
USCA1 Opinion

	




          January 27, 1994  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-1542                        FEDERAL DEPOSIT INSURANCE CORPORATION,                         AS RECEIVER FOR BANK OF NEW ENGLAND,                                 Plaintiff, Appellee,                                          v.                              ANCHOR PROPERTIES, ET AL.,                                     Defendants,                 RICHARD GLEICHER, INDIVIDUALLY, AND AS HE IS TRUSTEE                           OF GROSVENOR PARK REALTY TRUST,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this court  issued on  January 5,  1994, is          amended as follows:               Amend  the cover sheet to show that  Judge Jack E. Tanner is          from the  Western District of  Washington and was sitting  on the          District Court of Massachusetts by special designation.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1542                        FEDERAL DEPOSIT INSURANCE CORPORATION,                         AS RECEIVER FOR BANK OF NEW ENGLAND,                                 Plaintiff, Appellee,                                          v.                              ANCHOR PROPERTIES, ET AL.,                                     Defendants.                 RICHARD GLEICHER, INDIVIDUALLY, AND AS HE IS TRUSTEE                           OF GROSVENOR PARK REALTY TRUST,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Jack E. Tanner,* Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Peter R. Beatrice, Jr., with whom Beatrice & Beatrice was on               ______________________            ___________________          brief for appellant.               Shannon M. Fitzpatrick, with whom Williams & Grainger was on               ______________________            ___________________          brief for appellee FDIC.                                 ____________________                                   January 5, 1994                                 ____________________          ________________________          *Of the Western District of Washington, sitting by designation.                      BOWNES,  Senior Circuit Judge.  This appeal asks us                      BOWNES,  Senior Circuit Judge.                               ____________________            to  review the  district court's  grant  of summary  judgment            setting aside  a conveyance  of real  property by  defendant-            appellant,  Richard   Gleicher,  as  fraudulent.     Gleicher            disputes that he intended to  commit a fraud, and argues that            summary  judgment  is  therefore  inappropriate.   Plaintiff-            appellee, the  Federal Deposit Insurance  Corporation (FDIC),            contends that Gleicher's conclusory remarks are  insufficient            to overcome the circumstantial evidence of fraud.  We affirm.                                          I.                                          I.                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                                  __________________                      The  following facts are undisputed.  In June 1987,            Gleicher borrowed $193,000 from the Bank of New England, N.A.            (BNE)  in order  to buy  a three-family  home located  at 7-9            Beacon  Hill  Avenue  in  Lynn,  Massachusetts.    In  return            Gleicher executed a demand note  (the "Note") in that  amount            in BNE's favor with an expiration  date of May 1, 1990.   The            Note was secured by a mortgage on the Lynn property.                        Gleicher had several  other financial dealings with            BNE.  In  1988 he personally guaranteed two  other loans, one            for $1.5 million  to a realty trust and  another for $300,000            to a  limited partnership  (of which  Gleicher was  a general            partner).  The $300,000 loan was in the form of an  unsecured            line of credit due to expire on December 30, 1989.                                         -2-                                          2                      On  January 23, 1990, Deborah Stein, a loan officer            at  BNE,  requested an  updated personal  financial statement            from  Gleicher.   Two months later  Stein tried  to telephone            Gleicher  because   he  had  not   furnished  the   requested            information.     On  April  11,  following  a  succession  of            unreturned messages,  Stein finally  succeeded in  contacting            Gleicher.  Stein informed Gleicher that the  $300,000 line of            credit was  fully drawn and  had expired.  She  told Gleicher            that in order to renew the line,  it would have to be secured            with,  among other  things, additional  real  estate.   Stein            stressed  the need  for  Gleicher to  send  the bank  updated            personal financial  statements, including  tax  returns.   In            connection with the Note, Stein told Gleicher that BNE wanted            a recent  appraisal of  the mortgaged property  as well  as a            current  cash  flow  statement.     Finally,  Stein  reminded            Gleicher that  the Note was  a demand note and  would shortly            expire, although  she reassured him that the bank intended to            work  with  him to  resolve  any problems  that  might arise.            