[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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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-courtdeclarant”—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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