          Case: 14-14555   Date Filed: 07/08/2015   Page: 1 of 12


                                                      [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 14-14555
                        Non-Argument Calendar
                      ________________________

                  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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