Chadwick v. Bank of America, N.A.
Filing
86
OPINION AND ORDER denying 65 Motion for Partial Summary Judgment, granting 67 Motion for Summary Judgment, denying 72 Motion to Strike, denying 73 Motion to Strike. Signed by Judge Thomas W. Thrash, Jr on 9/9/14. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WAYNE CHADWICK,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:12-CV-3532-TWT
BANK OF AMERICA, N.A.,
Defendant.
OPINION AND ORDER
This is an action for wrongful foreclosure. It is before the Court on the
Plaintiff’s Motion for Partial Summary Judgment Regarding Certain of Defendant’s
Affirmative Defenses [Doc. 65], the Defendant’s Motion for Summary Judgment
[Doc. 67], the Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment
[Doc. 72], and the Plaintiff’s Motion to Strike the Summary Judgment Affidavit of
BriAnna May [Doc. 73]. For the following reasons, the Plaintiff’s Motion for Partial
Summary Judgment is DENIED. The Defendant’s Motion for Summary Judgment
is GRANTED. The Plaintiff’s Motion to Strike Defendant’s Motion for Summary
Judgment is DENIED, and the Plaintiff’s Motion to Strike the Summary Judgment
Affidavit of BriAnna May is DENIED.
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I. Background
In May of 2003, Plaintiff Wayne Chadwick was the owner of the home at 4725
Spot Road in Cumming, Georgia.1 On May 9, 2003, the Plaintiff obtained a loan from
GreenPoint Mortgage Funding, Inc., by executing a promissory note for $157,000 in
order to refinance his existing mortgage loan.2 The Plaintiff also executed a Security
Deed conveying title in the property to Mortgage Electronic Registration Systems
(“MERS”).3 On March 6, 2010, MERS assigned all interest in the Security Deed to
BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP,
which is now Bank of America, N.A. (“BANA”).4 BANA was also the servicer of the
loan at all times relevant to this litigation.5
In 2009, the Plaintiff defaulted on the loan by failing to make three consecutive
monthly payments.6 The Plaintiff admits that he defaulted because he was unable to
1
Pl.’s Statement of Each Add’l Material Fact That Presents a Genuine
Issue for Trial ¶¶ 1, 2 [hereinafter, “Pl.’s Statement of Facts”].
2
Def.’s Statement of Undisputed Material Facts ¶ 1.
3
Id. ¶ 2.
4
Id. ¶ 5.
5
Id. ¶ 6.
6
Id. ¶ 7.
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pay.7 BANA sent the Plaintiff Notices of Intent to Accelerate the loan on May 18,
2009, August 17, 2009, and October 19, 2009.8 By February of 2010, the Plaintiff was
in arrears on his loan by an amount of $5,252.78 and BANA sent another Notice of
Intent to Accelerate on February 8, 2010.9 Both the Plaintiff and the Defendant agree
that each Notice contained the information required under Paragraph 22 of the
Security Deed.10 Specifically, they provided notice of the default, the action required
to cure the default, a date not less than 30 days from the date of the notice by which
the default had to be cured, that failure to cure could result in acceleration of the loan
and sale of the property, and that the Plaintiff had the right to reinstate the loan after
acceleration.11
Under the February 2010 Notice, the Plaintiff had until March 10, 2010, to cure
his default.12 After that Notice, the Plaintiff made one payment of $1,005.29 on
7
Chadwick Dep. at 22, 25.
8
Def.’s Statement of Undisputed Material Facts ¶ 9; Pl.’s Statement of
Facts ¶¶ 13, 16, 19.
9
Def.’s Statement of Undisputed Material Facts ¶¶ 9, 11; Pl.’s Statement
of Facts ¶¶ 22, 23.
10
Pl.’s Statement of Facts ¶¶ 14, 17, 20, 23.
11
Def.’s Statement of Undisputed Material Facts ¶ 10.
12
Id. ¶ 11.
