
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1049        ROBERT SALOIS AND DIANNE E. SALOIS, NINON R. L. FREEMAN, AND DAVID M.         LEARY AND LINDA SCURINI-LEARY, INDIVIDUALLY AND ON BEHALF OF OTHERS                                 SIMILARLY SITUATED,                               Plaintiffs, Appellants,                                          v.         THE DIME SAVINGS BANK OF NEW YORK, FSB, HARRY W. ALBRIGHT, JR., JOHN         B. PETTIT, JR., WILLIAM J. MELLIN, WILLIAM J. CANDEE III, WILLIAM A.         VOLCKHAUSEN, JAMES E. KELLY, RALPH SPITZER, ROBERT G. TURNER, BRIAN            GERAGHTY, LAWRENCE W. PETERS, E. JUDD STALEY III, AND JOHN DOE                                      COMPANIES,                                Defendants, Appellees.                                _____________________        No. 97-1050                                ROBERT SALOIS, ET AL.                                Plaintiffs, Appellees,                                          v.                      THE DIME SAVINGS BANK OF NEW YORK, ET AL.                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Selya, Boudin, and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Evans J.  Carter with whom Hargraves,  Karb, Wilcox & Galvani  was            ________________           __________________________________        on brief for appellants.            William S.  Eggeling with  whom Roscoe Trimmier,  Jr., Darlene  C.            ____________________            _____________________  ___________        Lynch, Jane E. Willis, and Ropes & Gray were on brief for appellees.        _____  ______________      ____________                                 ____________________                                   November 3, 1997                                 ____________________                      STAHL, Circuit  Judge.  In the  mid-1980s defendant                      STAHL, Circuit  Judge.                             ______________            The Dime Savings Bank of New York, FSB ("Dime") made mortgage            loans to plaintiffs Dianne and Robert Salois, David M.  Leary            and Linda Scurini-Leary, and Ninon R. L. Freeman.  Plaintiffs            now appeal from the district court's dismissal on statutes of            limitations  grounds  of  various  federal and  Massachusetts            statutory claims  as well  as common-law  contract and  fraud            claims arising  from the  mortgage transactions.1   Defendant            cross-appeals from the court's denial of  its motion for Fed.            R.  Civ. P. 11  sanctions against plaintiffs'  attorneys.  We            affirm  the   district  court's  ruling   that  statutes   of            limitations barred all  of plaintiffs' claims and  uphold the            district   court's  denial  of  Dime's  motion  for  Rule  11            sanctions because that denial was not an abuse of the court's            discretion.                                            ____________________            1.    The  amended  complaint alleges  (1)  violation  of the            Racketeer Influenced and Corrupt Organizations Act (RICO), 18            U.S.C.    1961-1968,  (2) violation of  the federal Truth  in            Lending Act (TILA), 15 U.S.C.     1601 et seq. and Regulation                                                   ______            Z,  12 C.F.R.  pt.  226,  (3) violation  of  the Real  Estate            Settlement Procedures Act (RESPA), 12 U.S.C.    2601-2617 and            Regulation  X,  24 C.F.R.  pt.  3500,  (4) violation  of  the            federal  Alternative  Mortgage  Transaction  Parity  Act,  12            U.S.C.      3801-3806,  (5)  violation  of the  Massachusetts            Consumer  Credit Cost  Disclosure Act,  Mass.  Gen. Laws  ch.            140D, (6) violation of the Massachusetts Consumer  Protection            Act, Mass.  Gen. Laws  ch. 93A, (7)  breach of  contract, (8)            breach  of  the  implied  covenant  of  good  faith and  fair            dealing,  (9) breach of  fiduciary duty, (10)  fraud, deceit,            and  misrepresentation,  (11)  civil   conspiracy,  and  (12)            negligent    misrepresentation,    negligent    hiring    and            supervision, and vicarious liability.                                         -3-                                          3                                        I.                                           __                           BACKGROUND AND PRIOR PROCEEDINGS                           ________________________________                      Because plaintiffs  challenge the  district court's            dismissal of their claims under  Fed. R. Civ. P. 12(b)(6), we            recite  the facts  and reasonable  inferences  raised by  the            facts in their  favor.  See Aybar v.  Crispin-Reyes, 118 F.3d                                    ___ _____     _____________            10, 13 (1st Cir. 1997).                        Dime   is  a   federally-chartered  savings   bank.            Between July 1,  1986, and December  31, 1989, Dime,  through            its wholly  owned subsidiary,  Dime Real  Estate Services  --            Massachusetts, Inc.  ("DRES-MA"),  made  over  four  thousand            (4,000) home mortgage  loans on residential homes  located in            Massachusetts,  totalling over  six  hundred million  dollars            ($600,000,000).  DRES-MA ceased to exist in 1990.2                      Dime  marketed  to Massachusetts  residential  home            purchasers  an  adjustable  rate loan  product  known  as the            Impact  Loan.  In  evaluating applications for  Impact Loans,            Dime  required only  minimal  verification of  the employment            status, assets, and  income of prospective  borrowers, basing            its lending  decisions instead on  the value of  the property            subject  to the  mortgage.    Moreover,  Dime  loan  officers            operated  under  instructions  to push  Impact  Loans  to the            virtual exclusion  of other types  of mortgage  loans.   This                                            ____________________            2.  It is unclear from the  record whether DRES-MA was merged            into Dime or whether it was dissolved.                                         -4-                                          4            effort was part of Dime's national campaign to expand rapidly            its home lending business.                      A  principal feature  of  an  Impact  Loan  was  an            initial "teaser" interest  rate of 7.5 percent  for the first            six  months with  a cap  of 9.5  percent for  the second  six            months.  Thereafter, the rate  would adjust to conform to the            Cost of  Funds Index plus three  percent, with a  cap of 13.9            percent.  This arrangement was designed to result in negative            amortization, a situation in which monthly loan payments fall            short of the  actual monthly interest due  on the loan.   The            unpaid interest, or "deferred interest," is then added to the            principal and begins  to accrue interest itself,  causing the            principal  owed to  increase despite  the  borrower's regular            payments.   The  terms of  the Impact  Loan provided  that no            payments or portions of payments would apply to the principal            until all "deferred interest," or  negative amortization, had            been paid.  Once the principal balance reached 110 percent of            the original  principal amount, the  loan contracts  required            mortgagors  to  make  fully  amortizing  payments;  that  is,            mortgagors were required to  increase their monthly  payments            to cover the additional principal plus interest.                      Plaintiffs  secured residential  Impact Loans  from            DRES-MA in 1986 and 1987.  To induce plaintiffs to enter  the            loan  contracts,  Dime downplayed  the  negative amortization            feature  of the Impact Loans, and discouraged plaintiffs from                                         -5-                                          5            hiring   their  own  attorneys  by  telling  them  that  Dime            attorneys  would "handle  things" and  "protect"  them.   Six            months into the loans, monthly statements  revealed increases            in  the owed  principal, and,  in the  second year,  deferred            interest began  to appear on  the statements.   Although  the            initial loan documents contained  the information from  which            plaintiffs  could have  discovered that  their loan  payments            would  increase,   plaintiffs  contend   that  teasing   this            information  out  of   the  documents  would  have   required            computation  skills,  computer  software,  and  a   level  of            sophistication that  they did  not, and  could not  have been            expected to,  possess.   In addition,  plaintiffs argue  that            Dime  charged  them  excessive  fees  for  closing  the  loan            contracts,  serviced  their  loans  improperly  by  providing            unsatisfactory  responses  to  their  queries about  negative            amortization, and altered the Saloises' loan impermissibly by            requesting that the Saloises sign "corrective" documents that            lifted  a two  percent per  month  cap on  the interest  rate            applicable to the loan.                      At the time of the complaint, plaintiffs Robert and            Diane  Salois continued to  hold their mortgage.   Plaintiffs            David M. Leary and Linda Scurini-Leary had defaulted, and the            mortgage on their home was  foreclosed on in 1991.  Plaintiff            Ninon R.  L. Freeman  paid her  loan in  full in  1993.   The            Saloises were  alerted to  their potential  claims when  they                                         -6-                                          6            consulted an attorney about their financial situation in late            September,   1994,  and  Ms.  Freeman  and  the  Learys  were            similarly  advised  in  mid-1995.   The  Saloises  filed this            action on  September 1, 1995,  in the United  States District            Court for the District of Massachusetts, as a  putative class            action  on  behalf  of all  persons  who  secured residential            mortgage loans  from Dime  in Massachusetts  between July  1,            1986, and  December 31, 1989.   