
USCA1 Opinion

	




                            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                                          3          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,                                          7          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                                          9          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.                                          10          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                                          11          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.          ________                                          19