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February 26, 2010.13 The Plaintiff admits that he did not tender the full $5,252.78
owed on his loan as of February 2010.14 He claims, however, that he called BANA and
offered to pay the full amount, but was told that it would not be accepted.15 The
Defendant disputes this assertion, claiming that it never informed the Plaintiff that his
tender would not be accepted.16
After the Plaintiff failed to cure the default, the Defendant retained McCalla
Raymer to conduct a non-judicial foreclosure sale of the property.17 Initially, a
foreclosure sale was scheduled for June 1, 2010, but the Plaintiff applied for a loan
modification in May of 2010.18 The investor, Federal National Mortgage Association
(“Fannie Mae”), approved postponement of the June 2010 sale pending review of the
Plaintiff’s loan modification.19 No modification review occurred in 2010 because the
Plaintiff filed for bankruptcy.20 After dismissal of his bankruptcy petition, the Plaintiff
13
Id. ¶ 13.
14
Id. ¶ 14; Chadwick Dep. at 23.
15
Chadwick Dep. at 38.
16
Def.’s Statement of Undisputed Material Facts ¶ 15.
17
Id. ¶ 16.
18
Id. ¶ 17.
19
Id. ¶ 18.
20
Id. ¶ 20.
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again applied for a loan modification in April of 2011.21 The Defendant received
some, but not all of the documents necessary to complete a modification review.22
Subsequently, on June 30, 2011, McCalla Raymer sent the Plaintiff a letter
advising that the full debt was due to BANA, that he could contact McCalla Raymer
for reinstatement and payoff information, and that he had 30 days to dispute the debt
or request verification of the debt.23 On July 6, 2011, McCalla Raymer sent the
Plaintiff a second letter, which detailed several options available to cure his default,
including a repayment plan and loan modification.24 McCalla Raymer then sent a
Notice of Foreclosure Sale on July 26, 2011,25 and published a notice of sale in the
Forsyth County legal organ for four consecutive weeks prior to the September 6, 2011
foreclosure sale date.26 BANA requested that Fannie Mae postpone the September 6
sale, but Fannie Mae did not grant that request.27
21
Id. ¶ 21.
22
Id. ¶ 22.
23
Id. ¶ 23.
24
Id. ¶ 24; Reyes Dep. Ex. 11.
25
Def.’s Statement of Undisputed Material Facts ¶ 25.
26
Id. ¶ 26.
27
Id. ¶ 27.
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The property was sold at a public foreclosure sale on September 6, 2011.28
BANA was the highest bidder at $171,795.34, which represented the Plaintiff’s
indebtedness on the loan.29 The Defendant admits that the fair market value of the
property at the time of the foreclosure sale was at least $283,000 to $284,000.30 On
September 28, 2011, BANA recorded a special warranty deed transferring all interest
in the property to Fannie Mae.31 On August 30, 2012, the Plaintiff and Fannie Mae
filed a Consent Final Judgment and Writ of Possession, which granted Fannie Mae a
writ of possession effective September 15, 2012.32
28
Def.’s Statement of Undisputed Material Facts ¶ 35.
29
Id. ¶¶ 35, 36.
30
Def.’s Resp. to Pl.’s Statement of Facts ¶ 104.
31
Def.’s Statement of Undisputed Material Facts ¶ 37.
32
Id. ¶ 38.
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II. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law.33 The court should view the
evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.34 The party seeking summary judgment must first identify grounds to
show the absence of a genuine issue of material fact.35 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.36 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”37
33
FED. R. CIV. P. 56(c).
34
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
35
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
36
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
37
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
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III. Discussion
A.
The Defendant’s Motion for Summary Judgment
1.
The Plaintiff’s Motion to Strike the Defendant’s Entire
Motion
As a threshold matter, pursuant to its Order granting the Defendant’s Motion
for Leave to File Excess Pages [Doc. 71], this Court denies the Plaintiff’s Motion to
Strike the Defendant’s Motion for Summary Judgment.
2.
The Plaintiff’s Motion to Strike the Affidavit of BriAnna May
In support of its Motion for Summary Judgment, BANA offered the Affidavit
of BriAnna May. The Plaintiff moves to strike the Affidavit [Doc. 73], claiming that
Ms. May was a “surprise witness,” and that her testimony is based on inadmissible
hearsay.38 Pursuant to the 2010 Amendments to the Federal Rules of Civil Procedure,
motions to strike are not a proper method for challenging the admissibility of evidence
on summary judgment.39 Instead, a party should object to the evidence, and the court
will determine which evidence is inadmissible. The court may then disregard it.40
Before considering the Defendant’s Motion for Summary Judgment, this Court must
therefore determine whether it may properly consider Ms. May’s Affidavit.
