To establish a usury claim, Price must show the existence of four elements: (1) a loan or forbearance of money, either express or implied; (2) an understanding that the principal must be repaid; (3) an agreement to pay in return for such loan or forbearance a greater profit than is authorized by law; and (4) that the contract was made with an intent to violate the law. Hershiser v. Yorkshire Condominium Ass'n, Inc., 201 Ga. App. 185, 186, 410 S.E.2d 455 (1991). To determine whether Cashback has engaged in usury, the substance and not merely the form of the transactions must be analyzed.

Here, Rafac does not challenge the trial court’s ultimate finding that Ho was not an agent authorized to accept service on Jiangsu’s behalf; instead, Rafac claims Jiangsu’s failure to seek or obtain an extension of time within which to conduct Ho’s deposition barred the trial court’s consideration of that testimony. In support, Rafac relies on this Court’s decisions in Hershiser v. Yorkshire Condo. Assn., Inc., 201 Ga. App. 185, 410 S.E.2d 455 (1991), and Scoggins v. KIA Motors America, Inc., 272 Ga. App. 495, 612 S.E.2d 823 (2005), but we find those cases distinguishable. In Hershiser, we held that the state court erred in considering the plaintiffs late-filed affidavits in connection with its motion for summary judgment where (1) the plaintiff failed to obtain an extension of time within which to file the affidavits, and (2) the state court did not make a finding of excusable neglect for failing to timely file and serve such affidavits.

Accordingly, Garmon's affidavit was not properly before the court and the trial court erred by relying on it in adjudicating the motion for summary judgment. See Pierce v. Wendy's Inter., Inc. , 233 Ga. App. 227, 229 (1), 504 S.E.2d 14 (1998) (trial court erred by considering untimely affidavit in ruling on motion for summary judgment, where there was no request made for an extension of time and no evidence presented to show excusable neglect in failing to timely file the affidavit); Hershiser v. Yorkshire Condominium Ass'n., Inc. , 201 Ga. App. 185 (1), 410 S.E.2d 455 (1991) (trial court erred in considering untimely filed supplemental affidavits where the movant did not request an extension of time nor did the trial court find excusable neglect on the movant's part in failing to timely file the affidavits). Additionally, the trial court's consideration of the affidavit was not harmless because the trial court relied upon the affidavit in support of the Garmon Survey in granting summary judgment to Arandia.

The amounts sought in Winter's affidavit differ from the amounts awarded by the court on summary judgment, presumably because amounts paid by the Hayeks were applied to the attorney fees and costs, but as noted above, there is no statement as to exactly how the payments were allocated. Given those inconsistencies and the uncertainty regarding the amount of unpaid assessments for which attorney fees were incurred, we cannot determine whether the claimed fees were reasonable. Thus, we reverse the award of attorney fees and costs. See generally Hershiser v. Yorkshire Condo. Assn., 201 Ga.App. 185, 186(2), 410 S.E.2d 455 (1991) (evidence showing no more than amount billed by attorney is insufficient to establish reasonableness of claimed attorney fees); see also In re Jacobs, 324 B.R. 402, 409(III) (Bankr.N.D.Ga.2005) (fact that condominium association could lawfully exercise legal remedies upon homeowner's default does not automatically mean that attorney fees incurred in exercising those remedies are “reasonable attorneys' fees actually incurred”).Judgment reversed.

Accordingly, Daniel's motion for reconsideration is denied. See, e.g., Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185, 186 (3) ( 410 SE2d 455) (1991) ("Criticism of the affidavit at issue in defendant's brief did not elicit action by the . . . court and therefore did not amount to a motion to strike.").See Rental Equip. Group v. MACI, LLC, 263 Ga. App. 155, 160 (2) ( 587 SE2d 364) (2003) ("Not only must the objection be timely raised in the trial court, but the trial judge must rule upon the same issue as raised upon appeal to preserve the issue for our consideration.").

We are not the only jurisdiction to have viewed condominium instruments as asserting binding contractual obligations between a condominium association and the unit owners/association members: Sacker v. Perry Realty, supra at 302; Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185, 186(5) ( 410 S.E.2d 455) (1991). See also 13 ALR4th 598 Construction of Contractual or State Regulatory Provision Respecting Formation, Composition, and Powers of Governing Body of Condominium Association, note 1 ("`contractual' is meant to have reference to any of the private fundamental documents defining and governing the particular condominium arrangement, such as the original declaration, amendments thereto, and association bylaws").

Corry v. Robinson, 207 Ga. App. 167, 170 ( 427 S.E.2d 507) (1993); Gunter v. Hamilton Bank c., 201 Ga. App. 379, 381 ( 411 S.E.2d 115) (1991). Furthermore, the filing requirement is not waived unless the opposing party acquiesces in the use of the untimely materials or the party seeking to file a late affidavit seeks and obtains an extension from the court pursuant to O.C.G.A. § 9-11-6 (b) to extend the time for filing.Pierce v. Wendy's Intl., 233 Ga. App. 227, 229 ( 504 S.E.2d 14) (1998); Hershiser v. Yorkshire Condominium Assn., 201 Ga. App. 185 ( 410 S.E.2d 455) (1991). Here, USTC did not acquiesce and Turcotte did not seek an extension.

The Civil Practice Act provides that, when an act is required within a specific time, "the court for cause shown may at any time in its discretion[,] . . . upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect . . . ." O.C.G.A. § 9-11-6 (b). Butler argues that we must reverse the trial court's order granting the extension of time within which to respond because the court did not explicitly find excusable neglect, citing Hershiser v. Yorkshire Condo. Assn.,, 201 Ga. App. 185 (1) ( 410 S.E.2d 455) (1991).Hershiser is distinguishable from the case at bar because it involved the trial court's consideration of a late-filed affidavit supporting a summary judgment motion, in which the party filing the affidavit failed to request an extension of time within which to file and serve the affidavits. Butler further cites Hosley v. Davidson, 211 Ga. App. 529, 530-531 (1) ( 439 S.E.2d 742) (1993) for the proposition that Uniform Superior Court Rule 6.2 does not give the trial court "unfettered authority to excuse late filings.

Accordingly, this contention of error is properly before this Court. Turning to the merits of Pierce's assertion that the affidavit should not have been considered by the trial court, we find Hershiser v. Yorkshire Condominium Assn.,, 201 Ga. App. 185, (1) ( 410 S.E.2d 455) (1991) and Gunter v. Hamilton Bank c., 201 Ga. App. 379 ( 411 S.E.2d 115) (1991) controlling. In Hershiser, we determined that the trial court erred in considering supplemental affidavits filed after the motion for summary judgment was filed because the movant did not request an extension of time to file and serve the affidavits pursuant to OCGA § 9-11-6 (d), nor did the trial court find excusable neglect on the movant's part in failing to file timely and serve the affidavits.

Generally, affidavits supporting summary judgment should be served with the summary judgment motion. USCR 6.1; Hershiser v. Yorkshire Condominium Assn., 201 Ga. App. 185 (1) ( 410 S.E.2d 455) (1991). In this case, however, the record reveals no objection to or motion to strike either affidavit as untimely. "This court has consistently reached a finding of waiver where no objection was made to the late filing of an affidavit — whether the affidavit was in support of, or in opposition to, a motion for summary judgment.