Vasapolli v. Rostoff

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1319

JOHN VASAPOLLI, ET AL.,

Plaintiffs, Appellants,

v.

STEVEN M. ROSTOFF, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

Chester A. Janiak, with whom Andrew P. Botti and Burns &

Levinson were on brief, for appellants.

Christopher J. Bellotto, Counsel, with whom Ann S. Duross,

Assistant General Counsel, Robert D. McGillicuddy, Senior

Counsel, A. Van C. Lanckton, Laurie A. Parrott, and Craig and

Macauley Professional Corporation were on brief, for appellee

Federal Deposit Insurance Corporation.

November 8, 1994

SELYA, Circuit Judge. It is trite, but true, that not
SELYA, Circuit Judge.

every wrong has a remedy much less a remedy wholly satisfactory

to the purported victims. This litigation illustrates the point

in the context of an appeal matching the plaintiffs, a group of

borrowers who complain that they were swindled, against the

Federal Deposit Insurance Corporation (FDIC), in its capacity as

liquidating agent for the now defunct Bank for Savings (the

Bank). Specifically, plaintiffs challenge district court orders

granting summary judgment against them in respect to (1) claims

that they originally brought against the Bank, and (2)

counterclaims pressed against them by the FDIC to recover amounts

allegedly due on certain promissory notes payable to the Bank.

In disposing of the matter, the district court wrote at some

length, see Vasapolli v. Rostoff, F. Supp. (D. Mass.

1994) [No. 92-11501-K], and we agree with that court's central

conclusions: plaintiffs' claims for fraudulent inducement,

misrepresentation, and negligence are barred by the D'Oench,

Duhme doctrine and 12 U.S.C. 1823(e); plaintiffs' claims of

duress and fraud in the factum cannot survive scrutiny;

plaintiffs' affirmative defenses to the counterclaims are

impuissant; and none of the plaintiffs is entitled to benefit

from a belated effort to interject into the decisional calculus

an incorrectly computed figure contained in a writ of execution

issued by a Maine state court in a related proceeding.

Consequently, we affirm the judgment below.

I. BACKGROUND
I. BACKGROUND

2

We abjure a detailed, fact-laden account in favor of a

simple sketch. Because two of the orders that we are reviewing

arose under the aegis of Fed. R. Civ. P. 56, we construct this

sketch, and limn the material facts, in the light most hospitable

to the appellants.

The myriad plaintiffs in this civil action are bound

together by what appears in retrospect to have been a serious

error in judgment: they all borrowed money from the Bank in

connection with the purchase of condominium units from Steven M.

Rostoff or business entities controlled by him. Although each

plaintiff's predicament is slightly different, the record reveals

a consistent pattern of chicanery practiced by Rostoff and

certain bank employees. In a typical instance, a plaintiff

purchased a condominium based on multiple misrepresentations by

Rostoff such as: that the unit had been completely renovated and

was being sold at a substantial discount from market value; that

the unit could be resold profitably through Rostoff at the end of

one year; and that the unit owner would incur no out-of-pocket

expenses during the period of his ownership. Bank officials

abetted these misrepresentations in divers ways, including the

procurement of inflated appraisals.

Rostoff's scheme climaxed in a string of high-pressure

closings scheduled at 15-minute intervals on the Bank's premises.

The plaintiffs received little notice of when the closings were

to occur many of them were held at night and Rostoff did not

provide them with the relevant documents until they arrived at

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the Bank. Rostoff appeared to have free run of the Bank's

offices, sometimes opening the outer door to let purchasers

enter.

Among other things, the plaintiffs allege that,

although they had applied to the Bank for long-term loans, the

actual documents presented to them for signature were short-term

notes, each of which necessitated a balloon payment at the end of

a one year or three-year term.1 If a plaintiff objected, he was

told that he would lose his deposit unless he signed the papers

then and there.

After they discovered Rostoff's cozenage, the

plaintiffs ceased payment on the notes; the Bank foreclosed many

of the mortgages; and federal prosecutors indicted (and

eventually convicted) Rostoff and certain Bank employees on

criminal charges. While the prosecution was still embryonic, a

group composed of allegedly defrauded borrowers brought a civil

action in a Massachusetts state court against Rostoff, the Bank,

and other defendants.2 In their suit, plaintiffs sought

variegated relief under theories of fraud, conspiracy, breach of

contract, negligence, racketeering, deceptive trade practices,

and the like. The Bank counterclaimed, seeking recovery from the

plaintiffs under their promissory notes. In response to the

1Eleven plaintiffs extended the terms of their loans by
subsequent written agreement with the Bank.

