          United States Court of Appeals
                      For the First Circuit


No. 15-1270

                         SHAREL L. GIROUX,

                       Plaintiff, Appellant,

                                v.

 FEDERAL NATIONAL MORTGAGE ASSOCIATION, its Successor & Assigns,
       and MERSCORP HOLDINGS INC., its Successor & Assigns,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]


                              Before

                        Howard, Chief Judge,
              Torruella and Thompson, Circuit Judges.


     Michael J. DiCola, on brief for appellant.
     Phoebe N. Coddington and Winston & Strawn, LLP, on brief for
appellees.



                         January 13, 2016
           TORRUELLA, Circuit Judge.      Plaintiff-Appellant Sharel

Giroux filed suit against Defendants-Appellees Federal National

Mortgage Association ("Fannie Mae") and MERSCORP Holdings, Inc.,

seeking an order enjoining the foreclosure sale of her home.     The

district court dismissed her claim, finding that it was barred on

res judicata grounds in light of a similar case that she had

brought in Belknap Superior Court in New Hampshire and which had

been dismissed.       Giroux moved to vacate the district court's

judgment under Rule 60 of the Federal Rules of Civil Procedure, a

request which the district court summarily denied.     Giroux solely

appeals the denial of her Rule 60 motion, contending that the

district court was required to provide reasoning for its order

under Ungar v. Palestine Liberation Org., 599 F.3d 79 (1st Cir.

2010).   We affirm.

                                 I.

           In January 2007, Giroux executed a promissory note with

American Home Mortgage Corporation ("AHMC"), secured by a mortgage

on her home held by Mortgage Electronic Registrations Systems,

Inc. ("MERS") as nominee for AHMC.     In November 2008, the mortgage

and note were assigned to Fannie Mae.        In August 2011, Giroux

filed suit in Belknap Superior Court, contending that Fannie Mae,

Bank of America Corporation,1 MERS, and BAC Home Loans Servicing,


1   During the superior court proceeding, Bank of America, N.A.

                                 -2-
LP, lacked sufficient rights to enforce, transfer, or assign the

note.   Her claim was dismissed for lack of standing.               Giroux

subsequently appealed to the New Hampshire Supreme Court, which

affirmed the decision of the superior court.

            A foreclosure sale was scheduled for January 7, 2014.

On January 6, Giroux filed a new complaint against Fannie Mae and

MERSCORP Holdings2 in Merrimack Superior Court in New Hampshire

seeking to enjoin the sale.       The action was removed to the United

States District Court for the District of New Hampshire on the

basis of diversity jurisdiction.       In June 2014, the district court

dismissed   Giroux's    action,    explaining   that,   because   her   most

recent claims could have been brought before the Belknap Superior

Court, her action was barred on res judicata grounds.          In October,

Giroux filed a motion to vacate the judgment under Rule 60(b) of

the Federal Rules of Civil Procedure, which the district court

subsequently   denied    in   a   one-word   order.     She   appeals   that

decision here.




began acting as successor by merger to Bank of America Corporation.
We refer to both entities as Bank of America.
2   MERSCORP Holdings is the parent company of MERS.       MERS,
https://www.mersinc.org/about-us/about-us (last visited Dec. 30,
2015).


                                    -3-
                                      II.

1.    Standard of Review

               "[R]elief under Rule 60(b) is extraordinary in nature

and . . . motions invoking that rule should be granted sparingly."

Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002).                 A

party seeking redress under Rule 60(b)

               must persuade the trial court, at a bare
               minimum, that [her] motion is timely; that
               exceptional circumstances exist, favoring
               extraordinary relief; that if the judgment is
               set aside, [s]he had the right stuff to mount
               a potentially meritorious claim or defense;
               and that no unfair prejudice will accrue to
               the opposing parties should the motion be
               granted.

Id.    "[O]ur review is limited to the denial of the contested motion

itself; we may not consider the merits of the underlying judgment."

