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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 12-15884
Non-Argument Calendar
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D.C. Docket No. 6:10-cv-01933-JA-DAB
ABDIEL ECHEVERRIA, et al.
Plaintiffs-Appellants,
versus
BAC HOME LOANS SERVICING, LP, et al.
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(July 18, 2013)
Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
Abdiel Echevarria and Isabel Santamaria, appearing pro se, appeal from an
order of the district court which (1) dismissed their claims against Bank of
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America and BAC Home Loans for (a) violations of the RICO statute, 18 U.S.C.
§§ 1961 et seq., and (b) intentional infliction of emotional distress; and (2) granted
summary judgment on their claims against BOA and BAC for (a) violation of
RESPA, 12 U.S.C. §§ 2605 et seq., and (b) fraudulent misrepresentation. After
review of the record and the parties’ briefs, we affirm. 1
I
We review a district court’s Rule 12(b)(6) dismissal de novo. See, e.g.,
Catran v. City of St. Petersburg, 658 F.3d 1260, 1264 (11th Cir. 2011). A plaintiff
must allege enough in his complaint to render a claim “plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A
The district court properly dismissed the RICO claim because the plaintiffs
did not allege injury to their business or property. See 18 U.S.C. § 1964(c)
(allowing recovery to “[a]ny person injured in his business or property”). The
plaintiffs’ allegations that Ms. Santamaria suffered personal injury – i.e., physical
symptoms and emotional distress – are legally insufficient. See Williams v.
Mohawk Ind., 465 F.3d 1277, 1286-87 (11th Cir. 2006) (“The terms ‘business or
property’ are, of course, words of limitation which preclude [certain forms of]
recovery.”) (internal quotation marks and citation omitted); Grogan v. Platt, 835
1
We assume the parties’ familiarity with the facts, and discuss the allegations or evidence
only as necessary to explain our decision.
2
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F.2d 844, 847 (11th Cir. 1988) (“In our view, the ordinary meaning of the phrase
‘injured in his business or property’ excludes personal injuries, including pecuniary
losses therefrom.”). See also Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979)
(explaining that the phrase “business or property” in the Clayton Act, 15 U.S.C. §
15, “retains restrictive significance” and “would … exclude personal injuries
suffered”).2
B
As to the claim for infliction of emotional distress, the plaintiffs argue –
without any elaboration – that they pled sufficient facts to state a claim. See
Appellants’ Brief at 40. We disagree.
Insofar as the plaintiffs alleged intentional infliction of emotional distress,
the district court correctly held that the defendants’ alleged conduct (e.g., not
providing the plaintiffs with correct information concerning their mortgage loan,
refusing to modify that loan, losing papers and documents, and threatening
foreclosure) was not “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency.” Metro Life Ins. Co. v. McCarson, 487
So.2d 277, 278-79 (Fla. 1985). Compare Valdes v. GAB Robins North America,
Inc., 924 So.2d 862, 866 (Fla. Dist. Ct. App. 2006) (defendants’ alleged conduct –
falsely reporting to the division of insurance that plaintiff had committed fraud,
2
Given our ruling, we need not and do not address whether the district court erred in
striking the treatment notes of Ms. Santamaria’s psychiatrist.
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which led to plaintiff’s arrest – “is not the sort of outrageous conduct” which
permits a claim for intentional infliction of emotional distress).
With respect to the claim for negligent infliction of emotional distress, the
plaintiffs did not allege a physical impact, which is generally required under
Florida law, see R.J. v. Humana of Florida, 652 So.2d 360, 362 (Fla. 1995), and
they did not come within any of the exceptions to the impact rule. See generally
Fla. Dept. of Corrections v. Abril, 969 So.2d 201, 206-07 (Fla. 2007) (discussing
exceptions to the impact rule). The district court therefore properly dismissed this
claim as well.
II
We review a district court’s grant of summary judgment de novo. We
employ the same Rule 56 standard as the district court, which means that we view
the evidence in the light most favorable to the non-moving parties. See, e.g.,
Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300, 1304 (11th Cir. 2003).
