[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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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.

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Appeal from the United States District Court

for the Middle District of Florida

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(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.

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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.

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