CME v. Ford

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                         
No. 96-1197

                    CME, ASSOCIATES, INC.,

               AS IT IS THE GENERAL PARTNER OF

                       CME GROUP, LTD.,

                     Plaintiff, Appellee,

                              v.

         JOSEPH D. FORD AND SHIRLEY ANN FORD, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nancy J. Gertner, U.S. District Judge]
                                                                

                                         

                            Before

                      Cyr, Circuit Judge,
                                                    
                    Boudin, Circuit Judge,
                                                     
                 and Ponsor,* District Judge.
                                                        

                                         

Alan  R. Hoffman with  whom John  R. Cavanaugh  and Lynch, Brewer,
                                                                              
Hoffman & Sands, LLP were on brief for appellants.
                            
Judith Gail  Dein with whom James  J. Arguin,  Warner & Stackpole,
                                                                              
LLP and Christopher Nolland were on brief for appellee.
                                   

                                         

                       October 17, 1996
                                         

                

* Of the District of Massachusetts, sitting by designation.


     Per  Curiam.  This is an  action on a promissory note by
                            

CME Associates against the Fords, two of whom were co-signers

of  the note.   The  district court  granted partial  summary

judgment  in favor  of  CME, establishing  the senior  Fords'

liability on the note.  A number of other issues remain to be

resolved, but the court  entered a separate judgment pursuant

to Fed. R. Civ. P. 54(b).

     The  Fords' primary defense  to the note  was an alleged

oral  modification  of the  terms of  the  note by  the prior

holder, the FDIC.   The district court rejected  this defense

on the ground that the note's current owner, CME, is a holder

in  due course  protected by  Massachusetts law  against such

modifications absent notice.   See Mass.  Gen. Laws ch.  106,
                                              

  3-305(2)(e).   We are satisfied from a review of the record

that  CME did not have notice and that there was insufficient

evidence to the contrary to warrant a trial on this question.

     The  Fords also  argued that  CME's foreclosure  sale of

real  property   securing  the   note  was  conducted   in  a

commercially  unreasonable fashion.   E.g.,  RTC v.  Carr, 13
                                                                     

F.3d 425 (1st Cir. 1993).  In effect, the Fords said that the

sale  was  conducted  in  a  negligent  manner.    But  their

affidavit to this effect did not even purport to show that it

was made by someone  with knowledge of the facts  as required

by Fed. R. Civ. P. 56(e).     The  Fords  say that  more time

should have been allowed for discovery concerning the conduct

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of the sale, but this is a matter largely  within the purview

of  the district court,  Ayala-Gerena v. Bristol Myers-Squibb
                                                                         

Co., 95 F.3d 86, 91 (1st Cir. 1996), and we perceive no abuse
               

of discretion.   Moreover, the record  does not reflect  that

the  Fords made  anything  approaching  an  adequate  showing

before  the  district  court  to justify  invocation  of  the

"escape hatch" under  Fed. R. Civ. P. 56(f).  Paterson-Leitch
                                                                         

Company,  Inc. v. Massachusetts  Municipal Wholesale Electric
                                                                         

Company, 840 F.2d 985, 988-989 (1st Cir. 1988).
                   

     No other issues argued by the Fords in this case require

further comment.   It would be helpful in the  future for the

district  court to  be  more explicit  in  setting forth  its

express determination that there is no just reason for  delay

as required by Fed. R. Civ. P. 54(b).

     Affirmed.
                         

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