2The complaint was subsequently amended to add additional
plaintiffs and defendants. A total of 17 borrowers appear as
appellants in this proceeding.

4

counterclaims, the plaintiffs asserted numerous affirmative

defenses, averring, among other things, that they had been

fraudulently induced to sign the notes.

The Bank capsized in March of 1992. The FDIC stepped

in as liquidating agent and, after it had replaced the Bank in

the pending civil action, removed that action to the United

States District Court for the District of Massachusetts. In due

course, the FDIC sought, and attained, summary judgment. See

Vasapolli, F. Supp. at [slip op. at 22]. In essence, the

lower court found that plaintiffs' claims of fraudulent

inducement, misrepresentation, and negligence were barred by the

D'Oench, Duhme rule and 12 U.S.C. 1823(e), and that plaintiffs'

claims of economic duress and fraud in the factum were rendered

nugatory by the lack of a sufficient factual predicate. See

Vasapolli, F. Supp. at [slip op. at 9-21].

Consistent with these determinations, the court granted

brevis disposition on all remaining causes of action urged by the

plaintiffs against the FDIC. At the same time, the court

resolved thirteen counterclaims in the FDIC's favor, and,

thereafter, permitted the FDIC to file five more counterclaims,

which the court then resolved on the same basis. Finding no

satisfactory reason for delay, the court entered a final judgment

disposing of all claims and counterclaims between the plaintiffs

and the FDIC. See Fed. R. Civ. P. 54(b).

The plaintiffs then moved for relief from judgment,

asserting for the first time that sums used in a previous Maine

5

proceeding, though incorrectly calculated, were entitled to full

faith and credit. The district court denied the motion. This

appeal followed.

II. APPLICABLE LEGAL PRINCIPLES
II. APPLICABLE LEGAL PRINCIPLES

We set out in somewhat abbreviated form the two sets of

legal principles that together electrify the beacon by which we

must steer.

A. The Summary Judgment Standard.
A. The Summary Judgment Standard.

Summary judgment is appropriate when the record

reflects "no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(c). For purposes of this determination, the term

"genuine" means that "the evidence about the fact is such that a

reasonable jury could resolve the point in favor of the nonmoving

party . . . ." United States v. One Parcel of Real Property,

Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204

(1st Cir. 1992). Similarly, the term "material" means that the

fact has the potential to "affect the outcome of the suit under

the governing law." Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

An order granting summary judgment engenders de novo

review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993);

Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.

1992). In performing this chore, we scrutinize the summary

judgment record in the light most congenial to the losing party,

and we indulge all reasonable inferences in that party's favor.

6

See Pagano, 983 F.2d at 347.

B. The D'Oench, Duhme Doctrine.
B. The D'Oench, Duhme Doctrine.

The FDIC assumes two separate roles when a bank

collapses. As receiver, the FDIC manages the failed bank's

assets; in its corporate capacity, the FDIC insures the failed

bank's deposits. See Timberland Design, Inc. v. First Serv. Bank

for Sav., 932 F.2d 46, 48 (1st Cir. 1991) (per curiam). The

FDIC's options when the death knell sounds include liquidating

the failed bank or, preferably, arranging the purchase and

assumption of some or all of its assets and liabilities by a

healthy bank. If undue disruption is to be avoided, a purchase

and assumption arrangement often must be executed in great haste.

It follows, therefore, that both in deciding what course of

action to take regarding a failed bank and thereafter in

effectuating the course of action chosen, the FDIC must be able

to rely confidently on the bank's records as an accurate

portrayal of its assets.

Mindful of this reality, the Supreme Court more than

half a century ago acted to protect the FDIC and the public funds

it administers by formulating a special doctrine of estoppel.

