                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11054                ELEVENTH CIRCUIT
                                                         SEPTEMBER 30, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                    D. C. Docket No. 06-22795-CV-JJO

LASCELLES GEORGE MCLEAN,
VIRGINIA MCLEAN,


                                                         Plaintiffs-Appellants,

                                  versus

GMAC MORTGAGE CORPORATION,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (September 30, 2010)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
       Virginia and Lascelles McLean, proceeding pro se, appeal the district court’s

grant of summary judgment in favor of GMAC Mortgage Corporation (“GMAC”)

in their suit under the Real Estate Settlement and Procedures Act (“RESPA”),

12 U.S.C. § 2605. They argue, that the district court: (1) failed to address their

claim that GMAC lacked “standing” to foreclose on their property because they

transferred interest to Federal National Mortgage Association (“Fannie Mae”), and

erred by not allowing them to amend their complaint to add Fannie Mae as an

indispensable party; (2) erred by failing to appoint a guardian ad litem for Ms.

McLean sua sponte; and (3) erred by granting summary judgment to GMAC on

their RESPA claims.1

                                     I. BACKGROUND

       The McLeans brought this action in federal court on November 14, 2006

after nearly ten years of legal disputes with GMAC concerning the mortgage on

their house. There were numerous foreclosure actions and three separate

bankruptcies.




       1
           Although the McLeans asserted other claims below, which the court denied, they do not
raise these claims on appeal, and, therefore, have abandoned them. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (per curiam) (citation omitted) (holding that issues not briefed on
appeal, even by a pro se litigant, are deemed abandoned). In addition, we are cognizant of the
fact tha the mcLeans’ brief was prepared pro se and we have construed the mcLeans’ arguments
liberally.

                                                2
      During the third bankruptcy GMAC sent a letter dated December 8, 2004 to

the McLeans’ bankruptcy trustee advising that the McLeans had not been current

with their escrow payments as directed by the bankruptcy plan. As a result, the

GMAC letter indicated that the McLeans’ mortgage payments were going to be

increased from $1,674.84 to $3,923.60, effective February 1, 2005. The McLeans

responded with a letter to GMAC’s Horsham, Pennsylvania address on December

15, 2004 explaining that they believed the escrow account to be current and

requesting an explanation of GMAC’s accounting of the escrow account. Upon

failing to receive a response from GMAC, the McLeans sent a second letter on

February 14, 2005 to GMAC’s attorney which requested: (1) a detailed explanation

for the increase in the mortgage payment; (2) the date when the delinquency in the

escrow account began to accrue; (3) specific amounts of fines and penalties

included in the delinquency; and (4) why GMAC failed to give the McLeans

timely notice of their escrow delinquency.

      GMAC responded on February 25, 2005 with a letter that briefly explained

that the December 8 letter was a mistake, that the escrow account was never

delinquent, and that the McLeans should disregard any increase in their mortgage

payments. GMAC’s letter did not address the McLeans’ requests for information

from their February 14 letter. The McLeans subsequently filed this complaint



                                         3
which alleged several types of impropriety on the part of GMAC. The district

court granted summary judgment in GMAC’s favor on all the claims, except the

RESPA claim. The McLeans then filed a pretrial contempt motion claiming that

GMAC lacked standing because they had sold the McLeans’ mortgage to Fannie

Mae. The district court denied this motion and then granted summary judgment in

GMAC’s favor on the remaining RESPA claim because the McLeans failed to

show how the alleged RESPA violations caused their injuries.

                                II. DISCUSSION

A.    The McLeans’ Arguments With Regard to Standing are Immaterial and
      Were Raised in an Untimely Manner

      Although the McCleans are permitted to do so, this case illustrates the perils

of self-representation in complex commercial litigation. The McLeans essentially

brought suit against GMAC and then alleged that GMAC should not be a party to

the lawsuit. Apparently, the McLeans were attempting to argue that GMAC lacked

standing to bring the previous foreclosure actions. However, these arguments were

made in an untimely manner in the wrong court. If the McLeans feel that GMAC

did not have standing to foreclose on their home they should have sought to set

aside the bankruptcy and foreclosure judgments in bankruptcy court. A contempt

motion filed prior to a trial on RESPA violations was neither the time nor the place

to address GMAC’s standing to enforce the terms of their mortgage.

                                          4
      Contrary to the McLeans’ assertion, the court did address their “standing”

argument below, rightly concluding that it lacked any merit. The district court

appropriately instructed the McLeans at the pretrial conference in saying: “If you

think you have the wrong party, if you would rather sue Fannie Mae, you are

welcome to do that.” Doc. 219 at 12. Because GMAC, as the defendant, did not

file a counterclaim and did not complain of an injury, the standing requirements are

inapplicable.

B.    The District Court Did Not Err in Failing to Appoint a Guardian ad Litem
      For Ms. McLean

      The McLeans argue on appeal, for the first time, that the district court should

have appointed a guardian ad litem for Ms. McLean. The McLeans did not request

a guardian ad litem previously, but now assert that the district court was under an

obligation to sua sponte appoint one.

      “It is well established that the appointment of a guardian ad litem is a

procedural question controlled by Rule 17(c) of the Federal Rules of Civil

Procedure.” Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001) (quotation

omitted). “Rule 17(c) does not make the appointment of a guardian ad litem

mandatory. If the court feels that the [person’s] interests are otherwise adequately

represented and protected, a guardian ad litem need not be appointed.” Roberts v.