A
The plaintiffs argue that the district court failed to notify them of their
“duty” to submit affidavits or other evidence in opposition to the defendants’
motion for summary judgment. See Appellants’ Brief at 34-36. We find no
reversible error. Although we require district courts to provide pro se litigants
notice of their right to file affidavits and other materials in opposition to a motion
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for summary judgment, see Griffin v. Wanright, 772 F.2d 822, 824 (11th Cir. 1985),
there is no “duty” imposed on non-moving parties to file anything in response.
And though the district court appears not to have provided the Rule 56 notice to the
plaintiffs, that error is harmless because the plaintiffs filed a response in opposition
and submitted evidence supporting their position that summary judgment was
inappropriate. See M.B. # 11072-054 v. Reish, 119 F.3d 230, 232 (2nd Cir. 1997)
(failure to provide pro se litigant with Rule 56 notice is not reversible error when
the litigant “responds to the summary judgment motion with factual and legal
submissions indicating that he understood the nature and consequences of
summary judgment and ‘the need to set forth all available evidence demonstrating
a genuine dispute over material facts’”). We note, as well, that in their depositions
the plaintiffs confirmed that there were no additional facts, outside of those in their
third amended complaint and exhibits, which supported their claims.
B
The plaintiffs alleged that BOA and BAC violated 12 U.S.C. § 2605(e) by
failing to respond to their “qualified written request,” and violated § 2605(c) by
failing to send them, within the statutory time period, notice that their loan had
been transferred from BOA to BAC. The district court granted summary judgment
in favor of the defendants on both RESPA claims, and we conclude that it did not
err in doing so.
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On the § 2605(e) claim, the district court explained that BAC sent two letters
in response to the plaintiffs’ qualified written request, which was mailed on April
30, 2010. See § 2605(e)(1)(A) (acknowledgment must be provided within 20
days). The district court also noted that the plaintiffs did not dispute that these two
letters constituted an adequate response to their request. On appeal, the plaintiffs
argue that the defendants’ May 14 response letter did not correct the incorrect
information or remedy other problems with their account. See § 2605(e)(2)
(servicer must make “appropriate corrections” or explain why the account is
correct within 60 days). The problem is that the plaintiffs did not make this
argument below in their response to the motion for summary judgment. See D.E.
61 at 4-5. As a result, we will not consider the argument here. See Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“an issue not
raised in the district court and raised for the first time on appeal will not be
considered”).
The district court also ruled that the two other letters sent by the plaintiffs on
July 10 and August 16, 2010, were not qualified written requests under RESPA.
See § 2605(e)(1)(B) (defining a qualified written request). The plaintiffs argue that
the defendants responded to these letters on November 24, 2010, well beyond
RESPA’s 60-day period. But they do not explain why their own letters constituted
qualified written requests under RESPA, and unless they did, the defendants had
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no statutory obligation to respond within 60 days. We therefore affirm the district
court’s ruling with respect to these two other letters.
Turning to the § 2605(c) claim, the district court ruled that, even if the
defendants failed to provide the plaintiffs with timely notice of the transfer of their
loan, there was no RESPA violation allowing actual damages, in part because there
was no evidence of a pattern and practice of non-compliance with RESPA on the
part of the defendants. Thus, the plaintiffs could not recover statutory damages
under § 2605(f)(1). The plaintiffs do not explain why this ruling was incorrect, so
we deem the § 2605(c) claim abandoned.3
C
The district court granted summary judgment on the fraud claim – which
was largely based on allegations that the defendants falsely told the plaintiffs that
they would qualify for a loan modification if they defaulted and then told them
they had so qualified – because the plaintiffs had not proven actual harm. As the
district court explained, although the plaintiffs kept making mortgage payments for
a while and also made some home improvements, they were still living in the
3
The plaintiffs do argue – as they did below – that they made a payment in September of
2009 to their prior mortgage company/servicer because of the defendants’ untimely
notice of the transfer of the loan. But they do not claim that this payment was not
credited to their account. So, as the district court explained, the plaintiffs failed to show
actual damages from any violation of § 2605(c).
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house secured by the mortgage loan. The plaintiffs do not offer any argument as to
why the district court’s reasoning was erroneous, so there is no basis for reversal.
III
The district court’s order is affirmed. 4
AFFIRMED.
4
We affirm, without discussion, as to the other arguments made by the plaintiffs on
appeal.
8