February 16, 1993
                UNITED STATES COURT OF APPEALS
                    For The First Circuit
                                         

No. 92-1805

             RESOLUTION TRUST CORPORATION, ETC.,

                    Plaintiffs, Appellees,

                              v.

                   DANIEL M. DRISCOLL, JR.,
             INDIVIDUALLY AND AS HE IS TRUSTEE OF
              QUINAQUISSET REALTY TRUST, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]
                                                    

                                         

                            Before

                     Breyer, Chief Judge,
                                        
             Higginbotham, Senior Circuit Judge,*
                                               
                  and Boudin, Circuit Judge.
                                           

                                         

J. Daniel Lindley with whom Peter  Antell and Antell &amp;  Associates
                                                                  
were on brief for appellants.

James H.  Wexler with whom Bennett  H. Klein  and Kotin, Crabtree,
                                                                  
and Strong were on brief for appellees.
      

                                         

                      February 16, 1993
                                         
                
*of the Third Circuit, sitting by designation.

     BOUDIN, Circuit Judge.   This appeal is one branch  of a
                          

complex  commercial  matter  still  pending  in the  district

court.  The case derives from a set of entangled transactions

that  have been  further complicated  by an  intervening bank

failure.    Perceiving reasons  for  a  prompt resolution  of

claims  against  one  party,  the district  court  entered  a

separate  final judgment as to  those claims, and this appeal

followed.  We affirm.

                              I.

     In the mid-1980's, the Fox Run  Realty Trust ("Fox Run")

set  out  to  develop   a  residential  complex  in  Mashpee,

Massachusetts, known as "Willowbend."   In December 1986, the

Quinaquisset  Realty Trust  ("Quinaquisset") conveyed  to Fox

Run 152 acres of land adjoining the Fox Run holding, allowing

the  project  to  be  expanded.   In  exchange,  Quinaquisset

received a large payment and the promise of a number of house

lots  and   of  condominiums   or  permits  for   them  after

subdivision  approval.  Fox Run's obligations to Quinaquisset

were secured  by a first mortgage  on the 152 acres.   At the

same time, Sentry Federal  Savings Bank ("Sentry") loaned Fox

Run $13  million to  finance Willowbend,  taking back  a note

secured by  a mortgage on Willowbend, subordinated  as to the

152 acres.

     In  October 1987,  Fox Run  conveyed to  Quinaquisset 20

house lots and the rights to 22 or 23 condominium permits (we

                             -2-

are given different numbers in the briefs).  The Quinaquisset

mortgage  on  the 152  acres was  discharged.   Fox  Run then

repurchased the permit rights for  cash and an unsecured $1.1

million  note   to  Quinaquisset.    Then,   in  April  1989,

Quinaquisset borrowed $950,000 from  Sentry, giving Sentry  a

note and  depositing with it  as collateral the  earlier $1.1

note  reflecting Fox  Run's debt  to Quinaquisset.    At this

point,  Fox Run was  indebted to  Quinaquisset and  both were

indebted to Sentry.

     In September 1989 Fox Run fell  into default on payments

to Sentry, and Sentry  began to foreclose on Willowbend.   In

April  1990, Sentry  and Fox  Run entered  into a  settlement

agreement; Fox Run  agreed to convey  title in Willowbend  to

Sentry  or  to  Evergreen Holding  Company  ("Evergreen"),  a

wholly  owned subsidiary of Sentry, and  Sentry agreed not to

claim  under  the  note   against  two  individuals  who  had

guaranteed  Fox Run's debt  to Sentry.   Sentry's mortgage on

Willowbend,  however, was  not  discharged; rather  Evergreen

took the property subject to Sentry's  power to sell pursuant

to the mortgage.