Ojeda-Toro v. Rivera-Méndez, 853 F.2d 25, 28 (1st Cir. 1988).

Given   the     district   court's   familiarity     with   the   record   and

proceedings below, we review the district court's decision to grant

or deny relief under Rule 60(b) for an abuse of discretion.                Id.

"Abuse occurs when a material factor deserving significant weight

is ignored, when an improper factor is relied upon, or when all

proper and no improper factors are assessed, but the court makes

a    serious    mistake    in   weighing    them."   Bouret-Echevarría      v.

Caribbean Aviation Maint. Corp., 784 F.3d 37, 43 (1st Cir. 2015)




                                      -4-
(quoting Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter &

Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).

             Rule 60 is separated into six subsections, each of which

"describes a particular basis for relief from judgment."               Ungar,

599   F.3d   at   83.   Giroux   seeks   relief   under   three   of    these

subsections, which are described in more detail herein.

2.    Analysis

             Under Rule 60 of the Federal Rules of Civil Procedure,

a "court may relieve a party or its legal representative from a

final judgment, order, or proceeding."            Fed. R. Civ. P. 60(b).

Giroux contends that the district court erred in failing to provide

an explanation for denying her Rule 60 motion.         She relies on this

Court's decision in Ungar in support of her argument that the

district court was required to provide reasoning for its decision.

But Ungar is inapposite:         Ungar concerned "whether there is a

categorical rule that a party whose strategic choices lead to the

entry of a default judgment is precluded as a matter of law from

later obtaining relief" under Rule 60 and had nothing to do with

the absence of a written decision.        599 F.3d at 81.     Indeed, the

Ungar court stated that "there is no ironclad rule requiring an

in-depth, multi-factored analysis in every case."             Id. at 86.

Moreover, this Court does not require that a district court provide

an explanation when denying Rule 60 motions and has affirmed


                                   -5-
summary denials of these motions.          See, e.g., Ofori v. Ruby

Tuesday, Inc., 205 F. App'x 851, 852 (1st Cir. 2006) (affirming

summary denial of Rule 60(b) motion where "[e]ach of the arguments

presented . . . was previously presented to and fully considered

by the district court"); Stokes v. Merson, 38 F. App'x 622, 622

(1st Cir. 2002) ("The summary denial of relief under Rule 60(b)

was not an abuse of discretion."); Lepore v. Vidockler, 792 F.2d

272, 275 (1st Cir. 1986) (affirming "summary disposition" of Rule

60(b) motion).     Further, a review of the record reveals that the

district court did not abuse its discretion in determining that

Giroux's claim lacked merit, even if it declined to offer a

rationale.     See Lepore, 792 F.2d at 275 ("There was ample support

for the result reached by the district court, and although an

opinion explaining the court's rationale is always welcome, the

absence of an opinion gives us no pause in this case.").

     a.      Rule 60(b)(2)

             Rule 60(b)(2) provides relief for litigants who present

"newly discovered evidence that, with reasonable diligence, could

not have been discovered in time to move for a new trial under

Rule 59(b)."    In her Rule 60 motion, Giroux explains that Paragraph

22 of her mortgage requires that a lender provide notice containing

certain   information    to   the   borrower   before   proceeding   with

foreclosure, and that, after the district court issued its order


                                    -6-
dismissing    the    case,   Giroux   received    a   letter   from   Bank   of

America's attorney stating that Bank of America was unable to

locate the Paragraph 22 notice.             But Giroux was aware that the

Paragraph 22 notice was missing when this case was pending before

the Merrimack Superior Court.          Indeed, in her Rule 60 motion,

Giroux asserted that she had received a letter from Fannie Mae's

foreclosure counsel in December 2013 stating that "[w]e do not

have a copy of the notice at this time" and that she submitted an

affidavit to the Merrimack Superior Court averring that she did

not recall receiving the notice.            Further evidence corroborating

these allegations does not warrant relief under Rule 60(b)(2).