Dime responded on  October 5,            1995, with a motion to dismiss the complaint as untimely.  On            November  10, 1995, Dime further moved for Rule 11 sanctions,            alleging  that  there  was  no legal  or  factual  basis  for            plaintiffs'  claims.  The Saloises filed an amended complaint            on February 9,  1996, which added the Learys  and Ms. Freeman            as plaintiffs.  In a margin order dated November 6, 1996, the            district court denied the Rule 11 motion and, on November 13,            1996,  dismissed  the complaint  on  statutes  of limitations            grounds.  Because the court never acted on plaintiffs' motion            for class certification, no class was certified.  This appeal            and cross-appeal followed.                                         II.                                         ___                                      DISCUSSION                                      __________            A.  Plaintiffs' Claims             ______________________                      On  appeal,  plaintiffs contend  that  the district            court  erred in  dismissing  their  actions  on  statutes  of                                         -7-                                          7            limitations grounds, arguing  that the claims are  subject to            equitable tolling and thus are  timely.  They further contend            that their  claims warrant  relief on the  merits.   We begin            with the statutes of limitations issue because, if plaintiffs            claims in fact are time-barred, that finishes the case.                       Arguing for equitable  tolling, plaintiffs draw  on            federal   and  Massachusetts   law   providing  that   fraud,            fraudulent concealment,  and wrongs  resulting in  inherently            unknowable  injuries   toll  limitations   periods,  and   on            Massachusetts  law providing that  limitations periods may be            tolled by  the existence of  and breach of a  fiduciary duty.            The   heart   of  plaintiffs'   allegations   is  that   Dime            fraudulently  concealed  the  fact  that  their  loans  would            definitely,  rather  than  only possibly,  go  into  negative            __________            amortization and accrue deferred interest.  Plaintiffs assert            that  this  information  became  available  only  after  they            consulted a knowledgeable  attorney who was able  to decipher            the meaning of the facts  and figures contained in their loan            documents.  Further,  plaintiffs contend that issues  of fact            relating  to the propriety  of tolling should  have precluded            the district court from dismissing their claims based on  the            pleadings alone.  We are not persuaded.                      As an initial matter we note that plaintiffs' TILA,            RESPA, and Parity Act claims are subject to one-year statutes                                         -8-                                          8            of limitations.3   Thus,  these claims must  have accrued  no            earlier than  September 1,  1994.  The  claims for  breach of            fiduciary duty; fraud,  deceit, and misrepresentation;  civil            conspiracy; and negligent misrepresentation, negligent hiring            and  supervision, and vicarious  liability are governed  by a            three-year limitations  period.4  These claims must therefore            have accrued no earlier than September 1,  1992.  Plaintiffs'            claims  under RICO and the Massachusetts Consumer Credit Cost            Disclosure  and Consumer Protection Acts are subject to four-            year  limitations periods.5   Thus,  these  claims must  have                                            ____________________            3.  The TILA states that "[a]ny action under this section may            be  brought  . .  .  within one  year  from the  date  of the            occurrence  of the  violation."   15 U.S.C.    1640(e).   The            RESPA  provides that "[a]ny action pursuant to the provisions            of section . . . 2607 . . . of [Title 12] may  be brought . .            . within  1 year . . . from the date of the occurrence of the            violation."  12  U.S.C.   2614.   The Parity Act states  that            "[a]ny violation  of  this  section shall  be  treated  as  a            violation of the Truth in Lending Act."  12 U.S.C.   3806(c).            We  note that  one other court  of appeals has  held that the            RESPA is  not subject  to tolling doctrines.   See  Hardin v.                                                           ___  ______            City  Title &  Escrow Co.,  797  F.2d 1037,  1041 (D.C.  Cir.            _________________________            1986).   We need not  address the correctness of  this ruling            because, for reasons  we shall explain, equitable  tolling is            not warranted on the facts of this case.            4.  