Frangos v. The Bank of New York Mellon et al

Filing 21

ORDER ON APPEAL. The Bankruptcy Court's decision to deny Frangos's motion to amend his adversary complaint is AFFIRMED. So Ordered by Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Thomas Frangos
v.

Civil No. 18-cv-112-JL
Opinion No. 2019 DNH 010

Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for the
Certificateholders of CWABS, Inc., Asset
Backed Certificates, Series 2005-AB2;
New Penn Financial, LLC d/b/a Shellpoint
Mortgage Servicing; Bank of America, N.A.
ORDER ON APPEAL
This appeal turns on whether the Bankruptcy Court abused
its discretion by denying the appellant’s motion to amend his
adversary complaint before granting the appellees’ motions to
dismiss that complaint.

Appellant Thomas Frangos brought an

adversary complaint in the United States Bankruptcy Court,
claiming that the mortgage that he executed in 2005 was invalid
because he did not hold title to the mortgaged property at that
time and, further, that this invalidity of the underlying
mortgage rendered invalid his reaffirmation agreement, approved
by the Bankruptcy Court during a separate Chapter 7 proceeding.
In this appeal, Frangos argues that the Bankruptcy Court erred
by denying his motion to amend that adversarial complaint to
include the Frances Ann Frangos 2002 Revocable Trust u/t/d March

12, 2002 as a plaintiff because the Trust held title to the
property at the time of the mortgage.
This court has jurisdiction to hear appeals from “final
judgments, orders, and decrees” of the Bankruptcy Court under
28 U.S.C. § 158(a)(1).

See also L.R. 77.4.

Finding no error in

the Bankruptcy Court’s decision to deny Frangos leave to amend
his complaint, the court affirms it.
Standard of review
When hearing an appeal from the Bankruptcy Court, this
court applies the same standards of review governing appeals of
civil cases to the appellate courts.

See Groman v. Watman (In

re Watman), 301 F.3d 3, 7 (1st Cir. 2002).

As such, this court

reviews the Bankruptcy Court’s “findings of fact for clear error
and conclusions of law de novo.”

Old Republic Nat’l Title Ins.

Co. v. Levasseur (In re Levasseur), 737 F.3d 814, 817 (1st Cir.
2013).

It reviews a “denial of leave to amend [a complaint] for

abuse of discretion,” and “defer[s] to the [Bankruptcy Court’s]
hands-on judgment so long as the record evinces an adequate
reason for the denial.”

Nikitine v. Wilmington Tr. Co., 715

F.3d 388, 389 (1st Cir. 2013)

2

Background
Plaintiff Thomas Frangos and his wife, Ann Frangos,1
executed a mortgage on property located at 33 Gosport Road in
Portsmouth, New Hampshire on April 26, 2005.

The mortgage

secured a note, executed by Frangos alone, promising to repay a
loan for $599,000.

The mortgage names “Thomas A. Frangos, a

married person,” as the borrower and references both Thomas and
Ann Frangos as individuals.
At the time the mortgage was executed, however, title to
the property was held in the name of the Trust, with Ann Frangos
as trustee.

The mortgage does not mention the Trust.

Shortly

after the Frangoses executed the mortgage, the Trust conveyed
the property to Frangos, though Frangos -- who effectuated the
transfer -- now contends that he lacked authority to do so.
Frangos filed a Chapter 7 bankruptcy petition on
November 20, 2007, and received his discharge on January 9,
2009.

During those proceedings, Frangos signed a bankruptcy

reaffirmation agreement, reaffirming the mortgage in the amount
of $710,499.58.
2009.

Frangos once again defaulted on the loan in

Appellee Bank of New York Mellon (BNYM), which held both

the note and the mortgage, began foreclosure proceedings in

When the court refers to “Frangos” alone, it refers to
appellant Thomas Frangos.
1

3

2013.2

This led to a series of lawsuits brought by the Frangoses

to prevent that foreclosure.
The Frangoses first brought claims for breach of contract,
breach of the covenant of good faith and fair dealing, and
injunctive relief against appellees BNYM and Bank of America,
the loan’s former servicer.

See generally Frangos v. Bank of

America, N.A., 2015 WL 6829104, at *1 (D.N.H. Nov. 6, 2015)
(“Frangos I”) (Barbadoro, J.).

The court dismissed the

Frangoses’ breach of the covenant claim and granted summary
judgment to the defendants on their claims for breach of
contract and injunctive relief.

Id.

Foreclosure proceedings

recommenced.
Undeterred, Frangos filed a second lawsuit.

This time, in

addition to injunctive relief, Frangos challenged the validity
of the mortgage, brought claims against BNYM and appellee New
Penn Financial, LLC, doing business as Shellpoint Mortgage
Servicing, for violations of state and federal laws against
unfair debt collection, see 15 U.S.C. § 1692 et seq. and N.H.
Rev. Stat. Ann. § 358-C, and asserted a claim against Bank of
America for misrepresentation of the amount due on the
Frangoses’ monthly mortgage payments.

See generally Frangos v.