Similar  financial information was requested of Gleicher from            a second  BNE loan officer  with respect to the  $1.5 million            realty trust loan.                      On  April  16,  1990, five  days  after  Gleicher's            conversation  with Stein, he transferred a piece of property,            located at 25-27 Grosvenor Park  in Lynn, from himself to the                                         -3-                                          3            Grosvenor Park  Realty Trust  (the "Trust").1   Gleicher  was            the  trustee  of the  Trust,  and  his  father was  its  sole            beneficiary.   No money  changed hands  in this  transaction.            Gleicher's  most recent  financial statement,  dated December            31, 1989, indicated that the property was worth  $260,000 and            had no  outstanding mortgages.   Prior  to the transfer,  the            Grosvenor  Park  property  was Gleicher's  sole  unencumbered            asset.                      On  April  25,   1990,  Gleicher,  acting  in   his            individual  capacity,  granted  a  $175,000  mortgage on  the            property to Harbor Financial Resources, Inc., a Massachusetts            corporation.   Harbor's annual report, completed in September            1990   by   Gleicher,   indicated  that   Gleicher   was  the            corporation's president, treasurer, clerk and sole director.                      On  August 1, 1990, Gleicher defaulted on the Note.            On August 31, BNE "called in"  the Note, but Gleicher did not            pay.   By this time Gleicher  had also defaulted on his other            two obligations to BNE.  In September 1990 BNE commenced this            action   in  state  court  against  a  number  of  defendants            including  Gleicher, both individually and as trustee for the            Trust, and Harbor.2  Shortly thereafter, the FDIC became  the                                            ____________________            1.  Although the record  is not clear on this,  it would seem            that this trust was formed specifically for this transaction.            The  Grosvenor Park Realty Trust was  a separate and distinct            trust from the one that was loaned $1.5 million by BNE.            2.  The claims  brought  against the  other  defendants  were            voluntarily dismissed on December 30, 1992.                                         -4-                                          4            real  party in  interest, and  the  case was  removed to  the            United   States   District   Court   for  the   District   of            Massachusetts.3                      In  February  1991,  the  FDIC  foreclosed  on  the            property  that secured  the  Note, and  auctioned  it off  as            required by law.   After selling the property  to the highest            bidder and  applying  the proceeds  to the  principal of  the            Note, a deficiency of $88,000 remained.                                         II.                                         II.                                  PROCEDURAL HISTORY                                  PROCEDURAL HISTORY                                  __________________                      On January  14, 1993,  the FDIC  moved for  summary            judgment  on the remaining  counts of its  amended complaint.            Count V alleged  that Gleicher was personally  liable for the            amount of  the deficiency plus  accrued interest.   Count  VI            alleged that Gleicher's conveyance of the property located at            25-27 Grosvenor Park to the Trust, along  with the subsequent            mortgage   granted  to  Harbor,   should  be  set   aside  as                                            ____________________            3.  As was the  fate of many New England banking institutions            in the late 1980's, BNE was unable  to survive the decline in            the real estate market, and collapsed under the weight of bad            loans.  In  January 1991, the FDIC was  appointed Receiver of            BNE.  The  New Bank of New England (NBNE) was then created as            a  bridge  bank, and  became  the  assignee  of the  FDIC  as            Receiver for BNE.  In July  1991, NBNE dissolved and the FDIC            was appointed as  its Receiver for the purpose  of winding up            its affairs.    In  December  1992,  the  FDIC  was  formally            substituted  as   the  plaintiff   in  this   action.     For            simplicity's sake, we will hereinafter refer to the FDIC when            we are talking about BNE, NBNE or the FDIC.                                         -5-                                          5            fraudulent.   Gleicher did not submit a statement of disputed            facts or an opposition to the motion.                      On March 17, 1993, a hearing was held on the FDIC's            motion  for  summary  judgment.    At  that  time,  Gleicher,            appearing on his own behalf, handed the court an affidavit in            opposition to the FDIC's motion.  