Massachusetts law provides  that "actions of  tort . .  .            shall be  commenced only  within three  years next  after the            cause of action accrues."   Mass. Gen. Laws ch. 260,   2A.            5.  Massachusetts  law provides  that  "[a]ctions arising  on            account of violations of any  law intended for the protection            of  consumers, including  but not  limited to  . .  . chapter            ninety-three A .  . . [and] chapter one hundred and forty D .            .  .  whether for  damages,  penalties  or  other relief  and            brought  by any person .  . . shall  be commenced only within            four years  next after the  cause of action accrues."   Mass.            Gen. Laws ch. 260,   5A.                                         -9-                                          9            accrued   no  earlier  than  September  1,  1991.    Finally,            plaintiffs' claim  for breach  of contract  is governed  by a            six-year  limitations period.6   Thus, the contract  cause of            action must have accrued no earlier than September 1, 1989.                       A cause of action generally accrues at the  time of            the  plaintiff's injury,  or,  in  the case  of  a breach  of            contract, at the  time of the breach.   See Cambridge Plating                                                    ___ _________________            Co., Inc.  v. Napco, Inc.,  991 F.2d  21, 25 (1st  Cir. 1993)            _________     ___________            (discussing  Massachusetts  law).     Therefore,  plaintiffs'            claims  arose when Dime  allegedly induced them  to sign loan            contracts by misrepresenting and/or omitting facts about  the            terms of the  mortgage, charged them excessive  closing fees,            and  serviced  their  loans improperly  by  giving inadequate            answers to  telephone inquiries  about negative  amortization            and by  having the  Saloises sign  corrective documents  that            improperly altered their loan.                      The  district court  examined  each of  plaintiffs'            claims and  concluded that  virtually all  federal causes  of            action  accrued when plaintiffs entered their respective loan                                            ____________________                      With regard to  RICO claims, the Supreme  Court has            held that "the federal policies  that lie behind RICO and the            practicalities of RICO  litigation make the selection  of the            4-year statute  of limitations  for Clayton  Act actions,  15            U.S.C.    15b, the  most appropriate  limitations period  for            RICO actions."  Agency Holding Corp.  v. Malley-Duff & Assoc.                            ____________________     ____________________            Inc., 483 U.S. 143, 156 (1987).            ____            6.  Massachusetts law  provides that "[a]ctions of contract .            . . shall . . . be commenced only within six years next after            the cause of action accrues."  Mass. Gen. Laws ch. 260,   2.                                         -10-                                          10            contracts7  and, in any  event, no later  than mid-1988, when            the Saloises signed  the corrective documents.   The district            court  also concluded that, with the exception of plaintiffs'            claims  based on  Mass. Gen.  Laws ch.  167E, see  infra, the                                                          ___  _____            state claims accrued no later  than either the point at which            the corrective documents  were signed or  the point at  which            plaintiffs called  Dime and were provided  inaccurate answers            about deferred interest.  Although  there may be a dispute as            to  when,  exactly, some  of the  causes of  action accrued,8            plaintiffs do not  dispute that their claims  accrued outside            the relevant limitations periods.  Accordingly, the viability            of  plaintiffs'  claims  depends  on  whether  principles  of            equitable tolling apply.                                            ____________________            7.  The  Freemans  and  the Learys  entered  into  their loan            contracts  with Dime  no later  than November  18,  1986, and            April  15, 1987, respectively;  the Saloises executed  a note            and mortgage on June 16, 1987, and  executed corrective notes            on  February  29,  1988,  and  June  1,  1988.     Plaintiffs            telephoned Dime  sometime in the  second year of  their loans            when  deferred  interest  began to  appear  on  their monthly            statements.  This must have occurred  no later than mid-1989.            See infra note 8.            ___ _____            8.  Although the  district court  concluded  that the  events            giving rise to  plaintiffs' claims all must  have taken place            no later than mid-1988, we  conclude that the phone calls may            have taken  place as late  as mid-1989.  