See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942). The

D'Oench, Duhme doctrine prohibits bank borrowers and others from

relying upon secret pacts or unrecorded side agreements to

diminish the FDIC's interest in an asset by, say, attempting to

thwart its efforts to collect under promissory notes, guarantees,

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and kindred instruments acquired from a failed bank.3

Borrowers' claims and affirmative defenses are treated the same

under the doctrine. See Timberland, 932 F.2d at 49-50. Of

particular pertinence to this case, the secret agreements

prohibited by the D'Oench, Duhme rule are not limited to promises

to perform acts in the future. See, e.g., Langley v. FDIC, 484

U.S. 86, 92, 96 (1987) (holding that the doctrine extends to

conditions to payment of a note, including the truth of express

3Congress subsequently codified the D'Oench, Duhme doctrine.

The codification provides:

No agreement which tends to diminish or
defeat the interest of the [FDIC] in any
asset acquired by it under this section or
section 1821 of this title, either as
security for a loan or by purchase or as
receiver of any insured depository
institution, shall be valid against the
[FDIC] unless such agreement
(1) is in writing,
(2) was executed by the depository
institution and any person claiming an
adverse interest thereunder, including the
obligor, contemporaneously with the
acquisition of the asset by the depository
institution,
(3) was approved by the board of
directors of the depository institution or
its loan committee, which approval shall be
reflected in the minutes of said board or
committee, and
(4) has been, continuously, from the
time of its execution, an official record of
the depository institution.

12 U.S.C.A. 1823(e) (West 1989). It remains an open question
whether the judicially created doctrine and its statutory
counterpart are coterminous. See Bateman v. FDIC, 970 F.2d 924,

926-27 (1st Cir. 1992). This appeal does not require us to probe
the point. Accordingly, we shall use phrases like "the D'Oench,

Duhme doctrine" to refer indiscriminately both to the judicially

spawned doctrine and to its statutory reincarnation.

8

warranties).

III. ANALYSIS
III. ANALYSIS

Appellate courts have no monopoly either on sagacity or

on clarity of expression. Thus, when a district court produces a

cogent, well-reasoned opinion that reaches an eminently correct

result, a reviewing tribunal should not write at exceptional

length merely to put matters in its own words. See, e.g., In re

San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st

Cir. 1993). So it is here. We, therefore, affirm the judgment

for substantially the reasons articulated in the lower court's

opinion. We add only a few observations, largely parallel to

that court's holdings, to place the facts and controlling legal

principles in proper perspective.

First: It is settled beyond peradventure that both
First:

misrepresentation and fraudulent inducement are within D'Oench,

Duhme's sphere of influence. See Levy v. FDIC, 7 F.3d 1054, 1057

n.6 (1st Cir. 1993); McCullough v. FDIC, 987 F.2d 870, 874 (1st

Cir. 1993); In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332,

1346-47 (1st Cir. 1992). Undaunted, the plaintiffs argue that

D'Oench does not apply here for two reasons: because the fraud

infected appraisals that form part of the Bank's official

records, and because the unusual terms of the transactions should

have alerted even a casual reader of those records to the fraud.

Assuming for argument's sake that the transactions were

patently bogus, and that a routine analysis of the Bank's records

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would have indicated as much,4 this set of circumstances still

would not suffice to salvage the plaintiffs' case. The D'Oench,

Duhme doctrine comes into play to pretermit many transactional

claims against the FDIC even when due diligence could easily have

unmasked the fraud and plaintiffs' claims of misrepresentation

and fraudulent inducement fall within this generality.

There is, to be sure, an exception for claims that are

premised on a breach of an agreement or warranty that is itself

contained in the failed bank's records. In this case, however,

the plaintiffs have not succeeded in identifying any violation of

a specific contractual provision or assurance contained in the

Bank's records. It follows inexorably that the district court

properly invoked the D'Oench, Duhme doctrine in granting summary

judgment to the FDIC despite the plaintiffs' claims of

misrepresentation and fraudulent inducement. See McCullough, 987

F.2d at 873-74; 604 Columbus, 968 F.2d at 1346-47.

Second: Conventional wisdom holds that claims or
Second:

affirmative defenses premised on duress are within the orbit of,

and barred by, the D'Oench, Duhme rule. See, e.g., Newton v.

Uniwest Fin. Corp., 967 F.2d 340, 347 (9th Cir. 1992) (holding

that duress renders an agreement voidable, not void, and that the

D'Oench, Duhme rule applies to agreements that are voidable);

Bell & Murphy & Assocs. v. Interfirst Bank Gateway, N.A., 894

F.2d 750, 754 (5th Cir.) (holding that the presence of economic

4We hasten to add that, given Rostoff's wiliness, this
assumption seems something of a stretch.

