
USCA1 Opinion

	




                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1448                            FEDERAL FINANCIAL GROUP, INC.,                                 Plaintiff, Appellee,                                          v.                                CHARLES E. SERRA, JR.,                              a/k/a CHARLES SERRA, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Joyce L. Alexander, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Robert H. Greene for appellant.            ________________            Carolyn McAboy with whom John A.  Doonan and Doonan &  Graves were            ______________           _______________     ________________        on brief for appellee.                                 ____________________                                  November 15, 1996                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 Per Curiam.   Although the transactions underlying  this                 __________            appeal  are complicated,  the  central events  may be  simply            described.  In 1985, defendant in the district court, Charles            Serra, bought  two trucks, borrowing the funds  from the Bank            of  New England  and  using the  trucks  as collateral.    In            October  1986,  in  a  transaction  apparently  conducted  by            Serra's agent, who  managed the trucks, the notes were rolled            over  and new notes were  issued with some  changes in terms.            There was a default on the  notes.  Serra now claims that the            agent did not have authority to roll over the notes.                 In  the meantime, the trucks have been sold by the bank.            The present suit by a successor to the bank's interest is for            the deficiency.  In the district court, the magistrate  judge            granted summary judgment for the plaintiff.  On appeal, Serra            claims that the action was time-barred, that he is not liable            on  the assertedly unauthorized new  notes, and that the sale            of the trucks was not commercially reasonable.  Our review is            de  novo, and  we draw  factual inferences in  Serra's favor.            ________            Grenier  v. Vermont Log Bldgs.,  Inc., 96 F.3d  559, 562 (1st            _______     _________________________            Cir. 1996).                 The  statute of  limitations claim  is easily  resolved.            The  four-year  statute of  limitations  relied  upon by  the            defendant does not apply to this promissory note secured by a            chattel  mortgage, because it is not  a transaction in goods.            See,  e.g., Universal  Underwriters  Ins. Co.  v. Ross,  1991            ___   ____  _________________________________     ____                                         -2-                                         -2-            Mass. App. Div. 23, 25 (Mass. Dist. Ct. 1991).  As to whether            the six-year or twenty-year statutory period applies, we need            not decide the question because both cover the present claim.            Either  one   was  still   running  when  the   FDIC  assumed            receivership  in  January  1991,  extending  the  limitations            period by an  additional six  years pursuant to  12 U.S.C.               1821(d)(14).                 Turning to the validity of the new notes, Serra's denial            of his agent's authority  to make them rests in  some measure            on  alleged unwritten  limitations  on the  written power  of            attorney  used  by  the  agent,  which  was  presumably  made            available  to the  bank  at the  time  of refinancing.    The            district  court  magistrate  disregarded  these  limitations,            relying on D'Oench, Duhme & Co.  v. FDIC, 315 U.S. 447 (1942)                       ____________________     ____            and its statutory counterpart, 12 U.S.C.   1823(e)(1).                 We  see no reason to  pursue the interesting question of            whether  and  how  far   D'Oench,  Duhme  applies  to  secret                                     _______________            agreements  that  were not  made with  a  bank but  which may            affect a document that the bank relied on.   It is not at all            clear  that the  power of  attorney  authorized the  agent to            execute both  of the new  notes.  Thus,  even if the  written            power  of attorney  were read  literally, without  giving any            weight  to the  alleged unwritten  limitations, it  might not            show  that Serra's agent did have authority to roll over both            notes.                                         -3-                                         -3-                 However,  we   see  no   need  to  remand   for  further            proceedings to  determine the agent's actual  authority or to            consider claims  of apparent  authority or estoppel,  both of            which would  require more factual development.   If the notes            were  rolled over  by  mistake or  without  authority, it  is            nevertheless the  case that Serra benefited  directly because            the  cancellation of the old  notes discharged his  debt.  To            allow  Serra to escape liability on the  new notes would be a            patent case of unjust enrichment.                 This principle is established in Massachusetts, and  its            application to  erroneous bank  transactions is plain.   See,                                                                     ___            e.g., FDIC v.  Csongor, 464 N.E.2d 942,  945-46 (Mass. 1984);            ____  ____     _______            National Shawmut Bank of Boston v. Fidelity Mutual Life  Ins.            _______________________________    __________________________            Co., 61 N.E.2d 18,  22 (Mass. 1945); see also  Restatement of            ___                                  ________  ______________            Restitution   1 (1937).  Unjust enrichment was pleaded in the            ___________            complaint  and nothing  in the  record suggests  any possible            answer  to the claim.  As the terms of the new notes are more            favorable to Serra, their enforcement--rather than any effort            to revive the original notes--works in Serra's favor.                 Finally, it is true that deficiencies in notice required            the  plaintiff to  show, pursuant  to Shawmut  Bank, N.A.  v.                                                  ___________________            Chase,  609  N.E.2d 479,  483  (Mass. App.  Ct.),  aff'd, 624            _____                                              _____            N.E.2d  541 (Mass. 1993),  that the  professionally conducted            auction  at  which  the  trucks were  sold  was  commercially            reasonable.    But   we  agree  with  the  appraisal  of  the                                         -4-                                         -4-            magistrate judge in concluding  that such a showing  had been            made.  See Nadler v. Baybank Merrimack Valley, N.A., 733 F.2d                   ___ ______    ______________________________            182, 183-84  (1st Cir. 1984).   Serra has  been imaginatively            defended but his liability is clear.                  Affirmed.                 ________                                         -5-                                         -5-
