             United States Court of Appeals
                        For the First Circuit

No. 11-2289

                          BARCLAYS BANK PLC,

                         Plaintiff, Appellee,

                                  v.

                THOMAS A. POYNTER, individually and as
               Trustee of the Leningrad Cowboys Trust,

                        Defendant, Appellant,

       SIMPLY INTERACTIVE, INC.; THE TRANSITIONS GROUP, INC.;
   TRANSITIONS CAPITAL, INC.; TRANSITIONS INTERNATIONAL, INC.;
      TRANSITIONS CAPITAL INVESTORS, LLC; TRANSITIONS CAPITAL
    MANAGEMENT LLC; WAINWRIGHT BANK AND TRUST COMPANY; BANK OF
 AMERICA, N. A.; FIDELITY BROKERAGE SERVICES, LLC; CITIBANK, NA;
               BOSTON PRIVATE BANK AND TRUST COMPANY,

                             Defendants.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Rya W. Zobel, U.S. District Judge]


                                Before

           Boudin,* Hawkins,** and Thompson, Circuit Judges.


     Edmund Polubinski, Jr., with whom Lyne, Woodworth & Evarts
LLP was on brief, for appellant.


     *
       Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists issue
this opinion pursuant to 28 U.S.C. § 46(d).
     **
          Of the Ninth Circuit, sitting by designation.
     Michael D. Vhay, with whom Lauren Ann H. Pond and DLA PIPER
LLP were on brief, for appellee.


                         March 13, 2013




                               -2-
              THOMPSON, Circuit Judge. With the help of a loan from

Barclays Bank, PLC ("Barclays"), Dr. Thomas Poynter bought a

custom-made yacht.           When he stopped making payments on the loan,

Barclays repossessed the yacht and sold it. Barclays got less than

what Poynter owed and so it sued him for the deficiency.                         Poynter

moved for summary judgment arguing that Barclays was not entitled

to collect because it had not provided him with proper notice of

the   sale.         The   district   court       was    not    convinced;   it    denied

Poynter's motion and sua sponte granted summary judgment in favor

of Barclays.         Poynter now appeals.              Discerning no merit to his

argument, we affirm.

                                     BACKGROUND

              We    state    the   facts   in     the    light    most    favorable    to

Poynter,      the    party    contesting     summary          judgment,   drawing     all

reasonable inferences in his favor. Pagano v. Frank, 983 F.2d 343,

347 (1st Cir. 1993).

              In November 2005, Barclays loaned Poynter 1.4 million

Euros toward the purchase of a 2005 Oyster 62 Yacht called the Blue

Beach. Poynter granted Barclays a first preferred ship mortgage on

the vessel (the "mortgage"), which provided that Poynter would pay

only interest for the first twenty-four months of the loan and

installments of principal plus interest after that. Poynter signed

the mortgage in Massachusetts, his place of residence and the

location of the yacht.


                                           -3-
            A few years later, in 2008, Poynter sought to renegotiate

the loan terms to allow him to continue paying only interest.

Barclays agreed that Poynter could make interest-only payments for

September through November of that year but said that was it.    But

when his first principal/interest payment came due in December,

Poynter failed to pay.    He was issued a formal notice of default

sometime around March of 2009.

            Rather than repossess the yacht, Barclays decided to work

with Poynter to sell it and, hoping to fetch a good price, they

moved the Blue Beach from Boston, Massachusetts to Newport, Rhode

Island.     But, after several months without a successful sale,

Barclays repossessed the yacht.    Barclays moved it to Florida and

listed it for sale with National Liquidators, a boat liquidation

company.

            On February 5, 2010, Barclays sent Poynter a "Notice of

Our Plan to Sell Property." Citing provisions of Florida's Uniform

Commercial Code ("UCC")1 that relate to a secured party's rights

after a debtor's default, the notice stated: "Further to the

repossession of your 2005 Oyster 62, Hull ID #OYM0160KL505 in

November this year, we herby [sic] provide notice of our intention

to sell the vessel pursuant to Florida Statues [sic]: F.S. 679.609;

679.610; 679.612, and 679.613.     The vessel . . . will be sold by

way of private sale sometime after the date of this letter."     The


     1
         See Fla. Stat. Ann. § 671.101 et seq.

                                  -4-
notice did not include a date, time, or place of sale.                   The notice,

which indicated what Poynter still owed in principal and interest,

went       on    to   state    that    any   remaining   balance   was    Poynter's

responsibility.          It also said that Poynter had the right to settle

up his debts and if he did, the Blue Beach would be released.

                 Poynter responded the same day by email to Barclays's

Marine Risk and Recoveries Co-ordinator, stating: "thank you for

your note."           Just about two months later, on March 31, 2010,

Barclays sold the yacht for 986,019 Euros.                 On April 22, Barclays

informed Poynter of the sale and that the residual balance Poynter

owed       was   683,297      Euros.     Poynter   ignored   Barclays's     balance

request.