Construing  facts in            the light most favorable to plaintiffs, we assume that it was            the Saloises who placed the calls, and that it was the end of                ________                                           ___            the "second year of their loan" when they did so, which means            the calls may not have been  made until June 16, 1989.   Even            using  this later date as the benchmark, however, plaintiffs'            causes of action accrued at  least six years and almost three            months  prior to  the date  plaintiffs  filed their  original            complaint.                                         -11-                                          11                      1.  Federal Claims                      __________________                      Although, under  federal law, equitable  tolling is            applied to statutes of limitations "to prevent unjust results            or  to  maintain  the  integrity   of  a  statute,"  King  v.                                                                 ____            California, 784  F.2d 910, 915  (9th Cir. 1986),  courts have            __________            taken  a narrow view  of equitable exceptions  to limitations            periods, see Earnhardt v. Puerto Rico,  691 F.2d 69, 71  (1st                     ___ _________    ___________            Cir. 1982).  Indeed,  equitable tolling of a federal  statute            of limitations is  "appropriate only  when the  circumstances            that cause a plaintiff to miss  a filing deadline are out  of            his hands."  Heideman v. PFL, Inc.,  904 F.2d 1262, 1266 (8th                         ________    _________            Cir. 1990), cert. denied, 498 U.S. 1026 (1991).                            _____ ______                      The  federal  doctrine  of  fraudulent  concealment            operates   to  toll  the  statute  of  limitations  "where  a            plaintiff has been injured by fraud and 'remains in ignorance            of it  without any fault or want of  diligence or care on his            part.'"   Holmberg v.  Armbrecht, 327  U.S.  392, 397  (1946)                      ________     _________            (quoting  Bailey  v.  Glover, 88  U.S.  (21  Wall.) 342,  348                      ______      ______            (1874)); see  Maggio v.  Gerard  Freezer & Ice Co.,  824 F.2d                     ___  ______    __________________________            123, 127 (1st Cir. 1987).  For plaintiffs to be successful in            their  argument, we must determine that "(1) sufficient facts            were  [not] available  to  put  a  reasonable  [borrower]  in            plaintiff[s'] position on  inquiry notice of the  possibility                                                              ___________            of fraud,  and (2)  plaintiff[s] exercised  due diligence  in            attempting  to  uncover  the  factual  basis  underlying this                                         -12-                                          12            alleged fraudulent conduct."  Maggio, 824 F.2d at 128.  Thus,                                          ______            allegations  of  fraudulent  concealment  do not  modify  the            requirement that  plaintiffs must  have exercised  reasonable            diligence.   See Truck Drivers  & Helpers Union v.  NLRB, 993                         ___ ______________________________     ____            F.2d 990, 998 (1st Cir. 1993) ("Irrespective of the extent of            the effort  to conceal,  the fraudulent concealment  doctrine            will  not save  a charging  party who  fails to  exercise due            diligence,  and is  thus charged  with notice of  a potential            claim.").  In  simpler terms, fraud  may render reasonable  a            plaintiff's  otherwise unreasonable  conduct,  but there  are            limits:  plaintiffs must still exercise reasonable  diligence            in discovering that they have been the victims of fraud.                      In this case, the inquiry is over before it begins.            Regardless whether negative amortization was inevitable  with            Impact  Loans, the documents contained all of the information            necessary to determine the interaction of Dime's formula with            prevailing interest  rates.   It  was attorney  consultation,            rather  than  newly-discovered   information,  that  prompted            plaintiffs'  lawsuit.  Therefore, sufficient facts -- indeed,            all  the  facts --  were  available  to place  plaintiffs  on            ___            inquiry notice  of fraudulent conduct.  Moreover,  even if we            regard   plaintiffs'  consultation   with   an  attorney   as            "discovered"   information  that   revealed  Dime's   alleged            concealment,   it  cannot  be   said  that   plaintiffs  were            reasonable in waiting until 1994 to consult an attorney, when                                         -13-                                          13            it was  clear as early as 1988 that  their loans had begun to            accrue deferred interest.9   As the district  court observed,            "The loan documents notified plaintiffs of the possibility of            negative amortization, when it would  apply, and how it would            work,"  so  that  even "[i]f  [Dime]  had  misrepresented the            nature of  the loans,  the loan  documents plaintiffs  signed            would have put them on notice of the fraud."  