Frangos v. Bank of America, N.A.
2016 U.S. App. LEXIS 11203
| 1st Cir. | 2016Background
- Frangos borrowed $599,000 in 2005 to refinance a NH home mortgage, securing the loan with a mortgage on the home.
- The Frangoses defaulted on the mortgage in 2007 and again in 2009; their last payment was in 2009, though they remained in the home.
- Over time the mortgage/note changed hands; by 2011 BoNYM held both the mortgage and note.
- Foreclosure was scheduled for September 2013 but a state-court injunction barred the sale, and the federal case followed.Requested permanent injunctive relief and damages for alleged breach of the notice provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a permanent injunction was appropriate given the foreclosure cancellation. | Frangos claim irreparable harm from potential future foreclosure without proper notice. | Foreclosure was cancelled; no irreparable harm. | Denied; no irreparable harm present. |
| Whether the district court properly relied on counsel representations at oral argument. | Relying on speculative assurances about future notice was improper. | Record independently supports summary judgment; representations were not exclusive. | Relying on those representations was not dispositive; judgment affirmed. |
| Whether the breach-of-notice provision claim survives despite lack of monetary damages. | Nominal damages could support breach claim even without monetary damages. | Claim was waived for not raising nominal damages earlier. | Waived; no nominal-damages theory considered. |
| Whether the district court erred in granting summary judgment on the breach claim. | No triable factual dispute; undisputed facts show breach and damages standard. | Affirmed summary judgment on breach claim. |
Key Cases Cited
- Global Naps, Inc. v. Verizon New Eng., Inc., 706 F.3d 8 (1st Cir. 2013) (irreparable harm analysis for injunctions; record support suffices)
- Concord Hosp. v. N.H. Med. Malpractice Joint Underwriting Ass'n, 694 A.2d 996 (N.H. 1997) (damages burden in contract actions; nominal damages not required)
- Iverson v. City of Bos., 452 F.3d 94 (1st Cir. 2006) (theory of recovery not raised in trial cannot be pursued on appeal)
- Bingham v. Supervalu, Inc., 806 F.3d 5 (1st Cir. 2015) (summary judgment standard; de novo review on appeal)