     In the meantime, it  appears that Fox Run had  ceased in

August 1989  to make  payments  to Quinaquisset  on the  $1.1

million note  payable to Quinaquisset  but held by  Sentry as

collateral.   In November  1989, Quinaquisset fell  behind in

payments on  its own $950,000 note  to Sentry.  In  May 1990,

                             -3-

Quinaquisset was in default,  and Sentry brought suit  on the

$950,000 note in Middlesex  Superior Court, claiming not only

against Quinaquisset's trustee, Daniel M. Driscoll, Jr.,  but

also against  a number of individuals who  had guaranteed the

note  ("the  guarantors").   For  simplicity,  we will  refer

collectively  to the  trustee and  guarantors, appellants  in

this court, as "Quinaquisset."

     Sentry  also  proceeded with  efforts  to  foreclose the

Willowbend mortgage,  seeking to  sell both the  property and

the associated rights to the condominium permits that Fox Run

had transferred  to Quinaquisset  and then reacquired.   When

Quinaquisset  threatened   to  delay  the  mortgage  sale  by

litigation, Sentry and Quinaquisset entered into an agreement

on  June 22, 1990.   That agreement (in  the first paragraph)

released Sentry's  mortgage on  the 20 house  lots previously

conveyed   to  Quinaquisset;  and  Quinaquisset,  subject  to

certain  reservations  of  rights  described  in  the margin,

agreed  (in   the  second   paragraph)  not  to   enjoin  the

foreclosure sale  "or to  take any further  action subsequent

thereto with reference to the validity of said foreclosure or

the  [m]ortgages relating  thereto."1   The foreclosure  sale

                    

     1This  promise was  qualified in  the same  paragraph by
this language: "provided, however, that Quinaquisset reserves
its  rights, claims  and remedies,  if any,  relating to  (i)
Sentry's   dealings  with  [the   two  individuals   who  had
guaranteed  Fox  Run's note  to  Sentry],  and (ii)  Sentry's
dealings with  Quinaquisset  regarding the  [m]ortgage  being
released  . .  . ."    In the  third  paragraph, the  parties

                             -4-

proceeded,  there  were multiple  bidders,  and  at the  sale

Evergreen acquired Willowbend.

     In  September 1990,  Sentry  failed and  the  Resolution

Trust Company ("RTC") became its receiver.  The RTC created a

new  bank  entity; the  RTC  became  conservator of  the  new

entity,  which  received   various  Sentry  assets  including

Evergreen.  The RTC,  as receiver for Sentry, removed  to the

district  court  the litigation  in Middlesex  Superior Court

brought  by Sentry  against  Quinaquisset to  recover on  the

$950,000 note.  

                             II.

     On May  22, 1991, Quinaquisset  filed a new  pleading in

the  district  court action,  including  for  the first  time

Evergreen,   now   named   as  a   third   party   defendant.

Quinaquisset's amended consolidated answer,  counterclaim and

third party complaint  is one of those documents that portend

a lot of litigation.  Claims were directed against the RTC as

receiver  for  Sentry  and  conservator of  the  new  entity,

against Fox Run's trustees, and against Evergreen; there were

12  counts,  alleging  multiple  wrongs  and  numerous  legal

theories; and the relief  sought included recision of various

transactions, imposition of constructive trusts, and damages.

                    

agreed,  "with the  exception  of the  foregoing, to  reserve
without prejudice  their rights,  claims or remedies"  in the
Middlesex Superior Court action.

                             -5-

     As only the  claims against  Evergreen are  at issue  on

this appeal, we confine ourselves to the procedural steps and

rulings  concerning  it.    Describing  the  claims   against

Evergreen  is not  easy because  very little  in the  May 22,

1991, pleading  relates directly to  it.  There  are specific

allegations against others,  notably Sentry, including claims

of misrepresentation  and trickery  in the  transactions that

led  to  Quinaquisset's   discharge  of  its  mortgage,   the

reconveyance  of  the  permit  rights to  Fox  Run,  Sentry's

refusal to fund interest  payments by Fox Run on  its debt to

Quinaquisset, and  alleged attempts by Sentry  to cloud title

to the  house lots  conveyed to  Quinaquisset.   The pleading

does  claim that  Evergreen  holds  the  permit rights  in  a

constructive  trust  and  seeks   recision  of  the  original

transfer to Fox Run.