38
Br. in Supp. of Pl.’s Mot. to Strike the Aff. of BriAnna May, at 1.
39
FED. R. CIV. P. 56 advisory committee’s note of 2010.
40
FED. R. CIV. P. 56(c)(2).
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Generally, evidence that would be inadmissible at trial may not be considered
on a motion for summary judgment.41 Regarding surprise witnesses, the court has
discretion to exclude their testimony at trial after considering the importance of the
testimony, the reason for the failure to disclose, and the prejudice to the other party.42
Additionally, affidavits must be based on personal knowledge.43 Hearsay evidence
may be considered only if it can be reduced to admissible form at trial.44
a.
Ms. May is not a Surprise Witness
The Plaintiff contends that he is prejudiced by the Defendant’s use of Ms.
May’s Affidavit in support of its Motion for Summary Judgment because he did not
depose Ms. May.45 The Plaintiff undercuts his own argument, however, by attaching
to his Motion to Strike BANA’s First Supplemental Responses to Plaintiff’s First Set
41
FED. R. CIV. P. 56(c)(4); Corwin v. Walt Disney Co., 475 F.3d 1239,
1249 (11th Cir. 2007).
42
R.M.R. ex rel. P.A.L. v. Muscogee Cnty. Sch. Dist., 165 F.3d 812, 818
(11th Cir. 1999).
43
FED. R. CIV. P. 56(c)(4).
44
Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012)
(quoting Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999)); McMillian v.
Johnson, 88 F.3d 1573, 1584-85 (11th Cir. 1996), aff’d sub nom. McMillian v.
Monroe Cnty., Ala., 520 U.S. 781 (1997).
45
Br. in Supp. of Pl.’s Mot. to Strike the Aff. of BriAnna May, at 13-14.
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of Interrogatories, which were verified by Ms. May on February 21, 2014.46 The
Plaintiff therefore had notice of Ms. May’s knowledge of the case as early as
February, giving ample time to depose her before discovery ended in May. Ms. May
is not a surprise witness and allowing her testimony does not prejudice the Plaintiff.
b.
Hearsay
The Plaintiff objects to Ms. May’s Affidavit on the grounds the Defendant
failed to provide notice of intent to offer business records under Federal Rule of
Evidence 902(11), and claims that even if notice had been provided, the affidavit is
based on inadmissible hearsay.47 For the reasons that follow, this Court finds that the
evidence can be reduced to an admissible form at trial and will consider it in ruling on
the pending motion for summary judgment.
First, the Plaintiff’s argument under Rule 902(11) is without merit. That Rule
provides a method for self-authentication of certain documents, including business
records.48 Under Rule 902(11), business records may be offered at trial through the
certification of a custodian in lieu of presenting live foundational testimony.49 Before
46
Id. at Ex. C, p. 12.
47
Pl.’s Mot. to Strike the Aff. of BriAnna May, at 1.
48
FED. R. EVID. 902(11).
49
Id.; see also FEDERAL COURTROOM EVIDENCE § 902.11 (4th ed.).
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presenting records through a certification, a party must give notice.50 Notice is not
required for all business records, simply those being authenticated without live
testimony.51 Because live testimony is not used on a motion for summary judgment
the same way as at trial, it follows that Rule 902(11) does not apply in the way the
Plaintiff argues.
Additionally, even if BANA were attempting to authenticate the records under
Rule 902(11), the notice provisions could be met during trial.52 In fact, the notice
required is only enough to give the other party a fair opportunity to challenge the
certification – there is no specific time requirement.53 Given the Eleventh Circuit’s
directive that evidence may be considered on summary judgment as long as it can be
presented in admissible form at trial,54 Ms. May or another BANA employee could
50
FED. R. EVID. 902(11).
51
Id.; see also FEDERAL COURTROOM EVIDENCE § 902.11.
52
FEDERAL COURTROOM EVIDENCE § 902.11 (“Thus, it appears that, in the
absence of a directive from the court, notice may be given during trial before the
records would be offered.”).
53
Id.
54
Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012)
(quoting Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999)); McMillian v.
Johnson, 88 F.3d 1573, 1584-85 (11th Cir. 1996), aff’d sub nom. McMillian v.
