Thomas Frangos; Frances Frangos v. Bank of America, N.a.

United States Court of Appeals
For the First Circuit
No. 15-2494
THOMAS FRANGOS; FRANCES FRANGOS,
Plaintiffs, Appellants,
v.
BANK OF AMERICA, N.A.; THE BANK OF NEW YORK MELLON; NEW PENN
FINANCIAL, LLC, d/b/a Shellpoint Mortgage Servicing,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Stahl, and Kayatta,
Circuit Judges.
John L. McGowan on brief for appellants.
Phoebe N. Coddington, Elizabeth T. Timkovich, and Winston &
Strawn LLP on brief for appellees Bank of America, N.A. and The
Bank of New York Mellon.
Joseph J. Patry and Blank Rome LLP on brief for appellee New
Penn Financial, LLC.
June 21, 2016

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STAHL, Circuit Judge. After twice defaulting on their
mortgage, Thomas and Frances Frangos brought suit against the
defendants, Bank of America, N.A. ("BoA"), The Bank of New York
Mellon ("BoNYM"), and New Penn Financial, LLC, seeking to forestall
a planned foreclosure sale of their home. The Frangoses now appeal
from the district court's entry of summary judgment in favor of
the defendants. Discerning no error, we AFFIRM.
Facts & Background
In 2005, the Frangoses borrowed $599,000 to refinance an
existing mortgage on their Portsmouth, New Hampshire home. In
exchange, the Frangoses pledged the home as collateral to secure
a promissory note issued to the lender in the same amount.
Beginning in 2007, the Frangoses suffered financially as
Mr. Frangos battled cancer and as the recession battered his
construction business. The Frangoses defaulted on the mortgage
twice, first in 2007 and again in 2009. After the first default,
the loan was restructured, but, notwithstanding the restructuring,
the Frangoses again fell into default. It is undisputed that
although the Frangoses' last mortgage payment was made in 2009,
they continue to reside in the home to this day.
As often occurred during this period of time, after their
initial issuance, the mortgage and the promissory note changed
hands repeatedly in the secondary mortgage market. In 2011, both

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came to be held by BoNYM. 1 From 2011 until 2013, BoNYM and the
Frangoses engaged in protracted negotiations aimed at further
restructuring the loan. When these negotiations ultimately proved
unsuccessful, a foreclosure sale was scheduled for September 2013.
On the eve of the sale, however, the Frangoses filed suit in New
Hampshire state court, where they successfully obtained a
preliminary injunction barring the sale from moving forward.
Although the foreclosure proceedings were later
cancelled, the lawsuit remained pending. After the removal of the
action to the federal court, the Frangoses filed an amended
complaint. They sought an injunction permanently barring the
defendants from foreclosing, as well as damages premised on BoA's
alleged breach of a provision in the mortgage agreement obligating
the lender to provide the borrower with a detailed notice of
default and right to cure prior to foreclosing.
Ultimately, the district court granted summary judgment
in favor of the defendants. See Frangos v. Bank of Am., N.A., No.
13-CV-472-PB, 2015 WL 6829104 (D.N.H. Nov. 6, 2015). With respect
to the request for a permanent injunction, the district court found
that because the foreclosure had been cancelled, the Frangoses
could not make the necessary showing that they would suffer
irreparable harm in the absence of injunctive relief. Id. at *2
1 The other defendants, BoA and New Penn Financial, serviced
the loan (at separate times) on BoNYM's behalf.

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(citing Global Naps, Inc. v. Verizon New Eng., Inc., 706 F.3d 8,
13-14 (1st Cir. 2013) (per curiam)). And, as to the claim for
breach of the mortgage agreement's notice provision, the district
court found that the Frangoses had not suffered compensable
monetary damages. Id. at *2-3. This appeal followed.
Discussion
We review de novo the district court's entry of summary
judgment, assessing the record in the light most favorable to the
Frangoses and resolving all reasonable inferences in their favor.
Bingham v. Supervalu, Inc., 806 F.3d 5, 9 (1st Cir. 2015). The
entry of summary judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(a)).
We conclude, with little difficulty, that the Frangoses'
enumerated bases for reversal are without merit. For one, the
Frangoses claim that the district court erred by denying their
request for a permanent injunction. The Frangoses contend that
they are entitled to such an injunction because a foreclosure might
occur at any time even though the defendants have not yet complied
with the notice requirements contained in the mortgage agreement.
This argument, however, overlooks the undisputed fact
that the foreclosure commenced in 2011 was cancelled. In point of
fact, the district court was presented with an uncontroverted sworn
affidavit to this effect by an assistant vice president of BoA.