After entertaining argument            from both parties, the court held:                      I can't  find any material issue  of fact                      in dispute in this case, summary judgment                      is  granted  to  the   plaintiff  on  the                      deficiency  as of today. . . . [T]here is                      no  material issue of fact as far as this                      Court can tell as to the transfer of that                      property of  the Grosvenor address.   And                      the Court finds that it was done to avoid                      creditors  and,  therefore,   fraudulent.                      And it is set aside.            The court  also ordered  that the mortgage  to Harbor  be set            aside.   On April  8, final judgment  was entered  consistent            with the court's  ruling.  Because it failed to appear at the            hearing, a default judgment was entered against Harbor.  This            appeal ensued.4                      On  May 6,  1993,  Gleicher  filed  his  notice  of            appeal.    On  June  18  the FDIC  moved  for  sanctions  and            dismissal against  Gleicher based  on his  failure to  comply            with four separate deadlines, including the one governing the            filing of his  appellate brief.  Rather than  respond to this                                            ____________________            4.  Gleicher  does not contest  the deficiency judgment.   In            addition,  he conceded  at oral  argument  that the  mortgage            given  to  Harbor  was  invalid  regardless  of  whether  the            transfer of the property to the Trust was fraudulent or not.                                         -6-                                          6            motion, Gleicher moved  for an extension of time  to file his            brief and to serve  his appendix.  This  motion was filed  on            July 7, eight days after  his brief was originally due.   The            FDIC opposed the motion and renewed its motion to dismiss.                      On  July 30, 1993, we granted Gleicher's motion for            an extension and awarded costs to the FDIC in connection with            its  preparation of a counter-appendix.  Our order explicitly            warned Gleicher and  his counsel that "no  further extensions            [would]  be  granted" beyond  August 6,  1993.   Moreover, we            warned them "that any continued inattention to the procedural            requirements on appeal may result in harsher sanctions."                      In  an unopposed motion  dated October 8,  the FDIC            once again moved  for sanctions and dismissal.   Gleicher had            allegedly failed to  comply with either prong of  our July 30            order:  his  brief was not filed  until August 9, and  he had            not  reimbursed  the  FDIC  for the  costs  of  preparing the            counter-appendix  despite repeated requests.   On November 2,            one day before oral argument, Gleicher paid the FDIC's costs.            Further,  Gleicher   did  not   attend   a  scheduled   CAMP5            settlement hearing in  this case despite repeated  efforts to            secure  his participation  by  both  the  FDIC and  the  CAMP            staff.6                                            ____________________            5.  Civil Appeals Management Program.            6.  At oral argument Gleicher's counsel was unable to offer a            satisfactory explanation for any of these failings.                                         -7-                                          7                      Under Fed. R.  App. P. 3(a) the failure  of a party            "to take any  step other than the filing of a timely appeal .            . . is ground . .  . for such action as the court  of appeals            deems  appropriate, which may include dismissal."  Of course,            dismissal is a drastic step, and financial sanctions  are the            more common course  of action.  See, e.g.,  Christopher W. v.                                            ___  ____   ______________            Portsmouth  Sch. Comm., 877  F.2d 1089, 1099  (1st Cir. 1989)            ______________________            (appellees  held  responsible  for   costs  as  sanction  for            untimely filing of  brief).   Dismissal under  Rule 3(a)  has            recently been discussed by the Third Circuit:                      Dismissal  of an  appeal  for failure  to                      comply  with  procedural   rules  is  not                      favored,   although   Rule    3(a)   does                      authorize it in  the exercise of a  sound                      discretion.   That  discretion should  be                      sparingly  used  unless   the  party  who                      suffers it has had an opportunity to cure                      the   default  and   failed  to   do  so.                      Moreover, before dismissing an appeal, we                      believe that a court should consider  and                      weigh   such  factors   as  whether   the                      defaulting party's  action is  willful or                      merely  inadvertent,  whether   a  lesser                      sanction can  bring about  compliance and                      the  degree  of  prejudice  the  opposing                      party   has  suffered   because  of   the                      default.            