616 F. App'x 944
11th Cir.2015Background
- Chadwick refinanced his Georgia home in 2003 with a Promissory Note and Security Deed in favor of Bank of America, N.A. (BANA). Default occurred in 2009 after missed payments; BANA sent multiple notices of intent to accelerate and charged late fees.
- Chadwick made a single partial payment in Feb 2010, later applied for loan modifications in 2010 and 2011, but failed to provide all required documentation; BANA repeatedly warned that foreclosure could proceed.
- McCalla Raymer (BANA’s foreclosure agent) published foreclosure notices and scheduled a sale for Sept 6, 2011; Fannie Mae declined to postpone the sale after a final modification request.
- Chadwick’s property was sold at a non-judicial foreclosure sale to BANA for the outstanding indebtedness on Sept 6, 2011.
- Chadwick sued (including wrongful foreclosure); at summary judgment BANA submitted an affidavit from Brianna May. The district court denied Chadwick’s motion to strike May’s affidavit and granted summary judgment to BANA; Chadwick appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility / surprise witness (May affidavit) | May was a surprise witness; her affidavit is based on hearsay | May previously verified interrogatory responses and, as BANA’s authorized rep, could authenticate business records | Affidavit admissible; May not a surprise witness and her testimony properly laid foundation for business records |
| Mutual deviation / waiver of Security Deed terms | Repeated acceptance of late/partial payments created a new agreement requiring fresh notice before foreclosure (O.C.G.A. §13-4-4) | Security Deed expressly permitted acceptance of partial payments without waiving rights; no mutual departure shown | No mutual deviation or waiver; summary judgment for BANA affirmed |
| Dual-tracking / wrongful foreclosure based on simultaneous modification and foreclosure | Dual-tracking lulled Chadwick into believing foreclosure was unlikely; thus foreclosure was unfair | Georgia law does not recognize wrongful foreclosure solely from dual-tracking; no affirmative promise to forbear here | No wrongful foreclosure: absent an explicit misrepresentation to forbear, dual-tracking alone does not create a claim |
| Attorney's fees | Contingent on success of underlying claims | Underlying claims failed | Attorney’s fees denied as contingent claim failed |
Key Cases Cited
- Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725 (7th Cir. 2004) (notice that a witness has relevant information can preclude a surprise-witness claim)
- Rosenberg v. Collins, 624 F.2d 659 (5th Cir. 1980) (persons in position to attest to records may lay foundation for business records)
- United States v. Page, 544 F.2d 982 (8th Cir. 1976) (lack of detailed personal knowledge goes to weight, not admissibility, of business-records foundation)
- Crawford v. First Nat. Bank of Rome, 223 S.E.2d 488 (Ga. Ct. App. 1976) (partial or late payments alone do not establish a contractual departure requiring notice)
- Scott v. Harris, 550 U.S. 372 (2007) (courts need not adopt self-serving factual versions blatantly contradicted by the record)