Salois  v. Dime                                                          ______     ____            Savings Bank, No. 95-11967-PBS, slip op. at 14 (D. Mass. Nov.            ____________            13, 1996).10                        Plaintiffs argue that  whether they were reasonably            diligent in ascertaining their claims  is a matter of fact to            be determined by  a jury.   Even  if we accept  all facts  as                                            ____________________            9.  Once deferred interest  began to accrue, after  the first            year of the  repayments, the bases of all  of the plaintiffs'            present claims  had come to  their attention.  That  they did            not seek legal advice  in 1988 (or, in any event,  before the            running of the  relevant statutes of limitations) seems to be            more  a  matter   of  happenstance  than  lack   of  relevant            information.   We think  the district court  stated the issue            well: "No facts are alleged as to what prompted plaintiffs to            consult an  attorney, if not their loan documents and monthly            statements.  . .  .   If the  plaintiffs' loan  documents and            statements prompted them to  consult an attorney in  1994 and            1995, unprompted  by any new  disclosure, there is  no reason            they  could  not  have consulted  an  attorney  several years            earlier."   Salois v.  Dime Savings  Bank, No.  95-11967-PBS,                        ______     __________________            slip op. at 15 (D. Mass. Nov. 13, 1996).             10.  In addition, we note that, under Massachusetts law, "one            who signs  a writing  that is  designed to serve  as a  legal            document . .  . is presumed to  know its contents."   Hull v.                                                                  ____            Attleboro Savings Bank, 33 Mass.  App. Ct. 18, 24 (1992); see            ______________________                                    ___            Lerra  v. Monsanto  Co., 521  F. Supp.  1257, 1262  (D. Mass.            _____     _____________            1981); Connecticut Jr. Republic v. Doherty, 20 Mass. App. Ct.                   ________________________    _______            107, 110  (1985).   Thus, as a  matter of  Massachusetts law,            plaintiffs were  on notice of  their claims when  they signed            their loan documents in 1986 and 1987.                                         -14-                                          14            plaintiffs  present  them,  however, nothing  in  the  record            supports the conclusion that plaintiffs exercised  reasonable            diligence as  a  matter of  law.   Cf.  Sleeper   v.  Kidder,                                               ___  _______       _______            Peabody  & Co.,  480  F.  Supp. 1264,  1265  (D. Mass.  1979)            ______________            (noting  that although the  issue of reasonable  diligence is            factually  based, it  may be  determined as  a matter  of law            where  the  underlying  facts  are  admitted  or  established            without dispute),  aff'd mem., 627 F.2d 1088 (1st Cir. 1980).                               __________            Thus, the district  court's dismissal  of plaintiffs'  claims            was proper.11                      2.  State Claims                      ________________                      The   foregoing  analysis   likewise  disposes   of            plaintiffs'  argument for  tolling  on  the  basis  of  state                                                                    _____            fraudulent concealment doctrine.  Massachusetts law  provides            that, "[i]f a person liable to a personal action fraudulently            conceals the cause  of such action from the  knowledge of the            person  entitled  to  bring  it,  the  period  prior  to  the            discovery of  his cause of  action by the person  so entitled                                            ____________________            11.  Plaintiffs  also contend that  there are issues  of fact            regarding  whether Dime  was a  fiduciary  to plaintiffs  and            whether Dime fraudulently concealed information, and that the            existence of  such factual  issues precludes  dismissal.   To            this   we  note  that,   first,  simply  alleging  fraudulent            concealment  or the  existence of  a fiduciary duty  does not            suffice to avoid dismissal.   See General Builders Supply Co.                                          ___ ___________________________            v. River Hill  Coal Venture, 796 F.2d 8, 12  (1st Cir. 1986).               ________________________            Second,   plaintiffs'  claims   may   be  dismissed   without            determining  these   issues  because,  even   if  plaintiffs'            allegations regarding  fraud and  fiduciary duties are  true,            plaintiffs   still   fail   the   ultimate   test,  that   of            reasonableness in discovering and pursuing their claims.                                         -15-                                          15            shall be  excluded in  determining the time  limited for  the            commencement of the action."   Mass. Gen. Laws ch. 260,   12.            Specifically, a statute of limitations may be tolled "if  the            wrongdoer,  either through  actual fraud  or in  breach of  a            fiduciary  duty of  full disclosure,  keeps  from the  person            injured  knowledge of  the facts  giving rise  to a  cause of            action and the means of  acquiring knowledge of such  facts."            Maggio, 824  F.2d at  131 (emphasis  omitted) (quoting  Frank            ______                                                  _____            Cooke, Inc.  v. Hurwitz, 10  Mass. App. Ct. 99,  106 (1980)).            ___________     _______            Here,  an analysis  of whether  Dime  concealed the  means of            acquiring  the  facts  giving  rise  to  their  claims  would            parallel  a reasonable diligence  inquiry, which, as  we have            already concluded, plaintiffs fail.   Yet we need not rely on            that  analysis  because,  again, Dime  did  not  conceal from            plaintiffs  the facts themselves and therefore cannot be said            to  have  kept   plaintiffs  from  acquiring  the   requisite            knowledge.                      But plaintiffs persist, focusing on the possibility            of a fiduciary  relationship between themselves and  Dime and            arguing that  Massachusetts  limitations  periods  should  be            tolled because Dime's breach of an alleged fiduciary duty  to            them  is sufficient to constitute fraud.  Although plaintiffs            do  not develop  this  line  of  analysis,  presumably  their            argument  is  that, even  if  Dime did  not  actively conceal            information, it  nonetheless committed fraud  because it owed                                         -16-                                          16            plaintiffs a special  duty of disclosure.  Under  this theory            as well,  however, "[a]  plaintiff must be  able to  show not            only that  crucial facts were withheld by  defendants owing a            duty of full disclosure, but also that he lacked the means to            uncover  these facts."    Maggio,  824 F.2d  at  131.   If  a                                      ______            plaintiff  has failed to "undertake  even a minimal effort to            pursue  the investigative  opportunities  available to  him[,            then]  not even  the  combination  of  fiduciary  duties  and            section  12  are sufficient  to  excuse a  delay  in bringing            suit."  Id.  In this case, we need not determine whether Dime                    ___            was  a  fiduciary  to  plaintiffs because,  even  if  such  a            relationship  existed, the fact remains that no revelation of            information occurred  subsequent to plaintiffs'  discovery of            negative  amortization in 1988.   Because plaintiffs  had the            "means to uncover" the relevant  facts as early as 1988, and,            indeed, possessed the  facts themselves in 1988,  their state            law  claim based  on the  existence  of a  fiduciary duty  in            combination with fraudulent concealment fails.                      Finally,  the  district   court  dismissed  one  of            plaintiffs'  claims  based  on  the  Massachusetts   Consumer            Protection Act, Mass.  Gen. Laws ch. 93A, on  the basis that,            although Dime may  have been in violation of  Mass. Gen. Laws            ch.  167E,      2(B)(9)  and  (10)  --  which   prohibit  the            alteration of a payment  amount more than once a year and the            alteration of the interest rate more than every six months --                                         -17-                                          17            plaintiffs  had  not   alleged  that  Dime  was   subject  to            regulation by the Massachusetts Commissioner of Banks.12  The            court  was correct.   Dime,  a  federally-chartered bank,  is            regulated  by the federal  Office of Thrift  Supervision, and            DRES-MA,  a non-bank  subsidiary, was incorporated  under New            York law.   The  Massachusetts statutes  on which  plaintiffs            rely  apply only to Massachusetts-chartered banks.  See Mass.                                                                ___            Gen. Laws ch. 167E,   1.13            B.  Dime's Motion for Rule 11 Sanctions            _______________________________________                      Dime  argues  that  the  district  court  erred  in            denying  its   motion  for   sanctions  against   plaintiffs'            attorneys, and  that the  court  should have,  at a  minimum,                                            ____________________            12.  