                 And so, a short time later, Barclays sued Poynter in

Massachusetts          federal    district     court.2     Barclays   filed    suit

pursuant to the Commercial Instruments and Maritime Liens Act (the

"Ship Mortgage Act"), 46 U.S.C. § 31301 et seq., which provides a

means for enforcing preferred mortgages in admiralty.                        Citing

Poynter's default, Barclays sought to recover the deficiency.

Poynter, after answering the complaint, moved for summary judgment.

He claimed that Barclays was barred from recovering the deficiency

because, in violation of the mortgage's terms, it did not provide

Poynter with proper notice of the sale.                  Barclays, focusing on a


       2
       Barclays also sued several reach and apply defendants, a
practice allowed under Massachusetts law, Mass. Gen. Laws ch. 214,
§ 3(6), who are not parties to this appeal.

                                             -5-
different mortgage provision than Poynter (more on who was relying

on what to come), asserted that it did provide proper notice.    The

district court sided with Barclays.      The court denied Poynter's

motion and sua sponte granted Barclays summary judgment on the

issue of liability.     Poynter now appeals the grant of summary

judgment.

                         STANDARD OF REVIEW

            We review orders for summary judgment de novo, assessing

the record "in the light most favorable to the nonmovant and

resolving all reasonable inferences in that party's favor."

Landrau-Romero v. Banco Popular De P.R., 212 F.3d 607, 611 (1st

Cir. 2000); Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999).      A district court may grant summary

judgment where "there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law."     Fed.

R. Civ. P. 56(a).

                              ANALYSIS

            As we alluded to, Poynter and Barclays have different

ideas about what kind of notice of sale Barclays was required to

give under the mortgage.   To remind the reader of the more salient

facts: Barclays sold the yacht pursuant to the Florida UCC; the

February 5th notice of intent to sell was the only advance notice

Poynter received of the sale; this notice did not specify where and




                                 -6-
when the sale would be; the yacht was sold about two months after

the notice issued.   We proceed to the arguments.

           To support his stance, Poynter relies on Section 4.05 of

the mortgage, which provides in pertinent part that in the event of

default Barclays may repossess the yacht and then sell it "at any

place and at such time as Mortgagee may specify and in such manner

as Mortgagee may deem advisable . . . after first giving Owner

notice thereof ten (10) days in advance of the time and place of

sale."3   Poynter reads this language to mean that ten days notice

as to the time and date of a sale is required in all sales deemed

advisable by Barclays including sales conducted under a UCC.4   Thus

Poynter claims that the February 5th notice of intent to sell,

which lacked a time and place, was insufficient.    The second half



     3
       In its entirety, Section 4.05 indicates that Barclays may in
the event of default: "Take and enter into possession of the Vessel
subject to this Mortgage, at any time, wherever the same may be,
without legal process, and if it seems desirable to Mortgagee and
without being responsible for loss or damage, sell the Vessel, at
any place and at such time as Mortgagee may specify and in such
manner as Mortgagee may deem advisable, free from any claim by
Owner in admiralty, at law or by statute, after first giving Owner
notice thereof ten (10) days in advance of the time and place of
sale."
     4
       Poynter does not dispute (though he took a different
position below) that Barclays was allowed to sell the yacht using
the self-help repossession and sale remedies of Florida's UCC. Nor
would such an argument be sound. Following a circuit split, the
Ship Mortgage Act was amended in 1996 to provide that federal
courts were not the exclusive means for enforcing a preferred ship
mortgage and instead, the mortgagee could use state law self-help
remedies (such as UCC remedies) to enforce the mortgage. See 46
U.S.C. § 31325(b)(3).

                                -7-
of Poynter's argument is that because the notice was substandard,

Barclays should not be allowed to collect the deficiency.               For

support Poynter relies on what he calls "the analogous area of real

estate mortgages," claiming that Massachusetts law prohibits a real

estate   mortgagee   that   does   not    comply   with   statutory   notice

requirements from collecting a deficiency.           Poynter thinks this

rule should apply to Barclays.