Monroe Cnty., Ala., 520 U.S. 781 (1997).
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prepare a certification prior to trial or testify on the stand to the foundational elements
to admit business records.
Furthermore, there are no authenticity issues with the records presented in the
May Affidavit. Discovery responses are generally considered self-authenticating in
their own right.55 All seven of the attachments to Ms. May’s Affidavit were produced
during discovery. In fact, three of the documents are exhibits to the Plaintiff’s
Complaint: the Security Deed (Attachment 1),56 the Assignment of the loan
(Attachment 3),57 and the Deed Under Power (Attachment 7).58 Attachment 1, the
Plaintiff’s Promissory Note, is referenced in the Plaintiff’s Statement of Material Facts
Presenting Issues for Trial and the Defendant admitted that it is genuine.59 The
Plaintiff admits that the Notices of Intent to Accelerate (Attachment 5) are the ones
that he received.60 Attachment 4, the Loan Payment History, was produced in
55
11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 56.92
(Matthew Bender 3d ed. 2014).
56
Pl.’s Compl., Ex. A.
57
Pl.’s Compl., Ex. B.
58
Pl.’s Compl., Ex. F.
59
Pl.’s Statement of Facts ¶ 6.
60
Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts ¶ 12.
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discovery and utilized by the Plaintiff when taking the deposition of Luis Reyes.61 The
Loan Servicing Notes, Attachment 6, were also produced in discovery and used by the
Plaintiff in the Deposition of Luis Reyes.62
With regard to admissibility of the documents and Ms. May’s statements, Ms.
May provides the foundation required by Federal Rule of Evidence 803(6). Rule
803(6) requires that business records (1) be made at or near the time of the activity by
someone with knowledge (or from information transmitted by someone with
knowledge), (2) be kept in the course of regularly conducted activity, (3) be made as
a regular practice, and (4) not indicate a lack of trustworthiness.63 The records must
be introduced by a custodian, qualified witness, or be accompanied by a Rule 902
certification.64 The court has broad discretion in deciding whether to admit business
records.65
61
Reyes Dep., Ex. 50.
62
Id. Ex. 51.
63
FED. R. EVID. 803(6).
64
Id.
65
Allen v. Safeco Ins. Co. of Am., 782 F.2d 1517, 1519 (11th Cir. 1986)
(citing Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980)).
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Ms. May states in her affidavit that she is familiar with BANA’s books and
records as well as its record keeping policies.66 She goes on to state the foundation
required by Rule 803(6).67 The Court finds no circumstances indicating such a lack of
accuracy in any of BANA’s records as to refuse to consider them on summary
judgment. There are, as the Plaintiff has pointed out, discrepancies between
documents. Discrepancies create factual issues for trial, but in this case, they do not
create such concerns as to make the evidence inadmissible. Rather, they go to the
weight of the evidence. The Plaintiff’s Motion to Strike is denied and this Court will
consider evidence from Ms. May’s affidavit in deciding the Defendant’s Motion for
Summary Judgment.
3.
The Merits of the Defendant’s Motion
a.
Wrongful Foreclosure
“In Georgia, a plaintiff asserting a claim of wrongful foreclosure must establish
a legal duty owed to it by the foreclosing party, a breach of that duty, a causal
connection between the breach of that duty and the injury it sustained, and
66
May Aff. ¶ 3.
67
Id. ¶ 3(b)-(e).
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damages.”68 A foreclosing party has a duty to exercise the power of sale fairly and in
good faith.69 The Plaintiff claims that the Defendant breached this duty by pursuing
a loan modification and foreclosure at the same time and by failing to give notice of
strict compliance with the contract after alleged deviation.
The Plaintiff argues that the Defendant breached its duty to act in good faith by
proceeding with foreclosure while also allowing the Plaintiff to pursue a loan
modification.70 Precedent from this Court, however, does not require a bank to
respond to a loan modification request prior to foreclosure.71 In fact, seeking a loan
modification is not enough to give the Plaintiff a cause of action for wrongful
68
Racette v. Bank of Am., N.A., 318 Ga. App. 171, 174 (2012) (internal
quotation marks omitted).
69
Id.; see also O.C.G.A. § 23-2-114 (“Powers of sale in deeds of trust,
mortgages, and other instruments shall be strictly construed and shall be fairly
exercised.”).
