the Uniform Commercial Code
(“U.C.C.”), which governs secured transactions. Ohio Rev. Code Ann. § 1309.101; Ga. Code
Ann. § 11-9-101. In neither state is lack of notice a bar to recovery; it instead affects the
calculation of a deficiency resulting from the sale of collateral arising from a consumer
transaction. While model provision U.C.C. § 9-626(a) describes the calculation of
deficiencies, the preface states: “In an action arising from a transaction, other than a consumer
transaction . . . .” Although the model provision deals only with non-consumer transactions,
Ohio’s statute deletes the phrase “other than a consumer transaction.” Compare id., with Ohio
Rev. Code Ann. § 1309.626(a). Georgia’s statute does not vary from U.C.C. § 9-626(a), but
courts in Georgia have applied the same rule in consumer transactions, where a deficiency is
involved. See Emmons v. Burkett, 353 S.E.2d 908, 911 (Ga. 1987); see also Ga. Code Ann.§
ll-9-626(b) (“The limitation . . . to transactions other than consumer transactions is intended
to leave to the court the determination of proper rules in consumer transactions.”).
        The Hamricks fare no better by arguing a secured creditor’s obligation to provide notice
is a condition precedent to the recovery of a deficiency judgment and characterizing notice as a
condition precedent under Ohio law. Under Federal Rule of Civil Procedure 9(c), “when
denying that a condition precedent has occurred or been performed, a party must do so with
particularity.” Fed. R. Civ. P. 9(c). In the Hamricks’ operative answer, the only condition
precedent they denied had occurred related to the formation of the Marine Purchase
A greement, not to the Loan Agreement or deficiency action. Nothing in their operative
answer was sufficient to inform KeyBank the Hamricks denied receiving notice.
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sanctions concerning discovery and for bad faith and stubborn litigiousness.

Rather than go to trial on that claim, the Hamricks consented to the entry of a

final judgment of $111,221.43 for the breach of contract and $190,077.71 in

attorneys’ fees.

      The Hamricks made no argument to the district judge regarding whether

attorneys’ fees were appropriate; instead, they consented to the entry of the fees

in the final judgment. Although they reserved their rights of appeal, “[i]t is well

settled that issues not raised in the district court in the first instance are

forfeited.” Entrekin v. Internal Med. Assocs. of Dothan, P.A., 689 F.3d 1248,

1252 (11th Cir. 2012) (alteration in original) (citation and internal quotation

marks omitted). Because the Hamricks did not contest KeyBank’s entitlement to

or the basis for the attorneys’ fee award before the district judge, they cannot

raise either issue on appeal.

      AFFIRMED.




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