           Barclays counters that it was not in fact required to

comply with Section 4.05's notice proviso.5          Barclays claims that

it sold the yacht under Section 4.06 of the mortgage, which

provides that Barclays may exercise any "rights, privileges and

remedies granted by applicable law" - the applicable law here being

the Florida UCC.6     Barclays argues that Sections 4.05's notice



     5
       Poynter professes that Barclays should be estopped from
taking this position.      He argues that paragraph 28 of the
complaint, which stated that Barclays repossessed the yacht "having
given Poynter ten (10) days notice as required under the Preferred
Mortgage," constituted an admission on Barclays's part that the
requirements of Section 4.05 applied. We can make quick work of
this argument and so dispose of it now. Barclays did not reference
Section 4.05 anywhere in the complaint. Further nothing in the
complaint contradicts Barclays's assertion to this court that
paragraph 28 referred to notice as required under the Florida UCC,
which states that notification of disposition sent ten days or more
before the earliest time of disposition is reasonable. See Fla.
Stat. Ann. § 679.612(2).
     6
       As a whole, 4.06 indicates that in the case of default
Barclays may: "Exercise all rights, privileges and remedies in
foreclosure or otherwise given the Mortgagee by this Mortgage, or
by any other instrument evidencing the indebtedness or the
Obligations or securing performance thereof, as well as such other
rights, privileges and remedies granted by applicable law."

                                    -8-
requirements, according to the mortgage's plain language, do not

apply to every sale as Poynter says, including 4.06 sales.

Barclays also throws about a few alternative arguments should we

disagree about 4.05's applicability, such as: Poynter's actual

notice of the sale waives any procedural defaults and there is no

basis for extending Massachusetts statutory real estate law to this

case.

            In the end, we are tasked with answering one central

question: does Section 4.05 impose an umbrella notice requirement

on all post-default sale procedures as Poynter argues, or does

Section 4.06 provide a stand-alone remedy free of Section 4.05's

procedural dictates as Barclays contends?        We think, based on the

clear language of the mortgage, that Barclays has it right.           We

explain,    starting   with   some    general   contract   interpretation

principles.

            To start with, we forgo embarking on a choice of law

analysis.   Instead we simply elect to interpret the mortgage under

Massachusetts law because both parties agree that it applies and

because there is at least a reasonable relationship between this

dispute and Massachusetts. See Merchants Inc. Co. of N.H., Inc. v.

U.S. Fid. & Guar. Co., 143 F.3d 5, 8 (1st Cir. 1998) (taking the

same approach in a diversity case).

            When interpreting a contract, courts must assess whether

the contract at issue (here the mortgage) is ambiguous, Bank v.


                                     -9-
Thermo Elemental Inc., 888 N.E.2d 897, 907 (Mass. 2008), a question

of law in Massachusetts, Lass v. Bank of Am., N.A., 695 F.3d 129,

134 (1st Cir. 2012).     To answer the ambiguity question, we examine

"the language of the contract by itself, independent of extrinsic

evidence concerning the drafting history or intention of the

parties."    Bank, 888 N.E.2d at 907.       Language is only ambiguous "if

it   is   susceptible    of   more   than   one    meaning   and    reasonably

intelligent persons would differ as to which meaning is the proper

one."     Lass, 695 F.3d at 134 (internal quotation marks omitted).

Ambiguity,    however,   is   not    created    just   because     the   parties

disagree about the contract's meaning.            Farmers Ins. Exch. v. RNK,

Inc., 632 F.3d 777, 783 (1st Cir. 2011).

             Contracts   found free     from ambiguity       are   interpreted

according to their plain terms; we construe all words according to

"their usual and ordinary sense." Gen. Convention on New Jerusalem

in the U.S., Inc. v. MacKenzie, 874 N.E.2d 1084, 1087 (Mass. 2007);

Farmers Ins. Exch., 632 F.3d at 784.           We take the words within the

context of the contract as a whole, rather than in isolation.              Gen.

Convention on New Jerusalem in the U.S., Inc., 874 N.E.2d at 1087.

Summary judgment is appropriate when the contract's plain terms

unambiguously favor either side.         Farmers Ins. Exch., 632 F.3d at

784 (citing Bank v. Int'l Bus. Machs. Corp., 145 F.3d 420, 424 (1st

Cir. 1998)).




                                     -10-
            Here there is no ambiguity in the mortgage's language; it

is only susceptible to one meaning.            And, taking this language at

face value, the mortgage's plain terms favor Barclays's reading of

things. We start with Section 4.00 of the mortgage, titled "RIGHTS

AND REMEDIES ON DEFAULT," which spells out how Barclays may proceed

upon a debtor's default.          It states: "If any such Event or Default

occurs and is continuing, Mortgagee may, at its option, do any one

or more of the following:" (emphasis added).                   Seven different

rights and remedies then follow in subsections 4.01 through 4.07,

including the all important sections 4.05 and 4.06.                 Each of these

subsections contains an independent, complete thought and each ends

with a period for punctuation.            The language "any one or more of

the following" is not ambiguous.             To the contrary its meaning is

quite plain.     Barclays had seven distinct options and could elect

to employ a single one of those options or a combination thereof.

Poynter's argument asks us to give no effect to the critical phrase

"any one or more of the following" and we will not do this.                    See

Farmers Ins. Exch., 632 F.3d at 785 (cautioning that no part of the

contract    is     to   be    disregarded);      J.A.      Sullivan    Corp.    v.