See Morón-Barradas v. Dep't of Educ. of the Commonwealth of P.R.,

488 F.3d 472, 482 (1st Cir. 2007) (finding that new evidence "which

at best is merely cumulative" of previously submitted materials

does not satisfy Rule 60(b)(2)); U.S. Steel v. M. DeMatteo Constr.

Co., 315 F.3d 43, 52 (1st Cir. 2002) ("A party is entitled to

relief, under Rule 60(b)(2), . . . where . . . the evidence is not

merely cumulative or impeaching.").

     b.    Rule 60(b)(3)

           A party may seek relief under Rule 60(b)(3) where a

litigant     can    demonstrate   "fraud     (whether    previously    called

intrinsic or extrinsic), misrepresentation, or misconduct by an

opposing party."      Fed. R. Civ. P. 60(b)(3).         Giroux alleges that


                                      -7-
the mere fact that the defendants intended to proceed with the

foreclosure absent the requisite Paragraph 22 notice evinces that

"the foreclosure is fraudulent and illegal."                To satisfy Rule

60(b)(3), Giroux "must demonstrate misconduct -- such as fraud or

misrepresentation -- by clear and convincing evidence" and "'show

that   the   misconduct   foreclosed    full   and   fair    preparation   or

presentation of [her] case.'"          Karak, 288 F.3d at 21 (quoting

Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).

Not only do Giroux's conclusory allegations fall far short of clear

and convincing evidence, she does not assert that this allegedly

fraudulent act affected or was in any way related to litigation of

her action.    See Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d

129, 134 (1st Cir. 2005) (noting that Rule 60(b)(3) is concerned

with instances of "litigation-related fraud").

       c.    Rule 60(b)(6)

             Rule   60(b)(6)   is   a     "catch-all     provision"    that

"authorizes the district court to grant relief from judgment for

'any other reason that justifies relief.'"           Ungar, 599 F.3d at 83

(quoting Fed. R. Civ. P. 60(b)(6)).        "The high threshold required

by Rule 60(b)(6) reflects the need to balance finality of judgments

with the need to examine possible flaws in the judgments."          Bouret-

Echevarría, 784 F.3d at 42.            In her Rule 60 motion, Giroux

analogizes to this Court's refusal, in Ungar, to impose a bar to


                                    -8-
Rule 60(b)(6) relief for certain default judgments.           She contends

that Ungar required the district court to analyze her action on a

discretionary basis rather than categorically barring it on res

judicata grounds.       But, by its terms, the reasoning in Ungar was

limited to instances of "willful defaults" in the context of Rule

60, 599 F.3d at 84, and does not extend to all instances where

litigants' claims are subject to procedural bars. 3                  At most,

Giroux's    arguments    under   Rule   60(b)(6)   recite   issues    already

raised in her complaint and opposition to the motion to dismiss.

Such arguments are foreclosed under Rule 60:           Giroux "may not use

Rule 60(b) as a substitute for a timely appeal" and therefore "may

not raise the question of whether the dismissal of [the Belknap

action] precluded the relitigation of the same issues in a later

case."     Ojeda-Toro, 853 F.2d at 28-29.          Ultimately, Giroux does

not show any "exceptional circumstances justify[ing] extraordinary

relief" under Rule 60(b)(6).       Bouret-Echevarría, 784 F.3d at 43.




3  "[T]he effect of the New Hampshire court's final judgment on
[Giroux's] federal action is determined by applying New
Hampshire's res judicata law." Torromeo v. Town of Fremont, N.H.,
438 F.3d 113, 116 (1st Cir. 2006). Insofar as Giroux's contention
could be interpreted as a suggestion that New Hampshire res
judicata law must be applied on an individualized "case-by-case
basis," Giroux has "failed to explain why [her] case is
exceptional."    Id. at 117 n.4 (internal quotation marks and
citation omitted).


                                    -9-
                    III.

The judgment of the district court is affirmed.

Affirmed.




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