The court need not recount the travel of the note and mortgage
for purposes of this appeal.
2

4

Bank of New York Mellon, 2017 WL 4876284, at *1 (D.N.H. Oct. 27,
2017) (“Frangos II”) (McCafferty, J.).

After amending the

complaint, Frangos moved to join the Trust as an indispensable
party to that action.

See Fed. R. Civ. P. 19(a).

The court

denied that motion, concluding, among other things, that Frangos
and the Trust shared an interest in proving the mortgage’s
invalidity and avoiding foreclosure, and that the Trust was not
a required party under Rule 19(a) because of this shared
interest.

Id., 2017 WL 4876284, at *3.

The court then

dismissed Frangos’s misrepresentation claim as barred by the
economic loss doctrine.

Id., 2017 WL 4876284, at *2.

Frangos

voluntarily dismissed his remaining claims “without prejudice”
during the pendency of a motion to dismiss those claims.3
While Frangos’s action was pending before Judge McCafferty,
he filed the adversary complaint in the Bankruptcy Court that
give rise to this appeal.

In this complaint, Frangos alleged

(1) that the mortgage was void because the Trust owned the
property at the time the mortgage was executed; and (2) the
reaffirmation and loan modification agreements were void because
the mortgage was void.4

He further alleged that, under Rule 19,

3

Frangos v. Bank of New York Mellon, 16-cv-436-LM, doc. no. 57.

4

Appellant Appendix (doc. no. 10-1) at 12-14.

5

Ann Frangos, as trustee of the Trust, must be added to the
action as a plaintiff.
The appellees moved to dismiss Frangos’s adversary
complaint, invoking the doctrines of res judicata and judicial
estoppel.

The Bankruptcy Court granted that motion.

It found

that res judicata barred Frangos’s claims challenging the
mortgage’s validity in light of Frangos I and that judicial
estoppel also barred them because Frangos sought approval of the
reaffirmation agreement during his Chapter 7 bankruptcy
proceedings.5

Frangos does not challenge this decision on

appeal.6
At the same time that it dismissed his complaint, the
Bankruptcy Court denied Frangos leave to amend his complaint to
add the Trust as a party pursuant to Rule 19(a).

In doing so,

it found that the Trust’s only beneficiaries were Thomas and Ann
Frangos, that their children were designated as successor

5

Appellant Appendix (doc. no. 10-1) at 31-33.

See Appellant Brief (doc. no. 10) at 5 (framing issues
presented). To the extent that Frangos attempts to challenge
that decision in his reply brief, see Reply (doc. no. 16) at 47, that issue is waived. Young v. Wells Fargo Bank, N.A., 717
F.3d 224, 239-40 (1st Cir. 2013) (“arguments not raised in an
opening brief are waived”); United States v. Torres, 162 F.3d 6,
11 (1st Cir. 1998) (“issues raised for the first time in an
appellant's reply brief are generally deemed waived.”). The
same holds true for issues raised by appellant’s counsel for the
first time at oral argument. Piazza v. Aponte Roque, 909 F.2d
35, 37 (1st Cir. 1990).
6

6

beneficiaries, that Ann served as the trustee, and that the
Trust was revocable.7

Because of this unity of interests, and

referencing Frangos II, the Bankruptcy Court concluded that
adding the Trust as a plaintiff would not “in any way change the
res judicata effect of the prior litigation between Mr. Frangos
and the defendant in this adversary proceeding,” and would “do
nothing other than delay a final disposition of the property and
payments” to BNYM.8
Analysis
As explained supra, this court reviews a “denial of leave
to amend [a complaint] for abuse of discretion,” and “defer[s]
to the [Bankruptcy Court’s] hands-on judgment so long as the
record evinces an adequate reason for the denial.”

Nikitine v.

Wilmington Tr. Co., 715 F.3d 388, 389 (1st Cir. 2013).

It will

reverse the Bankruptcy Court’s decision only if that court
“makes an error of law or relies significantly on an improper
factor, omits a significant factor, or makes a clear error of
judgment in weighing the relevant factors.”

Maldonado-Vinas v.

Nat'l W. Life Ins. Co., 862 F.3d 118, 121 (1st Cir. 2017)
(internal quotations omitted).

7

Appellant Appendix (doc. no. 10-1) at 37.

8

Appellant Appendix (doc. no. 10-1) at 38.

7

Frangos argues that the Bankruptcy Court erred in denying
him leave to add the Trust -- with Ann Frangos as trustee -- as
a plaintiff to the adversary complaint.

This was error, Frangos

contends, because the Trust is a required party under Rule 19.
The Bankruptcy Court also erred, Frangos argues, by “treating
Mr. and Mrs. Frangos as one and the same with the Trust.”9

The

court finds no error on either count.
A.

Rule 19

Frangos first argues that the Bankruptcy Court erred by
concluding that the Trust is not a required party under Federal
Rule of Civil Procedure 19, which provides:
A person who is subject to service of process and
whose joinder will not deprive the court of subjectmatter jurisdiction must be joined as a party if:
(A)

in that person’s absence, the court cannot accord
complete relief among existing parties;

(B)

that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person’s absence
may:
(i)
as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of
the interest.

9

Appellant Brief (doc. no. 10) at 15.