Commonwealth, 494 N.E.2d 374, 378 (Mass. 1986) (holding that

"[e]very phrase and clause must be presumed to have been designedly

employed,    and    must     be   given    meaning   and     effect,    whenever

practicable,     when   construed      with    all   the    other     phraseology

contained in the instrument") (internal quotation marks omitted).


                                      -11-
            Furthermore, nothing in the mortgage indicates that these

seven distinct subsections under 4.00 are interconnected. The fact

that each remedy is a separate subsection and is a complete

thought, ending with a period and not a comma or a semicolon in

fact compels the opposite conclusion. Lunt v. Aetna Life Ins. Co.,

149 N.E. 660, 662 (Mass. 1925) (holding, in the analogous insurance

policy-interpretation context, that "[p]unctuation may be resorted

to as an aid in construction when it tends to throw light on the

meaning") (internal quotation marks omitted).

            Also significant, Section 4.05 does not reference any

other subsection within Section 4.00, nor does Section 4.05 state

that it applies to all sales pursuant to the mortgage.            No other

remedy within Section 4.00, including Section 4.06, makes reference

to Section 4.05.     This is unsurprising given that Section 4.05 and

Section    4.06   serve   different   purposes.       Section   4.05   is   a

contractual self-help remedy, whereas Section 4.06 allows the

lender to use statutory remedies, which typically have their own

notice    and   procedural   requirements,   making    it   unnecessary     to

restate them in the contract itself.

            Had Barclays in fact intended to incorporate Section

4.05's notice requirements into other mortgage provisions, it could

have done so just as it incorporated certain provisions into others

elsewhere in the mortgage.        For instance, Section 1.03 of the

mortgage, which dictates that other liens cannot be placed on the


                                   -12-
vessel,   specifically      references       Section   2.04   and    its    minimum

insurance limitations.          Similarly, Section 3.09 (contained in the

"EVENTS OF DEFAULT" portion of the mortgage) incorporates other

parts of the mortgage.            It provides: "Any Guarantor or other

Obligor under the Obligations accured [sic] hereby shall take any

action    as    outlined   in    Paragraph    (3.07)   above   or    shall     have

instituted against such person any action as outlined in Paragraph

(3.08) above."7

               Further undermining Poynter's position is the following.

Section 5.00, named "OTHER AGREEMENTS ON DEFAULT OR OTHERWISE,"

contains ten subsections which further describe the parties' rights

and   responsibilities.          Subsection    5.09,   "Powers      and    Remedies

Cumulative," explains the breadth of remedial rights the mortgage

confers on Barclays. It states: "Each power or remedy herein given

to the Mortgagee . . . shall be cumulative and in addition to every

other power or remedy specifically given in this Mortgage or

existing in admiralty, in equity, at law, or by statute."                     Thus,

according to Section 5.09, Barclays had at its disposal all rights

afforded to it by law, whatever the source, which it could exercise

singularly or in conjunction with its other rights.

               Here all roads lead to the same conclusion.                 Sections

4.01 through 4.07 gave Barclays multiple stand-alone options upon


      7
       Section 3.07 relates to the yacht owner being required to
apply for bankruptcy. Section 3.08 explains when an involuntary
bankruptcy case will be filed against the owner.

                                      -13-
default and, given these choices, it opted to conduct a sale under

the Florida UCC pursuant to Section 4.06.       The mortgage's plain,

unambiguous   terms    make   clear   that   4.05's   specific   notice

requirements do not extend to such sales under 4.06.8     To interpret

the mortgage otherwise would be to interpret it "in a way contrary

to the plain and obvious meaning of its terms," which is something

courts may not do.    John Hancock Life Ins. Co. v. Abbott Labs., 478

F.3d 1, 7 (1st Cir. 2006) (internal quotation marks omitted).

                              CONCLUSION

          Since we find no merit to Poynter's claim that Barclays

was required to comply with Section 4.05's notice proviso, we have

no need to decide his follow-up contention that Barclays's failure

to provide such notice should render it unable to collect the

deficiency.   For the above reasons, we affirm the district court's

grant of summary judgment.




     8
       Our finding that Barclays did not have to comply with
Section 4.05's dictate brings our notice analysis to a close. We
do not need to get into whether Barclays's sale, or specifically
the notice it provided, complied with Florida's UCC.        Poynter
specifies in his brief that he does not question the mechanics of
the actual sale but only contests Barclays's failure to give notice
under 4.05. Though Poynter says he reserves the right to challenge
the propriety of the sale, we are not sure where or when he is
reserving it for since the district court granted summary judgment
on liability and this is his appeal from that grant.         But it
suffices to note that Poynter has not raised the issue here and
therefore we will not address it.

                                 -14-
