

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1510

       GENERAL ELECTRIC MORTGAGE INSURANCE CORPORATION,

                          Appellant,

                              v.

                       PETER M. BELLI,

                          Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                         

                            Before

               Selya and Boudin, Circuit Judges,                                                           

              and Dowd,* Senior District Judge.                                                          

                                         

Richard W.  Gannett with whom  Gannett &amp; Associates  was on  brief                                                               
for appellant.
Harland L. Smith for appellee.                            

                                         

                      December 10, 1997
                                         

                                            

*Of the Northern District of Ohio, sitting by designation.

     Per  Curiam.   The General  Electric Mortgage  Insurance                            

Corporation ("GEMIC") appeals from the district court's order

affirming the refusal of the bankruptcy court to declare non-

dischargeable  because of fraud a debt owed to it by Peter M.

Belli.   11 U.S.C.     523(a)(2)(A)-(B).   Unfortunately  for

GEMIC,  the facts  now relied  upon  to show  fraud were  not

proved  at trial in  the bankruptcy  court.   Accordingly, we

affirm.

     GEMIC  insured  loans   for  the  First  Mark   Mortgage

Corporation  of Emerald Isle,  North Carolina ("First Mark"),

which in  1990 lent  Belli $126,800,  secured by  a mortgage.

Belli defaulted.  GEMIC made good the deficiency, First  Mark

assigned  its rights to GEMIC, and GEMIC  in turn won a state

court judgment against Belli on October 20, 1993, for the sum

of $58,719.08, the principal amount still owed to GEMIC after

the  foreclosure sale of  the mortgaged property.   Belli did

not  pay this  sum  but instead  filed  for bankruptcy  under

Chapter 7 on February 18, 1994.

     On  May 27,  1994, GEMIC  filed  a complaint  asking the

bankruptcy court to declare the debt non-dischargeable on the

ground that Belli had lied on his loan application concerning

the  terms   of  his  employment   and  the  amount   of  his

liabilities;  the complaint  did not  assert  that Belli  had

overstated  his assets.  After  some discovery, a bench trial

was held  on July  19, 1995, which  consisted largely  of the

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direct examination  and cross-examination  of Belli,  who was

the only witness to testify.   The bankruptcy court dismissed

GEMIC's  complaint and later denied GEMIC's motion for relief

from final  judgment.   GEMIC appealed  these rulings  to the

district court, which affirmed.

     On  appeal, GEMIC tells us that Belli's loan application

overstated   his  gross   monthly  income,   understated  his

outstanding  debts,  and--most  important--misrepresented his

ownership  interest in  certain assets.    Belli had  claimed

ownership  of two  parcels of  land  valued at  $435,000; but

GEMIC now tells us that  Belli had previously lost one parcel

due to foreclosure  and had conveyed most of  his interest in

the  other, so  that his  equity  in the  two properties  was

actually approximately $250.

     Had  GEMIC proved  at trial  the misrepresentations  now

described,  it would have  gone far  toward proving  that the

judgment earlier  won  by GEMIC  was non-dischargeable  under

section 523.   We were surprised  therefore to discover  that

the  trial  record does  not  contain  proof  of the  alleged

misrepresentations.   Instead, it shows that the only witness

called  was Belli  himself  who,  although vigorously  cross-

examined by  GEMIC counsel, declined  to admit that  his loan

application was materially false.

     To explain the absence of  proof, GEMIC says that one of

its own  witnesses was unexpectedly  unavailable; but  absent

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extreme  circumstances, refusal  to defer  a scheduled  trial

where a party fails  to produce its own witness is within the

sound discretion of  the trial court.   GEMIC also  complains

that  the district  court refused  to enforce  a subpoena  to

require  Belli's  former  employer to  appear  at  trial with

records as to Belli's former  salary; but GEMIC had sought to

serve the subpoena only the  day before trial and the witness

was  out  of  state.    GEMIC  had  failed  to  preserve  the

employer's testimony by deposition.

     GEMIC next says that Belli did not adequately respond to

discovery;  specifically,  he  failed  to  produce  prior tax

returns, saying they had been  lost.  But GEMIC itself waited

until the last day to submit its discovery requests and, more

important, did  not complain to  the trial  court until  five

days before trial  even though it  had had Belli's  responses

for a month.  Nor did GEMIC move in timely fashion  to compel

Belli to sign an authorization so that it could itself secure

the tax documents from the Internal Revenue Service.

     As  for   the  misrepresentations   concerning  property

ownership, it appears that GEMIC did not discover these facts

until a title search was  performed after trial.  The results

were  the basis  for  GEMIC's motion  for  relief from  final

judgment.   But  GEMIC  has  never explained  why,  with  due

diligence,  it could not have discovered the same information

prior to trial.  In  these circumstances, the trial court was

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certainly not obliged  to let GEMIC reopen matters  to repair

the record.

     This case involved a relatively small sum for GEMIC and,

even  if   it  had   prevailed  in   making  the   debt  non-

dischargeable, it  might never have  seen a  penny.   Perhaps

this  justified it  in  stinting  on  trial  preparation  and

gambling that Belli  might be forced on  cross-examination to

admit the  necessary facts.   But having gambled and  lost in

the trial court, GEMIC cannot expect rescue on appeal.

     Affirmed.                         

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