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Thus, the district court correctly found that the Frangoses did
not face irreparable harm in the absence of injunctive relief.
See Global Naps, Inc., 706 F.3d at 13.
As a separate point, the Frangoses claim that the
district court erred by relying "exclusively" on representations
made by counsel for BoA and BoNYM at oral argument to the effect
that, if the defendants were to recommence foreclosure proceedings
in the future, they would do so only after complying with the
notice requirements. According to the Frangoses, the district
court could not rely on these "inherently speculative"
representations because they were not part of the summary judgment
record. See Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that
a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the
record . . . ."). The Frangoses draw our attention to the following
exchange between the district court and the attorney representing
BoA and BoNYM:
The Court: [I]f I were to . . . grant summary
judgment, . . . you would be free to
reinstitute foreclosure proceedings?
Counsel: Yes, sir, upon sending them notice
required under the mortgage . . . .
The Court: [W]ill you concede that you're not going
to rely in any way, shape, or form on
the prior notices before instituting
foreclosure in this case?
Counsel: Yes, sir.

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We need not decide whether the representations were
eligible for consideration because the Frangoses' argument
simultaneously mischaracterizes the nature of the colloquy and
overstates the import attached to counsel's representations by the
district court. In our view, far from serving as the "exclusive[]"
basis for the entry of summary judgment, this exchange was merely
an attempt by the district court to clarify its understanding of
the posture of the foreclosure proceedings. What is more, any
suggestion that the district court improperly relied on counsel's
representations is belied by the summary judgment record, which
- independent of oral argument - established the following facts
beyond dispute: (1) the Frangoses had defaulted on their mortgage
(indeed, they had not made a payment in at least six years); (2)
foreclosure proceedings had been commenced in 2011, but later
cancelled; and (3) BoNYM, as the holder of both the mortgage and
the promissory note, was eligible to recommence foreclosure
proceedings in the future, provided, of course, that in doing so
it complied with the terms of the mortgage agreement and New
Hampshire law. 2 Under these circumstances, the entry of summary
judgment in favor of the defendants was well founded.
2 We acknowledge, but find meritless, the Frangoses' claim
that the record is inconsistent on the issue of whether BoNYM
currently holds both the promissory note and the mortgage.

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Next, the Frangoses contend that the district court
erred by awarding summary judgment to the defendants on their claim
for breach of the mortgage agreement's notice provision. The
district court rejected this claim on grounds that the Frangoses
failed to present evidence of compensable monetary damages
resulting from the alleged breach. See Concord Hosp. v. N.H. Med.
Malpractice Joint Underwriting Ass'n, 694 A.2d 996, 998 (N.H. 1997)
("The party seeking damages in a contract action has the burden of
proving the extent and amount of damages sustained as a result of
the breach."). This was error, the Frangoses maintain, because
although they admittedly do not seek monetary damages, they could
have sought nominal damages at a later stage of the litigation.
We need not consider whether, under New Hampshire law,
nominal damages alone are sufficient to support a claim for breach
of contract because we conclude that the issue was waived. The
Frangoses did not seek nominal damages before the district court,
even when presented with a motion seeking summary judgment on
grounds that they had failed to prove triable damages. Indeed,
when asked repeatedly by the district court at oral argument
whether his clients were seeking nominal damages, counsel for the
Frangoses appeared to indicate that they were not. Thus, by
advancing this newly minted theory of recovery for the first time
on appeal, the Frangoses have waived the right, if any, to seek
nominal damages. See Iverson v. City of Bos., 452 F.3d 94, 102-

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03 (1st Cir. 2006) (noting that a theory of recovery "not squarely
and timely raised in the trial court cannot be pursued for the
first time on appeal[,]" particularly where the plaintiff failed
to raise the theory in opposition to a dispositive motion).
Conclusion
The judgment of the district court is AFFIRMED. 3
3 We reject out of hand as utterly frivolous the Frangoses'
claim that they are entitled to attorney's fees under N.H. Rev.
Stat. Ann. § 361-C:2, which provides for an award of fees in
certain consumer cases to "prevail[ing]" parties.

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