                Case: 13-15183        Date Filed: 09/30/2014       Page: 1 of 6


                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT


                                         No. 13-15183


                          D.C. Docket No. 4:12-cv-00042-CDL

JAMIE ROURK,

                                                            Plaintiff - Appellant,

                                             versus

BANK OF AMERICAN NATIONAL
ASSOCIATION,

                                                            Defendant - Appellee.


                      Appeal from the United States District Court
                          for the Middle District of Georgia



                                    (September 30, 2014)

Before MARTIN, Circuit Judge, and RESTANI, * Judge, and HINKLE, ** District
Judge.

*
 Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
**
   Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida,
sitting by designation.
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PER CURIAM:

       Appellant Jamie Rourk appeals from the district court’s grant of summary

judgment against her on all claims stemming from Appellee Bank of America

National Association’s (“BANA”) actions with respect to a mortgage it held on

Rourk’s home. The district court held that Rourk’s failure to make any payment

on her mortgage for over two years caused her default and put her into foreclosure.

Because we agree that any damages stem from Rourk’s own default, we affirm. 1

       Rourk argues that BANA was the first party to breach the note and deed

when it failed to apply payments made during Rourk’s bankruptcy properly,

rejected Rourk’s post-bankruptcy April to July 2010 payments, and sent conflicting

reinstatement letters. Rourk contends BANA’s breach caused her inability to

tender payments and excused her subsequent breaches because, although she was

willing to “pay whatever amounts were due,” she “could not reasonably determine

on her own the amount needed to cure her default and avoid foreclosure.”

       BANA responds that even if it breached the note and deed during Rourk’s

bankruptcy, it cured any breach when it made Rourk’s account current in August

2010, and Rourk’s subsequent default by failing to make any payment for almost

two years cuts off any potential claim for damages. We agree.


1
 The district court had jurisdiction under 28 U.S.C. §§ 1331, 1332(a). We have jurisdiction
under 28 U.S.C. § 1291, and we review the district court’s grant of summary judgment de novo.
See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
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      Under Georgia law, a borrower may not withhold mortgage payments, even

when there is a good faith dispute as to the amount owed. Mitchell v. Interbay

Funding, LLC, 630 S.E.2d 909, 911 (Ga. 2006) (“[E]ven if a bona fide controversy

existed as to liability for this additional amount, the [borrowers] were obligated to

pay the monthly sum they admittedly owed under the promissory note.”); see

Grebel v. Prince, 501 S.E.2d 538, 542 (Ga. 1998) (“Where there is bona fide

controversy over amount required to satisfy debtor’s obligation, debtor should be

required to tender only such sums as are admittedly due under the note, not all

sums which may be claimed by creditor as is due.” (internal quotation marks and

brackets omitted)).

      Although tender of mortgage payments, like other contractual obligations

may be excused, such excuse is permitted only under limited circumstances: “If the

nonperformance of a party to a contract is caused by the conduct of the opposite

party, such conduct shall excuse the other party from performance.” Ga. Code

Ann. § 13-4-23 (2013); see Grebel, 501 S.E.2d at 542 (“[T]ender is unnecessary

where the person to whom the money is due states that the tender would be refused

if made”). Under this standard, the non-breaching party’s performance must have

been rendered “useless or impossible” in order to be excused. Ott v. Vineville

Mkt., Ltd., 416 S.E.2d 362, 363 (Ga. Ct. App. 1992); see L.D.F. Family Farm, Inc.

v. Charterbank, 756 S.E.2d 593, 598 (Ga. Ct. App. 2014) (holding that a debtor’s


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nonperformance must have been caused by the conduct of the lender, which made

performance useless or impossible); see also Moody Nat’l RI Atlanta H, LLC v.

RLJ III Fin. Atlanta, LLC, No. 1:09-cv-3676-WSD, 2010 WL 163296 (N.D. Ga.

Jan. 14, 2010) (rejecting mortgagor’s argument that mortgagee’s demand of default

interest caused and excused mortgagor’s nonperformance in not making a timely

payment, stating that mortgagor “took a calculated risk by not making a timely

payment, knowing that doing so was a breach of the Note”).