70
Id. at 20.
71
Watts v. Bank of N.Y. Mellon, N.A., No. 1:13-cv-2701-TWT, 2014 WL
695222, at *3 (N.D. Ga. Feb. 21, 2014). The Plaintiff cites the National Mortgage
Settlement and RESPA as condemning the practice of dual tracking, but fails to cite
any precedent from this jurisdiction that forbids pursuing modification and foreclosure
at the same time.
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foreclosure.72 Additionally, seeking a loan modification does not excuse the Plaintiff
from his obligation to pay under the Note and Security Deed.73
Both the Plaintiff and the Defendant agree that the Plaintiff failed to pay the
amount due on his loan.74 Further, the Plaintiff did not make any payments after
February of 2010.75 It is without question that the Plaintiff sought a loan modification
in April of 2011.76 Normally, the Plaintiff’s failure to tender the amount due on the
loan would be a complete bar to recovery for wrongful foreclosure.77 Without tender
by the Plaintiff, it generally cannot be said that the bank caused any damages – the
plaintiff instead causes his own damages by failing to pay.78 Where the bank makes
some affirmative statement that induces the plaintiff to stop making payments,
72
Moore v. McCalla Raymer, LLC, 916 F. Supp. 2d 1332, 1343 (N.D. Ga.
2013).
73
Freeman v. Wells Fargo Bank, N.A., No. 1:12-cv-2854-RWS, 2013 WL
2637121, at *4 (N.D. Ga. June 11, 2013).
74
Def.’s Statement of Undisputed Material Facts ¶¶ 7, 8, 13, 14, 15.
75
Id. ¶¶ 13, 14.
76
Id. ¶ 21.
77
Moore, 916 F. Supp. 2d at 1343 (“[T]o seek any relief regarding a
pending or past foreclosure sale, plaintiff must tender the amount owed under the
loan.”).
78
Freeman, 2013 WL 2637121, at *3.
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however, a claim for wrongful foreclosure may stand.79 In Joseph, for example, the
bank told the plaintiff in writing to stop making payments in order to receive a loan
modification.80 There, a claim for wrongful foreclosure existed because the bank failed
to exercise its power of sale fairly and in good faith by telling the plaintiff to stop
making payments but then foreclosing anyway.81 Similarly, in Stimus v. CitiMortgage,
Inc.,82 repeated oral assurances from the bank that a modification would be granted
were sufficient to sustain the plaintiff’s wrongful foreclosure claim. In this case, the
bank did nothing to prevent the Plaintiff from making payments on his loan.
Furthermore, the Plaintiff asserts that the sales price was grossly inadequate and
accompanied by circumstances allowing a claim for wrongful foreclosure. The
Georgia Court of Appeals has held that this theory stands “only when the price
realized is grossly inadequate and the sale is accompanied by either fraud, mistake,
misapprehension, surprise or other circumstances which might authorize a finding that
79
See, e.g., Joseph v. Federal Home Loan Mortgage Corp., No. 1:12-cv01022-RWS, 2012 WL 5429639, at *3 (N.D. Ga. Nov. 6, 2012) (allowing a claim for
wrongful foreclosure where the defendant had given written notice to the plaintiff to
stop making payments in order to receive a loan modification).
80
Id.
81
Id.
82
No. 5:10-cv-435 MTT, 2011 WL 2610391, at *5 (M.D. Ga. July 1,
2011).
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such circumstances contributed to bringing about the inadequacy of price.”83In this
case, the bank bid the total of the outstanding indebtedness. There is no evidence of
fraud or any other conduct by the bank that would depress the bidding at the
foreclosure sale.
The Plaintiff also claims that BANA was required to give a new notice of
acceleration after it accepted a late partial payment. This theory does not survive
summary judgment. The Plaintiff is correct that O.C.G.A. § 13-4-4 does provide that
where parties mutually depart from the terms of a contract and pay or receive money
under the departure, notice must be given in order to rely on the strict terms of the
original contract.84 For O.C.G.A. § 13-4-4 to apply, however, there must be mutual
departure from the terms of the contract.85 There is no evidence showing mutual
disregard of the contract here. In fact, as the Defendant points out, Paragraph 1 of the
Security Deed, the contract from which the Plaintiff claims the parties departed,
specifically states that “Lender may accept any payment or partial payment
83
Brown v. Freedman, 222 Ga. App. 213, 215 (1996).