The  district court noted that plaintiffs' ch. 93A claim            based on Dime's alleged violation of Mass. Gen. Laws ch. 167E               2(B)(9) was  not time-barred if  the owed  monthly payment            amount  had changed  more than  once during  any of  the four            years  prior  to  the date  plaintiffs  brought  this action.            Plaintiffs'  complaint did  not foreclose  this  issue.   The            court observed as well that the claim based on Dime's alleged            violation  of Mass.  Gen. Laws  ch. 167E    2(B)(10)  was not            time-barred because the  interest rate changed five  times in            1995.            13.  Plaintiffs argue  in addition  that DRES-MA,  as a  non-            banking corporation, was prohibited under Mass. Gen. Laws ch.            167,    37,  from engaging  in  banking activity,  regardless            whether DRES-MA was a foreign or  domestic corporation.  This            argument  fails because DRES-MA was a real-estate subsidiary,                                                  ___________            not a  banking  subsidiary.    As  such,  although  it  would            presently be subject  to regulation under Mass. Gen. Laws ch.            255,     2, that  statute  was  not  in  force  at  the  time            plaintiffs' claims arose.                                         -18-                                          18            conducted  a hearing  to  determine  whether plaintiffs  made            reasonable inquiries prior to bringing their claims.14                        Rule 11 calls for the imposition of sanctions on  a            party  "for  making  arguments  or  filing  claims  that  are            frivolous, legally unreasonable,  without factual foundation,            or asserted  for an  'improper purpose.'"   S. Bravo  Sys. v.                                                        ______________            Containment Tech.  Corp., 96  F.3d 1372,  1374-75 (Fed.  Cir.            ________________________            1996) (citing  Conn v. Borjorquez,  967 F.2d 1418,  1420 (9th                           ____    __________            Cir. 1992)).   In reviewing  the district  court's denial  of            defendant's Rule 11  motion, we apply an abuse  of discretion            standard.  See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,                       ___ _____________    ______________            405 (1990).   As we have noted before,  our review of denials            of Rule  11 motions "calls  for somewhat more  restraint than            review of  positive actions  imposing sanctions  and shifting            fees."  Anderson v. Boston Sch. Comm., 105 F.3d 762, 769 (1st                    ________    _________________            Cir.  1997).   The trial  judge should  be accorded  not only            "additional deference in  the entire area of  sanctions," but            also  "extraordinary deference in denying sanctions."  Id. at                                                                   ___            768.                      It  would  have  been preferable  for  the district            court to have more extensively  set forth its rationale.  See                                                                      ___                                            ____________________            14.  The  district court  disposed of  Dime's  motion in  two            sentences:  "While  I   agree  that  the  action   should  be            dismissed, plaintiffs amended the complaint  to eliminate the            frivolous  claims.    Moreover, while  the  claims  are time-            barred, the  breach of contract  claims and the  [Mass. Gen.]            Laws ch. 93A claims were colorable at least in part."                                         -19-                                          19            Figueroa-Ruiz  v. Alegria, 905 F.2d 545, 549 (1st Cir. 1990).            _____________     _______            Nonetheless, "although the rationale for a denial of a motion            for  fees  or  sanctions  under  Rule  11  . .  .  should  be            unambiguously communicated, the lack of explicit findings  is            not  fatal where  the record  itself,  evidence or  colloquy,            clearly indicates one or more sufficient supporting reasons."            Anderson, 105 F.3d at 769.              ________                      Here, the  record contains  adequate rationale  for            the denial of  the motion.  The court  noted that plaintiffs'            breach of contract and Massachusetts Consumer  Protection Act            claims were  time-barred but nonetheless  "colorable at least            in part."  Although we reiterate that district courts  should            provide specific findings  in support of Rule  11 rulings, we            conclude that, in light of the record, the court did not here            abuse  its discretion by holding that plaintiffs' claims were            not without foundation in law or in fact.                      Affirmed.                      ________                                         -20-                                          20