     In June 1991, Evergreen filed a motion to dismiss or for

summary judgment.  On September 10, 1991,  the district court

granted summary  judgment for Evergreen on  the count seeking

recision,  concluding  that  the  recision  count  sought  to

challenge Evergreen's title to Willowbend; this, the district

court found, was inconsistent with Quinaquisset's obligations

under  the agreement of June 22, 1990, quoted above, that had

permitted the mortgage sale  to proceed.  On April  21, 1992,

the  court  granted summary  judgment  for  Evergreen on  the

remaining  counts.  The court did not issue a written opinion

                             -6-

but  it  appears  that  the  dismissal was  premised  on  the

D'Oench, Duhme doctrine, which limits claims based on matters
              

not reflected in  bank records.  See D'Oench, Duhme  &amp; Co. v.
                                                         

FDIC, 315 U.S. 447 (1942).2
    

     On May 12, 1992, the district court ordered the separate

entry of  judgment  in  favor  of Evergreen  on  all  counts,

finding pursuant to  Fed. R. Civ. P. 54(b)  that there was no

just reason  for  delay.   We  pass over  related  procedural

history and  note that the  reason for the  separate judgment

stemmed from  an earlier determination by  the district court

that  the recision  claim against  Evergreen needed  a prompt

definitive resolution  so that  Evergreen could complete  the

sale   of  Willowbend   to  a   prospective  buyer.     Since

Quinaquisset was  seeking immediate  appellate review  of the

recision claim,  the district court thought  it suitable that

all  claims against Evergreen should  be before this court at

the same time.     Thus, the judgment  dismissing all  claims

against Evergreen is properly  before us; the balance of  the

                    

     2The  district  court  relied   on  the  doctrine  in  a
memorandum  and  order of  July  19,  1991, granting  summary
judgment  to  the  RTC  on all  counts  except  the  recision
request;  that  request had  been dismissed  by the  court in
early May  1991 based on the agreement  of June 22, 1990.  In
an order dated  May 12,  1992, the court  indicated that  the
same reasoning was implicated in Evergreen's case.

                             -7-

litigation involving other  parties remains  in the  district

court.3

                    

     3Quinaquisset contests the Rule 54(b)  certification but
its  argument is unpersuasive.  The thread of the argument is
that to  enter a judgment  facilitating a sale  of Willowbend
could  impair  Quinaquisset's  prospects  of  recovering  the
permit rights.  If so,  Quinaquisset was free to seek  a stay
of judgment from  the district  court or from  us.  Absent  a
showing that would warrant a stay, the desire to facilitate a
sale of assets, in connection with  a bank reorganization, is
a  perfectly good  ground for  the Rule  54(b) determination.
See generally  Curtiss-Wright Corp. v.  General Electric Co.,
                                                           
446 U.S. 1, 8 (1980).

                             -8-

                             III.

     Like  the  district  court  we separate  the  claim  for

recision  against Evergreen  from the  balance of  the claims

against  it.   Our reason  for doing  so is  that a  claim to

recover  property  is   the  one  line  of   attack  made  by

Quinaquisset that we can imagine succeeding against Evergreen

without a separate showing  of wrongful conduct by Evergreen.
                                                            

Putting to one side a possible D'Oench,  Duhme defense, there
                                              

might  be  circumstances   in  which  Evergreen--without  any

wrongdoing  on   its  part--became  a   holder  of   property

wrongfully taken by  Sentry or others from Quinaquisset.   In

that case,  whether by  recision, constructive trust  or some

other theory  or device, perhaps the property  could (in some

circumstances)  be reached  even though  in the  hands of  an

innocent possessor.

     The district court foreclosed this possibility by ruling

on September  10,  1991, that  the June  22, 1990,  agreement

between  the parties  prevented  such a  recovery.   Treating

Evergreen's title  as derived from the  foreclosure sale, the

district  court interpreted  the  agreement  as preventing  a

subsequent  attack  on the  resulting  title  and ruled  that

"Evergreen owns the  property free of any title defect  . . .