8

Fed. R. Civ. P. 19(a)(1).

Frangos argues that the Trust is a

required party because the court could not grant complete relief
in its absence, id. Rule 19(a)(1)(A); its absence would impede
the Trust’s ability to protect its interest, id.
Rule 19(a)(1)(B)(i); and its absence would leave Frangos liable
under the mortgage and reaffirmation agreement after the Trust
voids the mortgage, id. Rule 19(a)(1)(B)(ii).

The court finds

no error in the Bankruptcy Court’s conclusion otherwise.
First, as Judge McCafferty observed, “if relief can be
effectuated between the existing parties without the involvement
of the absent party, the absent party is not required under Rule
19(a)(1)(A).”10

Frangos II, 2017 WL 4876284, at *3 (citing

Watchtower Bible & Tract Soc'y of New York, Inc. v. Municipality
of San Juan, 773 F.3d 1, 13 (1st Cir. 2014)).

Through his

adversary complaint, Frangos sought declaratory judgment that
the mortgage, reaffirmation agreement, and loan modification
agreement were void.11

He identifies nothing precluding the

Bankruptcy Court from affording him that relief without the

At oral argument, Frangos argued that Judge McCafferty’s order
lacks preclusive effect because he voluntarily dismissed his
claims in that action before a final resolution. Even assuming
it lacks such an effect, the court finds Judge McCafferty’s
order persuasive.
10

11

Appellant Appendix (doc. no. 10-1) at 8.

9

Trust’s involvement.12

The Bankruptcy Court’s decision was not,

therefore, contrary to Rule 19(a)(1)(A).
Second, to the extent that the Trust has an interest in
these proceedings, it is, as Judge McCafferty observed, “in
proving that the mortgage is invalid and that it holds title to
the property.”

Frangos II, 2017 WL 4876284, at *4.

Frangos

shares the same interest, seeking to prove that the mortgage is
invalid because the Trust, not he, held title to the property at
the time he executed the mortgage.

Frangos has identified no

other interest the Trust may hold.

With respect to this

analysis, “an absent party’s interests cannot be harmed or
impaired if they are identical to those of a present party.”
Bacardí Int’l Ltd. v. V. Suárez & Co., 719 F.3d 1, 11 (1st Cir.
2013).

Here, where the Trust’s interests are identical with

Frangos’s, the Bankruptcy Court’s decision was not contrary to
Rule 19(a)(1)(B)(i).
Finally, Frangos invokes the possibility that he may
“incur[] double, multiple, or otherwise inconsistent
obligations” if the Trust were not added as a plaintiff.
Specifically, Frangos suggests that he would remain liable under
the reaffirmation agreement even if the Trust were able to void

12

See Appellant Brief (doc. no. 10) at 10-11.

10

the underlying mortgage in a separate proceeding.13

The

Bankruptcy Court correctly observed, however, that adding the
Trust would not “in any way change the res judicata effect of
the prior litigation.”

This is because “a judgment that is

binding on a guardian or trustee may also bind the ward or the
beneficiaries of a trust.”
793, 798 (1996).

Richards v. Jefferson Cty., 517 U.S.

The parties do not dispute that both Thomas

and Ann Frangos were party to Frangos I.
are the Trust’s sole beneficiaries.
its trustee.

Thomas and Ann Frangos

And, Ann Frangos serves as

Because the Trust is in privity with the Frangoses

for res judicata purposes, which would preclude it from
challenging the mortgage’s validity in a separate action, the
Bankruptcy Court’s decision was not contrary to Rule
19(a)(1)(B)(ii).
B.

Conflation of Frangos and the Trust.

Neither did the Bankruptcy Court abuse its discretion by
“treating Mr. and Mrs. Frangos as one and the same with the
Trust”14 because the Bankruptcy Court did not, in fact, treat

Appellant Brief (doc. no. 10) at 12. At oral argument, he
further suggested that he may be able to discharge his
obligations under the reaffirmation agreement in bankruptcy if a
void mortgage rendered it an unsecured loan. Even if that
argument had merit, as discussed supra, he has waived it by
failing to brief it. Piazza v. Aponte Roque, 909 F.2d 35, 37
(1st Cir. 1990).
13

14

Appellant Brief (doc. no. 10) at 15.

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them “as one and the same with the Trust.”

Rather, the

Bankruptcy Court recognized, as Judge McCafferty did in Frangos
II, that the interests of Thomas Frangos, as an individual, and
the interests of the Trust were identical with respect to the
claim at issue -- the validity of the mortgage.

As discussed

supra, the Bankruptcy Court did not err in drawing that
conclusion.
Conclusion
For the reasons outlined herein, the Bankruptcy Court’s
decision to deny Frangos’s motion to amend his adversary
complaint is AFFIRMED.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

January 15, 2019

Kristina Finley, Esq.
Terrie L. Harman, Esq.
Timothy Laurent Chevalier, Esq.
Jonathan M. Flagg, Esq.
Michael P. Trainor, Esq.
John Harold McCann, Esq.
Olga L. Gordon, Esq.
Geraldine L. Koronis, Esq.

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