                                          5
Ohio Cas. Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958) (per curiam).2 The district

court’s decision as to whether to appoint a guardian ad litem is reviewed for abuse

of discretion. See Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 200

(2d Cir. 2003)

       The McLeans never asserted before the district court that Ms. McLean was

not competent to proceed to trial and never requested a guardian ad litem to

represent her. “Neither the language of Rule 17(c) nor the precedent of [the

Second Circuit] or other circuits imposes upon district judges an obligation to

inquire sua sponte into a pro se plaintiff’s mental competence, even when the judge

observes behavior that may suggest mental incapacity.” Ferrelli, 323 F.3d at 201.

In any case, there is insufficient evidence in the record that would alert the district

court to any issue regarding Ms. McLean’s competence. The McLeans did request

several continuances to allow Ms. McLean to recover from psychological stress.

However, psychological and mental stress is not the equivalent of incompetence to

proceed in court. The court transcripts show that Ms. McLean understood the

proceedings and was capable of protecting her interests. Furthermore, Mr. McLean




       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit issued before
October 1, 1981.

                                               6
was a party to the suit. Therefore, the district court did not err by not appointing a

guardian ad litem sua sponte.

C.    The District Court Did Not Err in Granting Summary Judgment to GMAC
      for the McLeans’ RESPA Claims

      We review a district court’s grant of summary judgment de novo, viewing all

evidence and drawing all reasonable inferences in favor of the non-moving party.

Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). Summary judgment is

appropriate where the record presents no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. Swisher Int’l, Inc. v.

Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008), cert. denied, 130 S. Ct. 71 (2009).

“Mere conclusions and unsupported factual allegations are legally insufficient” to

defeat a summary judgment motion. Bald Mountain Park, Ltd. v. Oliver, 863 F.2d

1560, 1563 (11th Cir. 1989).

      RESPA prescribes certain actions to be followed by entities or persons

responsible for servicing federally related mortgage loans, including responding to

borrower inquires. See 12 U.S.C. § 2605. Pursuant to § 2605(e), a loan servicer,

upon receipt of a qualified written request, must provide “a written response

acknowledging receipt of the correspondence” within 20 business days. Id.

§ 2605(e)(1)(A). RESPA further requires that, within 60 business days of receipt

of a qualified written request, the servicer must: (1) make appropriate corrections

                                           7
in the account of the borrower and transmit a written notification of such

correction; (2) after conducting an investigation, provide the borrower with a

written explanation that includes a statement of the reasons for which the servicer

believes the account is correct, and the name and telephone number of an employee

or department that can provide further assistance; or (3) after conducting an

investigation, provide the borrower with a written explanation that includes the

information requested by the borrower or an explanation of why the information

requested is unavailable, along with the name and telephone number of an

employee or department that can provide further assistance. Id. § 2605(e)(2).

      If a loan servicer fails to comply with any of these provisions, an individual

borrower may recover any actual damages caused by the failure, and up to $1,000

in statutory damages if there is a pattern or practice of noncompliance with

RESPA. Id. § 2605(f). Although we have not specifically defined “actual

damages” within the meaning of § 2605(f)(1)(A), we have held that RESPA is a

consumer protection statute. See Hardy v. Regions Mortg., Inc., 449 F.3d 1357,

1359 (11th Cir. 2006). Consequently, RESPA is to be “construed liberally in order

to best serve Congress’ intent.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d

703, 707 (11th Cir. 1998) (addressing the remedial nature of the Truth in Lending

Act (“TILA”)).



                                          8
      Construing the term “actual damages” broadly, and based on the

interpretations of “actual damages” in other consumer-protection statutes that are

remedial in nature, plaintiffs arguably may recover for non-pecuniary damages,

such as emotional distress and pain and suffering, under RESPA. See, e.g., Banai

v. Sec’y, U.S. Dep’t of Hous. & Urban Dev. ex rel. Times, 102 F.3d 1203, 1207

(11th Cir. 1997) (the Fair Housing Act allowance for “actual damages” includes

anger, embarrassment, and emotional distress). Nevertheless, the McLeans must

present specific evidence to establish a causal link between the financing

institution’s violation and their injuries. See Turner v. Beneficial Corp., 242 F.3d

1023, 1027–28 (11th Cir. 2001) (en banc) (requiring a causal link for TILA

claims). In some circumstances, we have held that a plaintiff’s testimony alone

could support an award of compensatory damages for emotional distress. Akouri v.

Fla. Dep’t of Transp., 408 F.3d 1338, 1345 (11th Cir. 2005) (concerning

constitutional violations). However, “the testimony must establish that the plaintiff

suffered demonstrable emotional distress, which must be sufficiently articulated;

neither conclusory statements that the plaintiff suffered emotional distress nor the

mere fact that a . . . violation occurred supports an award for compensatory

damages.” Id. (quotation omitted).




                                          9
      Here, even if we assume arguendo, as the district court did, that GMAC

committed two RESPA violations, we still find that the McLeans offered no

competent evidence demonstrating that any of their alleged injuries were caused by

the said violations. In sum, the McLeans’ conclusory allegations were insufficient

to support a claim of emotional distress.

                                IV. CONCLUSION

      The McLeans are free to address any possible issues concerning GMAC’s

standing to foreclose on their home in the proper venue. However, for the

purposes of the RESPA claim we find that GMAC was the appropriate party, but

that the McLeans were unable to articulate any specific injury that was caused by

GMAC’s failure to respond to their request for information. Further, Ms. McLean

was capable of handling her affairs without the aid of a guardian ad litem,

especially in light of the fact that Mr. McLean was a party to the suit. Therefore,

we affirm the summary judgment of the district court.

AFFIRMED.




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