."  Quinaquisset asserts that the district court misconstrued

the agreement, ignoring the reservation of rights provisos.

                             -9-

     Subject  to the rights reservations, Quinaquisset agreed

in  the June 22 document not to obstruct the foreclosure sale

"or  to  take  any  further action  subsequent  thereto  with

reference  to  the  validity  of  said  foreclosures  or  the

[m]ortgages  relating thereto . . . ."  Evergreen argues that

"[t]he    clear meaning  of  the [agreement]  . .  .  is that

Quinaquisset agrees not  to take any  action to challenge  or

impair the foreclosure purchaser's title in Willowbend."  The

reservations  of  rights, it  argues,  were  meant to  retain

Quinaquisset's damage claims, and  not its right to institute

a  future  action  affecting   title  to  Willowbend  or  the

attendant permit rights.

     We think this interpretation not quite so clear as  does

Evergreen, the agreement being something less than a model of

clarity.   There  is, after  all, no  express promise  not to

"challenge or  impair  the foreclosure  purchaser's title  in

Willowbend."  But we agree that Evergreen's reading, endorsed

by  the  district  court,  is  better  than  any  alternative

reading, considering  the general language used ("any further

action  .  .  .  with  reference  to  the  validity  of  said

foreclosures or  the [m]ortgages relating  thereto") together

with the  purpose to protect the  foreclosure-sale buyer that

one  would expect in such circumstances.  If the "any further

action"  promise is  read in  this way,  then  it is  easy to

                             -10-

construe  the  even  more  general  language  of  the  rights

reservations to relate to other claims such as damages.

     We might  be more hesitant  to reach this  conclusion if

Quinaquisset had offered to us and the district court another

reasonable reading of the "any  further action" clause, or if

it  pointed to evidence produced or  promised in the district

court  to show that the  parties intended the  clause to have

some other meaning.   But no other reading has  been tendered

and  no   such  evidence   has  been  proffered.     Instead,

Quinaquisset emphasizes the rights reservations which, as  we

have noted, are quite  general, ought not readily be  read to

take back  in the proviso  what Quinaquisset appears  to have

promised immediately before, and  can easily be understood to

refer to other remedies such as damages.

     Given  the  district  court's  interpretation  which  we

sustain it becomes fruitless for Quinaquisset to argue, as it

does  at  length, that  it might  otherwise  have a  claim to

recover  the permits  from Evergreen.   Assuming it  had such

claims,  whether by  recision or  constructive trust,  it has

surrendered them  by  the agreement.    This court  need  not

decide  Quinaquisset's alternative,  last ditch  and facially

doubtful argument that  Evergreen never acquired the  permits

at all  (allegedly because  their acquisition  by Fox  Run in

October  1987  was  "illegal");  the  claim  cut  off by  the

judgment is  Quinaquisset's claim  to  recover property  from

                             -11-

Evergreen.    The judgment  does  not  address property  that

Evergreen never received in the foreclosure.

                             IV.

     Turning now to  the remaining claims  against Evergreen,

we sustain their  dismissal on  a ground not  adopted by  the

district court.  See Doe v.  Anrig, 728 F.2d 30, 32 (1st Cir.
                                  

1984) (court "free to affirm . . . on any ground supported by

the record").    Both parties  treat  the district  court  as

having  dismissed those  claims in  reliance on  the D'Oench,
                                                             

Duhme  doctrine, and we believe this is  so.  But there is no
     

district  court opinion applying D'Oench, Duhme to Evergreen.
                                               

Although  the  district court  did  discuss  the doctrine  as

applied  to  the  RTC,   Quinaquisset  seeks  to  distinguish

Evergreen's status under  the doctrine.  We  think that there

is  in  the  foreground  of  this  case  another   basis  for

sustaining  the  dismissal--the  failure  to  state  a  claim

against Evergreen--and we rest  our affirmance on that basis.