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duress is irrelevant to the operation of the D'Oench, Duhme

rule), cert. denied, 498 U.S. 895 (1990). A few courts have

suggested that, in certain circumstances, claims of duress can

escape the clutches of the D'Oench, Duhme doctrine. See, e.g.,

Desmond v. FDIC, 798 F. Supp. 829, 836-39 (D. Mass. 1992)

(distinguishing between duress in the negotiating process and

"external" duress, and applying the D'Oench, Duhme doctrine only

to the former); see also RTC v. Ruggiero, 977 F.2d 309, 314 (7th

Cir. 1992) (declining to reach question of whether duress is

covered by D'Oench); FDIC v. Morley, 867 F.2d 1381, 1385 n.5

(11th Cir.) (similar; citing district court cases on both sides

of the proposition), cert. denied, 493 U.S. 819 (1989); cf. RTC

v. North Bridge Assocs., Inc., 22 F.3d 1198, 1208 (1st Cir. 1994)

(permitting further discovery anent duress despite RTC's argument

that D'Oench bars such a defense).

The plaintiffs invite us to lurch into this wilderness,

asserting that their case exemplifies the sort of "external

duress" that can sidestep the D'Oench, Duhme rule. We decline

the invitation. The short, dispositive reason for refusing to

embark on this journey is that the facts of this case, even when

viewed most sympathetically to the plaintiffs, cannot support a

finding of duress.

Under Massachusetts law, a party claiming duress can

prevail if he shows that (1) "he has been the victim of a

wrongful or unlawful act or threat" of a kind that (2) "deprives

the victim of his unfettered will" with the result that (3) he

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was "compelled to make a disproportionate exchange of values."

International Underwater Contractors, Inc. v. New England Tel. &

Tel. Co., 393 N.E.2d 968, 970 (Mass. App. Ct. 1979) (citations

omitted). Alternatively, a party claiming duress can prevail by

showing:

(1) That [he] involuntarily accepted the terms of
another; (2) that circumstances permitted no other
alternative; and (3) that said circumstances were the
result of coercive acts of the opposite party.

Ismert & Assocs., Inc. v. New England Mut. Life Ins. Co., 801

F.2d 536, 544 (1st Cir. 1986) (citations omitted).

Here, the plaintiffs seek to ground their duress claim

on the high-pressure atmosphere of the closings and the lack of

sufficient time to examine the closing documents. This is simply

not the type and kind of duress that Massachusetts law credits.

Coercion and fear, rather than greed, are the stuff of duress.

Thus, the authorities are consentient that the presence of a

profit motive negates the coercion or fear that is a sine qua non

for a finding of duress. See 13 Samuel Williston, A Treatise on

the Law of Contracts 1604 (3d ed. 1970); see also Coveney v.

President & Trustees of Coll. of Holy Cross, 445 N.E.2d 136, 140

(Mass. 1983). Since any pressure that permeated the closings

took a toll only because the plaintiffs feared losing out on a

potentially profitable business opportunity, their claim of

duress is a mirage.

In the alternative, plaintiffs assert that the prospect

of losing their deposits created coercion. But even if they felt

this fear, the threat, at worst, was that they would have to

12

bring a legal action to recover their deposits, not that the

deposits would be lost altogether. We concur with the lower

court, F. Supp. at [slip op. at 12-15], that the

circumstances of the closings, taken in the light most favorable

to the plaintiffs, could not constitute legally cognizable

duress. See, e.g., Ismert, 801 F.2d at 549-50; International

Halliwell Mines, Ltd. v. Continental Copper & Steel Indus., Inc.,

544 F.2d 105, 108-09 (2d Cir. 1976). Hence, the district court

appropriately granted summary judgment on this issue.5

Third: Relying on New Connecticut Bank & Trust Co. v.
Third:

Stadium Mgmt. Corp., 132 B.R. 205, 210 (D. Mass. 1991), a case

which held that the D'Oench, Duhme rule does not prohibit claims

for negligent impairment of the collateral securing a loan, the

plaintiffs assign error to the district court's conclusion that

plaintiffs' claims for negligent misrepresentation are barred.

Though we eschew comment on the correctness of New Connecticut

Bank, we nonetheless reject plaintiffs' asseveration.

