UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Thomas Frangos

v. Civil No. 18-cv-112-JL Opinion No.

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

(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),

(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),

(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.,

(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. Frangos once again defaulted on the loan in

2009. Appellee Bank of New York Mellon (BNYM), which held both

the note and the mortgage, began foreclosure proceedings in

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

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.,

, 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.

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

et seq. and

-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.

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

4 Bank of New York Mellon,

, 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.

, at *3. The court then

dismissed Frangos’s misrepresentation claim as barred by the

economic loss doctrine.

, 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. 6 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 4- 7, that issue is waived. Young v. Wells Fargo Bank, N.A.,

(1st Cir. 2013) (“arguments not raised in an opening brief are waived”); United States v. Torres,

(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,

(1st Cir. 1990).

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.,

(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.,

(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 subject- matter 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,

Rule 19(a)(1)(A); its absence would impede

the Trust’s ability to protect its interest,

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,

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,

, at *3 (citing

Watchtower Bible & Tract Soc'y of New York, Inc. v. Municipality

of San Juan,

(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

10At 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. 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,

, 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.,

(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.” Richards v. Jefferson Cty.,

(1996). The parties do not dispute that both Thomas

and Ann Frangos were party to Frangos I. Thomas and Ann Frangos

are the Trust’s sole beneficiaries. And, Ann Frangos serves as

its trustee. 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

13Appellant 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,

(1st Cir. 1990). 14 Appellant Brief (doc. no. 10) at 15.

11 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: January 15, 2019

cc: 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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