       Under Mitchell, Rourk had an obligation to pay at least what she admittedly

owed, that is at least her monthly $394.83 payments. Rourk’s nonperformance

cannot be excused by the bank’s alleged breaches in the past. First, the bank cured

any potential breach caused by mishandling Rourk’s account during her

bankruptcy2 or in rejecting her post-bankruptcy payments when it made her

account current as of April 2010, effective August 16, 2010.3 Second, the bank

never indicated definitively that it would not accept Rourk’s payments, even if they

were less than what she actually owed. The sole reason it had rejected previous

payments was because they were not made with certified funds, not because they

2
  Because there is no evidence that BANA did not apply each payment made during bankruptcy
and in fact later provided Rourk with an additional credit for her escrow deficiency, Rourk’s
claim of conversion touching these issues fails as a matter of law. To the extent her conversion
claim goes to proceeds of the foreclosure sale, Rourk presented no evidence and failed to make a
developed argument in her brief that there were any proceeds from the foreclosure sale or that
BANA unlawfully retained them.
3
  Although Rourk received conflicting reinstatement amounts, these were all before the August
16, 2010, “reset date.” Apparently, although some past monthly payments were still due, Rourk
was not considered to be in default as of that date.
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were partial payments.

      The cases Rourk relies upon do not contradict Mitchell. The court in Grebel

held that even if the borrower’s tender was insufficient before the foreclosure, it

did not bar his claim to set aside the foreclosure sale as wrongful, because where

there is a bona fide controversy as to the amount of debt owed, the borrower is

required to tender only the amount admittedly due, not what the creditor claims is

due. 501 S.E.2d at 539, 542. Unlike here, in Grebel, the borrower tendered the

undisputed amount owed, but refused to pay $50,000 in unearned interest. Id. The

loan provider refused to accept the tender, categorically stating that it would refuse

any payment other than one that included the disputed interest. Id. at 540.

Notably, the borrower in Grebel also tendered the undisputed amount to the court.

Id. at 539.

      Similarly, Rourk’s reliance on Catalan v. GMAC Mortg. Corp., 629 F.3d

676, 692 (7th Cir. 2011), is misplaced. In Catalan, borrowers who were not

notified of a transfer of their loan to another loan servicer continued to make their

monthly payments to the former loan servicer, and they delayed a single monthly

payment when their previous payment was refused. 629 F.3d at 681–92. The

borrowers then timely paid the reinstatement amount the new loan servicer

provided them, plus additional funds. Id. at 691–92. The Catalan court held there

was an issue of fact as to whether the borrower’s late payment was excused by the


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bank’s breach. Id. Catalan is distinguishable in that the borrowers in that case

continued to make their payments and paid the amount specified to bring their

account current. Rourk, by contrast, failed to attempt to make any payments after

August 2010. Even if Rourk was confused as to the exact amount due, Rourk

knew that at the very least she owed the April through July 2010 payments and

$394.83 per month after her account was made current in August.

       Under these circumstances, Rourk had an obligation to continue making

payments she knew she owed, and Rourk’s nonpayment is fatal to her claim for

breach of contract and wrongful foreclosure, as her “alleged injury was solely

attributable to [her] own acts or omissions.” Heritage Creek Dev. Corp. v.

Colonial Bank, 601 S.E.2d 842, 845 (Ga. Ct. App. 2004). The same holds true of

her claim under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e)(2)

(2010), because even if BANA failed to properly respond to an adequate qualified

written request, which we do not decide, such a failure in no way prevented Rourk

from at least making the admittedly owed monthly payments. Accordingly, the

district court’s grant of summary judgment in favor of BANA on all claims is


       AFFIRMED. 4




4
 Because we conclude that Rourk’s failure to continue to make her monthly payments is fatal to
her claims, we do not reach many of the legal issues briefed by the parties and discussed in the
concurrently issued opinion in Bates v. JPMorgan Chase Bank, NA, No. 13-15340.
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