FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge]
L. McGowan on brief for appellants.
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.
J. Patry and Blank Rome LLP on brief for appellee New Penn
Lynch, Stahl, and Kayatta, Circuit Judges.
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.
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
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.
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 came to be held by BoNYM. 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.
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.
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
(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.
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. Binghamv.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 ...