New Connecticut Bank involved guarantors who alleged

negligence on the part of a financial institution in its exercise

of control over the operations of the company whose loans had

been guaranteed. Id. at 207 n.1. The case at hand is readily

5The plaintiffs' claim of duress is flawed in another
respect as well. A contract signed under duress is voidable, but
not automatically void. See Newton, 967 F.2d at 347; DiRose v.

PK Mgmt. Corp., 691 F.2d 628, 633-34 (2d Cir. 1982), cert.

denied, 461 U.S. 915 (1983). By accepting the funds and failing

to seek a remedy based on duress within a reasonable time after
executing the notes, the plaintiffs forfeited any entitlement to
relief on this basis. See In re Boston Shipyard Corp., 886 F.2d

451, 455 (1st Cir. 1989).

13

distinguishable, for the plaintiffs' claims of negligence are

based on alleged misrepresentations relating to the formation of

an agreement with the bank. In this sense, then, plaintiffs'

claims are fundamentally different from those asserted in New

Connecticut Bank.

Moreover, negligent misrepresentations and intentional

misrepresentations are sisters under the skin. Each partakes of

the flavor of the secret agreements at which the D'Oench, Duhme

rule is aimed. And plaintiffs cannot evade the rule by the

simple expedient of creatively relabelling what are essentially

misrepresentation claims as claims of negligence. See generally

McCullough, 987 F.2d at 873 (extending 1823(e) to cover

misrepresentation by omission so that parties cannot avoid the

statute's effect by "artful pleading"); cf. Dopp v. Pritzker,

F.3d , (1st Cir. 1994) [No. 93-2373, slip op. at 12]

("[M]erely calling a dandelion an orchid does not make it

suitable for a corsage."). To hold otherwise would defy common

sense and eviscerate the D'Oench, Duhme doctrine.

Because plaintiffs' claims of negligence are nothing

more than a rehash of their pretermitted misrepresentation

claims, the district court appropriately granted the FDIC's

motion for brevis disposition of those claims. See, e.g.,

McCullough, 987 F.2d at 873; 604 Columbus, 968 F.2d at 1346-47.

Fourth: A claim premised on fraud in the factum is not
Fourth:

foreclosed by the D'Oench, Duhme rule. See Langley, 484 U.S. at

93-94. The plaintiffs attempt to squeeze within this isthmian

14

exception. Despite their strenuous efforts, they have presented

no adequate showing that the skulduggery of which they complain

amounted to fraud in the factum. We explain briefly.

Fraud in the factum occurs when a party is tricked into

signing an instrument without knowledge of its true nature or

contents. See id. at 93. Thus, to constitute fraud in the

factum a misrepresentation must go to the essential character of

the document signed, not merely to its terms. See 604 Columbus,

968 F.2d at 1346-47 (citing other cases). For example, if a

person signs a contract, having been led to believe that it is

only a receipt, the stage may be set for the emergence of fraud

in the factum.

Here, the plaintiffs allege that they were the victims

of fraud in the factum because they thought they were signing

long-term notes when they actually signed short-term notes. We

agree with the district court, see Vasapolli, F. Supp. at

[slip op. at 20], that this alleged disparity goes to the

transactional terms, not to the very nature of the agreements.

Since it is not disputed that the plaintiffs knew they were

signing promissory notes, the Bank's conduct, even if

unscrupulous, cannot be deemed fraud in the factum. Accordingly,

the district court lawfully granted summary judgment against the

plaintiffs on this issue.

Fifth: Following the entry of judgment, the plaintiffs
Fifth:

moved under Fed. R. Civ. P. 60(b)(6) for relief from the

judgment. The district court treated the motion as a motion to

15

alter or amend the judgment under Fed. R. Civ. P. 59(e). We

agree both with the district court's approach and with its

recharacterization. In addressing a post-judgment motion, a

court is not bound by the label that the movant fastens to it.

If circumstances warrant, the court may disregard the movant's

taxonomy and reclassify the motion as its substance suggests.

See Vargas v. Gonzales, 975 F.2d 916, 917 (1st Cir. 1992). That

is the case here.

In their motion, the plaintiffs hinted at some

unhappiness with the use of Massachusetts law to calculate

amounts due on mortgage notes relating to certain properties in

Maine.6 The plaintiffs also made a more specific claim in

regard to two borrowers, asserting that the amounts calculated in

a prior Maine proceeding must be accorded full faith and credit

in the instant case.7 See 28 U.S.C. 1738 (1988).