     Evergreen is admittedly a  separate corporation and  was

apparently  not  a party  to  Fox  Run's  acquisition of  the

permits or the  Fox Run-Sentry agreement.   The complaint may

in  a literal  sense "charge" Evergreen  with wrongs  such as

fraud, misappropriation, and unfair competition; but no facts

are  ever alleged  that connect  Evergreen with  the wrongful

acts  described.   The  complaint  does  nakedly assert  that

                             -12-

Evergreen is the "alter ego" of Sentry, the implication being

that it  is thereby  responsible for Sentry's  conduct.   Yet

Quinaquisset  alleges no  facts that,  if proved,  would even

arguably permit a court to impose liability on Evergreen  for

the  acts of  its parent  under  an alter  ego  theory.   See
                                                             

generally  United Electrical,  Radio and  Machine Workers  of
                                                             

America v.  163 Pleasant  Street Corporation, 960  F.2d 1080,
                                            

1092 (1st Cir. 1992).

     Similarly,  the  complaint  asserts  in  one  conclusory

sentence  that Fox  Run's  obligations to  Quinaquisset  were

"assumed  by  Sentry   or  Evergreen"  when   Willowbend  was

acquired.  Nothing  else in the complaint  identifies any act

or document reflecting such an assumption by Evergreen of Fox

Run's debt  to Quinaquisset or remotely  suggests the factual

basis for this claim.  Factual allegations in a complaint are

assumed  to be true when a court  is passing upon a motion to

dismiss,  but  this  tolerance   does  not  extend  to  legal

conclusions, Kadar Corp. v.  Milbury, 549 F.2d 230, 235  (1st
                                    

Cir.  1977), or to "bald  assertions."  Chongris  v. Board of
                                                             

Appeals of the Town of  Andover, 811 F.2d 36, 37 (1st  Cir.),
                               

cert. denied 483 U.S. 1021 (1987).
            

     It  is, of  course, true  that at  the start  of complex

litigation  a party  may not  have all  the facts,  so courts

normally  hesitate to dismiss under Fed.  R. Civ. P. 12(b)(6)

at the outset.   At the start, a reasonable  basis for belief

                             -13-

and an outline of what one might reasonably hope to prove may

suffice to permit discovery and ward off premature motions to

dismiss.   But Quinaquisset's complaint  against Evergreen is

deficient;   this  litigation  has persisted  for almost  two

years;  and yet  even  now Quinaquisset  is  still unable  to

explain  what  exactly  it  is  that  Evergreen  did that  is

wrongful.  The only claims at issue on this appeal are  those

relating  to Evergreen.   No amount of  embellished attack on

Fox  Run, Sentry or the RTC can replace what Quinaquisset has

still not supplied: a single, coherent, specific  description

of what Evergreen has done that is wrongful.

     Our appraisal of Quinaquisset's claims against Evergreen

is without prejudice to whatever claims it may assert against

others.   Part of its predicament  may be of its  own making:

for unexplained  reasons, it released  a mortgage on  part of

Willowbend, reconveyed valuable permit rights to Fox Run, and

took back an unsecured note on which Fox Run later defaulted.

On  the other hand,  this misstep, if  such it was,  does not

preclude  the   possibility  that   out  of  the   welter  of

surrounding events  a claim was created  against other active

participants.  Whether this  is so, and if so  whether such a

claim is  nevertheless barred by D'Oench,  Duhme, are matters
                                                

on which we have no occasion to pass at this time.

     We conclude that, apart from seeking to recover property

from Evergreen, Quinaquisset has failed to state a claim upon

                             -14-

which  relief can be granted.  The property recovery claim is

barred by the agreement for reasons already stated.  Thus the

balance of the claims fail under Fed. R. Civ. P. 12(b)(6) and

on this ground  we affirm the  district court's dismissal  of

those  claims.  It will  be time enough  to consider D'Oench,
                                                             

Duhme  when  the rest  of  this  litigation, now  nine-tenths
     

submerged like the proverbial iceberg, reaches this court.

     Affirmed. 
             

                             -15-