84
O.C.G.A. § 13-4-4 (2014).
85
See id. (“Mutual temporary disregard of contract.”); Phillips v. Ocwen
Loan Servicing, LLC, No. 1:12-cv-3861-WSD, 2013 WL 4854760, at *6 (N.D. Ga.
Sept. 11, 2013) (citing Crawford v. First Nat’l Bank of Rome, 137 Ga. App. 294
(1976)) (noting the mutual disregard requirement).
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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.”86
Given the express terms of the contract, the Defendant did not deviate from the terms
– it simply accepted payments as allowed to do. Because there was no mutual
deviation from the contract, the Plaintiff’s theory cannot stand.
Additionally, the Plaintiff claims that BANA breached his constitutional rights,
giving rise to a claim for wrongful foreclosure. The Georgia Supreme Court has held
that the foreclosure procedure in Georgia is not subject to an attack on constitutional
due process grounds because it is a private property matter involving no state action.87
The Plaintiff’s constitutional claim therefore fails as a matter of law.
b.
Breach of Contract
The Plaintiff has failed to present any evidence creating a genuine dispute of
material fact on his claim for breach of contract. The Plaintiff claims breaches of
Paragraphs 19 and 22 of the Security Deed. As to Paragraph 22, the Plaintiff admits
that all four Notices of Intent to Accelerate contain the information required under
86
Def.’s Mot. for Summ. J., Ex. C, p. 4, ¶ 1.
87
Parks v. Bank of N.Y., 279 Ga. 418, 419 (2005).
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Paragraph 22.88 These notices were all sent before BANA accelerated the balance of
the loan. The Plaintiff relies on a recent Georgia Court of Appeals’ decision to support
his breach of contract claim based on Paragraph 22. But in BAC Home Loans
Servicing v. Wedereit, the case the Plaintiff cites, summary judgment was proper
where the defendant showed no evidence of pre-acceleration notice.89 Unlike in BAC,
pre-acceleration notice was given here and all four Notices of Intent to Accelerate are
in the record. There is no evidence whatsoever that the Defendant breached Paragraph
22 of the Security Deed. Additionally, the Plaintiff has presented no evidence of a
breach of Paragraph 19. Summary judgment on the Plaintiff’s claim for breach of
contract is granted.
c.
Attorney’s Fees
Attorney’s fees are recoverable under Georgia law when the “defendant has
acted in bad faith, has been stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense.”90 “Bad faith is bad faith connected with the
transaction and dealings out of which the cause of action arose, rather than bad faith
88
Pl.’s Resp. to Def.’s Statement of Undisputed Material Facts ¶ 12;
Chadwick Dep. at 28, 29, 30, 31.
89
759 S.E.2d 867, 871 (Ga. Ct. App. 2014).
90
O.C.G.A. § 13-6-11.
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in defending or resisting the claim after the cause of action has already arisen.”91 “Bad
faith requires more than ‘bad judgment’ or ‘negligence,’ rather the statute imports a
‘dishonest purpose’ or some ‘moral obliquity’ and implies ‘conscious doing of wrong’
and a ‘breach of known duty through some motive of interest of ill will.’”92 Given the
failure of the Plaintiff’s substantive claims, the claim for attorney’s fees fails as well.
B.
The Plaintiff’s Motion for Partial Summary Judgment
The Plaintiff moves for partial summary judgment as to most of the Defendant’s
affirmative defenses. This motion is now moot.
91
Lewis v. D. Hays Trucking, Inc., 701 F. Supp. 2d 1300, 1313 (N.D. Ga.
2010) (internal quotation marks omitted).
92
Id.
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IV. Conclusion
For the reasons set forth above, the Plaintiff’s Motion for Partial Summary
Judgment [Doc. 65] is DENIED. The Defendant’s Motion for Summary Judgment
[Doc. 67] is GRANTED. The Plaintiff’s Motion to Strike Defendant’s Motion for
Summary Judgment [Doc. 72] is DENIED, and the Plaintiff’s Motion to Strike the
Summary Judgment Affidavit of BriAnna May [Doc. 73] is DENIED.
SO ORDERED, this 9 day of September, 2014.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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