We need not reach questions of whether Maine or

Massachusetts law governs the calculation of deficiency amounts,

or of whether the two plaintiffs are entitled to the benefit of

the errors committed in the course of the earlier action. We

review a trial court's decision denying a Rule 59(e) motion to

6When a mortgagee purchases foreclosed property at public
sale, Maine law limits deficiency amounts to the difference
between the fair market value of the mortgaged property at the
time of public sale and the amount that the court determines is
due on the mortgage. See Me. Rev. Stat. Ann. tit. 14, 6324

(West 1980 & Supp. 1993).

7In regard to this aspect of plaintiffs' motion, it appears
that the FDIC's attorney made an error in the handling of the
Maine foreclosure actions. As a result, the Maine judgments
understated the liability of these two borrowers.

16

alter or amend a judgment for manifest abuse of discretion, see

Appeal of Sun Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987),

cert. denied, 486 U.S. 1055 (1988), and we discern no hint of any

such abuse in this instance.

It is crystal clear that the plaintiffs were aware of

the earlier Maine actions at and after the time when the FDIC

first moved for summary judgment. Throughout the time between

the FDIC's first motion for summary judgment and the entry of

final judgment a period that lasted over one year the

plaintiffs failed either to request that the court apply Maine

law in lieu of Massachusetts law, or to raise the "full faith and

credit" argument. These ideas surfaced only after the district

court ruled against the plaintiffs and entered final judgment.

This was too late.

The plaintiffs have offered no plausible reason for

waiting until after the entry of judgment to inform the court of

the prior proceedings or to object to the amounts claimed all

along by the FDIC. By like token, having briefed and argued all

pertinent state-law issues in terms of Massachusetts law,

plaintiffs have no basis for condemning the district court's

unwillingness to take a second look after it had entered final

judgment. See Fashion House, Inc. v. K Mart Corp., 892 F.2d

1076, 1095 (1st Cir. 1989) (explaining that courts will hold

parties to positions advanced before judgment regarding choice of

law).

Unlike the Emperor Nero, litigants cannot fiddle as

17

Rome burns. A party who sits in silence, withholds potentially

relevant information, allows his opponent to configure the

summary judgment record, and acquiesces in a particular choice of

law does so at his peril. In the circumstances of this case, we

cannot say that the district court's refusal to grant the

plaintiffs' post-judgment motion constituted an abuse of

discretion. See Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90

n.3 (1st Cir. 1993) (affirming denial of relief under Rule 59(e)

where the information on which the movant relied was neither

unknown nor unavailable when the opposition to summary judgment

was filed), cert. denied, 114 S. Ct. 2133 (1994); Fragoso v.

Lopez, 991 F.2d 878, 887-88 (1st Cir. 1993) (explaining that the

district court is justified in denying a Rule 59(e) motion that

relies on previously undisclosed facts when the movant knew of

the facts, yet, without a good excuse, failed to proffer them in

a timeous manner); FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st

Cir. 1992) (holding that the district court has discretion to

deny a Rule 59(e) motion that rests on grounds "which could, and

should, have been [advanced] before judgment issued") (citation

omitted).8

8Even if plaintiffs' post-judgment motion were to be
considered under Rule 60(b)(6) rather than Rule 59(e), the
outcome would be the same. See Perez-Perez v. Popular Leasing

Rental, Inc., 993 F.2d 281, 284 (1st Cir. 1993) (concluding that,

absent exceptional circumstances, motions under Rule 60(b)(6)
must raise issues not available to the moving party prior to the
time final judgment entered); see also Rodriguez-Antuna v. Chase

Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989) (holding that

abuse-of-discretion standard applies in reviewing trial court's
disposition of Rule 60(b) motions).

18

IV. CONCLUSION
IV. CONCLUSION

We need go no further. In the end, the plaintiffs'

proposed causes of action are either barred, or unsubstantiated,

or both. Hence, the district court did not err in concluding

that the plaintiffs had failed to demonstrate a trialworthy issue

on their direct claims. By the same token, the court committed

no error in holding that the plaintiffs, as counterdefendants,

had exhibited no valid defense against the FDIC's particularized

demands for money due.

Affirmed.
Affirmed.

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