Horner Equip.  Int'l, Inc. v.  Seascape Pool Ctr.,  Inc., 884            __________________________     _________________________            F.2d 89, 93 (3d Cir. 1989).                      In  our  estimation,  Gleicher's conduct  at  least            approaches  the  level   of  behavior  which  would   warrant            dismissal.  First,  our July 30 order clearly placed Gleicher            and his counsel on notice of the necessity of adhering to the                                         -8-                                          8            rules of this court.  Second, in light of this notice we find            it  difficult  to believe  that Gleicher's  intransigence has            been inadvertent.   Nevertheless,  because the  FDIC has  not            suffered any prejudice  as a result of  Gleicher's failure to            follow required procedures, apart from being  inconvenienced,            we have allowed the appeal to go forward.                                         III.                                         III.                                      THE MERITS                                      THE MERITS                                      __________                      The  sole issue raised  by Gleicher is  whether his            affidavit raises a triable issue as to his intent.                      Our  review   of  summary  judgment   decisions  is            plenary.  Levy v.  FDIC, 7 F.3d  1054, 1056 (1st Cir.  1993).                      ____     ____            Summary  judgment  is  appropriate   when,  based  upon   the            pleadings, affidavits, and depositions,  "there is no genuine            issue as to  any material fact," and where  "the moving party            is entitled to judgment as a matter of law."  Fed. R. Civ. P.            56(c);   see Gaskell v. Harvard  Co-Op Soc'y, 3 F.3d 495, 497                     ___ _______    ____________________            (1st Cir.  1993).   A  material fact  is  one which  has  the            "potential to affect the outcome of the suit under applicable            law."   Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703                    ________________    ______________            (1st  Cir. 1993).   In  applying this  standard, we  view the            record in  the light most  favorable to the  nonmoving party.            Levy, 7 F.3d at 1056.            ____                      Under this framework, the nonmoving party,  in this            case Gleicher,  bears  the burden  of  placing at  least  one                                         -9-                                          9            material fact into  dispute after the movant  offers evidence            of the absence of a genuine issue.  Darr v. Muratore, No. 93-                                                ____    ________            1154,  slip  op. at  9  (1st Cir.  Nov.  1, 1993).    We have            recognized that, "[e]ven in cases where elusive concepts such            as motive  or intent  are at issue,  summary judgment  may be            appropriate  if  the  nonmoving   party  rests  merely   upon            conclusory    allegations,    improbable    inferences,   and            unsupported speculation."    Medina-Munoz  v.  R.J.  Reynolds                                         ____________      ______________            Tobacco Co., 896 F.2d  5, 8 (1st Cir. 1990).   This being the            ___________            rule, "[b]rash  conjecture,  coupled with  earnest hope  that            something concrete will materialize, is insufficient to block            summary judgment."  Dow v.  United Bhd. of Carpenters, 1 F.3d                                ___     _________________________            56, 58 (1st Cir. 1993).                      As  a preliminary  matter, the  FDIC contends  that            because Gleicher's affidavit was  not filed until sixty-three            days  after its motion  for summary  judgment was  served, we            should not  consider the affidavit  in ruling on  the summary            judgment motion.   See D. Mass. R. 7.1(B)(2).7   Further, the                               ___            FDIC points out that Gleicher failed to submit a statement of            disputed facts, and therefore, its factual assertions must be                                            ____________________            7.  Rule 7.1(B)(2) provides in pertinent part:                      A party opposing a motion, shall file  an                      opposition to the  motion within fourteen                      (14)  days after  service  of the  motion                      . . . .   Affidavits  and other documents                      setting  forth  or  evidencing  facts  on                      which the  opposition is  based shall  be                      filed with the opposition.                                         -10-                                          10            deemed  admitted.   See D.  Mass. R.  56.1;8 see  also United                                ___                      ___  ____ ______            States  v. Parcel  of Land,  958 F.2d  1, 5  (1st  Cir. 1992)            ______     _______________            (omission  of  statement  of disputed  facts  has  "the legal            effect of `admitt[ing] the government's factual assertions.'"            (quoting United States v. One  Lot of U.S. Currency, 927 F.2d                     _____________    _________________________            30, 32 (1st Cir. 1991)) (internal quotation marks omitted)).                      Gleicher avers  that his  opposition to  the FDIC's            motion  was  evidenced  in various  correspondence  with  the            district court,9 and, that his  pro se status entitled him to            some leeway  with regard to  the district court's rules.   We            have consistently held that a litigant's "pro se status [does            not] absolve him  from compliance with  the Federal Rules  of            Civil Procedure."   United States v. Heller, 957  F.2d 26, 31                                _____________    ______            (1st Cir. 1992) (quoting Feinstein  v. Moses, 951 F.2d 16, 21                                     _________     _____            (1st  Cir.  1991)).   This  applies  with  equal force  to  a                                            ____________________            8.  Rule 56.1 states:                         Opposition  to  motions   for  summary                      judgment   shall   include    a   concise                      statement of the material facts of record                      as to  which it  is contended  that there                      exists a genuine issue to be tried .  . .                      .   Material facts of record set forth in                      the statement  required to  be served  by                      the moving party  will be deemed for  the                      purposes of  the motion to be admitted by                      opposing parties  unless controverted  by                      the statement  required to  be served  by                      opposing parties.            9.  At  the  hearing  before  the  district  court,  Gleicher            directed  the court's attention  to his letter  of January 18            addressed to  the court  and copied  to opposing counsel,  in            which  he "respectfully request[ed]" a hearing on the summary            judgment motion.                                         -11-                                          11            district  court's  procedural  rules.   Moreover,  Gleicher's            characterization of himself  as a pro se litigant  is at best            dubious.  A  pro se litigant  is "one who  does not retain  a            lawyer  and  appears for  himself  in  court."   Black's  Law            Dictionary 1221 (6th ed. 1990).  Although Gleicher did appear            on his own behalf at the summary judgment hearing, the record            indicates that, at  the time of the hearing,  Gleicher had no            fewer  than  two  attorneys  of  record.10    Both  of  these            attorneys were served with the FDIC's summary judgment motion            and were still counsel of record for Gleicher at the time his            responsive papers were due.                      Under  the circumstances,  we are receptive  to the            FDIC's argument  that Gleicher's affidavit should be ignored.            Nevertheless,  we will  bend  over backwards  to be  fair and            consider  that document  as  part  of  the  summary  judgment            record.                      Both state  and federal fraudulent  conveyance laws            are implicated in  this action.  Under federal  law, the FDIC            acting   in  its  capacity  as  a  receiver  for  an  insured            institution,  may avoid  a transfer  of any  interest of  any                                            ____________________            10.  At  the summary judgment hearing the FDIC indicated that            the  law  firm of  Gordon &  Wise  had moved  to  withdraw as            counsel for Gleicher, although it  had not received a copy of            the  motion.   Gleicher's  other  record  counsel,  Peter  R.            Beatrice,  never moved  to withdraw,  and  has resurfaced  as            Gleicher's  counsel  on this  appeal.   It  was  Beatrice who            originally filed answers for Gleicher, in both his individual            capacity and as trustee of the Trust, and for Harbor.                                         -12-                                          12            person who is a debtor of the institution if the transfer was            made  "with the  intent  to hinder,  delay,  or defraud"  the            institution  or  the  FDIC.    12  U.S.C.     1821(d)(17)(A).            Similarly,  under Massachusetts  law,  a transfer  made  with            "actual  intent .  . .  to  hinder, delay  or defraud  either            present  or  future  creditors, is  fraudulent,"  and  may be            avoided.  Mass. Gen. L. ch. 109A    7, 9 (1990).11                      According to the FDIC,  it has presented conclusive            circumstantial    evidence    that    Gleicher   fraudulently            transferred the property at issue.  We have acknowledged that            "[i]t  is   often  impracticable,  on   direct  evidence,  to            demonstrate  an actual  intent to  hinder,  delay or  defraud            creditors."   Max  Sugarman  Funeral  Home,  Inc.  v.  A.D.B.                          ___________________________________      ______            Investors, 926  F.2d 1248,  1254 (1st  Cir. 1991)  (involving            _________            voidable fraudulent transfers under   548(a)(1) of Bankruptcy            Code).   Thus, courts frequently infer fraudulent intent from            the circumstances surrounding a transfer, placing  particular            emphasis on certain indicia or badges of fraud.  Id.                                                             ___                      Among the more  common badges of  fraudulent intent            at the time of a transfer are:                                            ____________________            11.  It  is unclear whether 12 U.S.C.   1821(d)(17) "embodies            a separate federal  fraudulent conveyance law, or  whether it            merely codifies [Massachusetts] law."  Resolution Trust Corp.                                                   ______________________            v. Cruce, 972  F.2d 1195,  1201 (10th  Cir. 1992)  (quotation               _____            omitted).  In the present action, the parties have proceeded,            as  did the  district court,  on  the shared  assumption that            there  is no substantive difference between the two statutes.            Because we  can see no  material difference between  the two,            our conclusions apply with equal strength under either law.                                         -13-                                          13                      (1)  actual   or  threatened   litigation                      against  the  debtor;   (2)  a  purported                      transfer of  all or substantially  all of                      the debtor's property;  (3) insolvency or                      other  unmanageable  indebtedness  on the                      part  of   the  debtor;  (4)   a  special                      relationship between  the debtor  and the                      transferee;  and  (5)  retention  by  the                      debtor of  the property  involved in  the                      putative transfer.            Id. (citations omitted).   We have held  that "the confluence            ___            of  several  [badges  of  fraud]  can  constitute  conclusive            evidence of an actual intent to defraud."  Id. at 1254-55.                                                       ___                      Briefly  summarized,   the  FDIC's   circumstantial            evidence  of fraudulent  intent  consists  of the  following:            Gleicher  transferred his sole unencumbered asset to a trust,            of which  he was trustee and his father the beneficiary.  The            transfer  was made for  no documented consideration  and came            just five  days  after a  major  creditor asked  for  updated            financial   information.     Gleicher's  personal   financial            situation  was rapidly deteriorating.   Only nine  days after            the transfer,  Gleicher granted  a $175,000  mortgage in  the            property, enuring to  his personal benefit, to  a corporation            that  he  controlled.    Within  four  months,  Gleicher  had            defaulted on all of his obligations to the bank.                      In response, Gleicher musters the following:                      12.    The  transfer  of 25-27  Grosvenor                      Park. Lynn was  not a  transfer to  avoid                      creditors.                      13.     The  beneficiary  of   the  25-27                      Grosvenor  Park   Trust  is   my  father.                      Transfer  was made  to  a  trust for  his                                         -14-                                          14                      benefit  to compensate  him for  services                      rendered  to me and my companies over the                      course of time.                      14.    At  the  time  that  I  made  this                      transfer, I had no reason to believe that                      any  creditor would  be  looking to  this                      asset  to satisfy  any other  obligation.                      My  assets exceeded  my  liabilities.   I                      informed  BNE that  I had  $200,000.00 in                      cash.                      15.   Until  at least  July  1990, I  had                      enough   liquid   assets    to   pay   my                      $193,000.00 obligation to BNE in full.  I                      was solvent at  the time of  the transfer                      of the property on Grosvenor Park.                      16.   I was able to pay my obligations as                      they came due.                      17.   Since January  9, 1990, I  have not                      owned  or  controlled   Harbor  Financial                      Resources, Inc.            Gleicher Affidavit at 2.  We find the affidavit deficient for            several reasons.                      First, Gleicher contends that the transfer was made            to his  father as  compensation for  past services  rendered.            But, Gleicher  has not  specified what  these services  were,            when they  were rendered, what  their value was, or  for what            company  they  were  performed.   Gleicher's  father  has not            submitted  an affidavit in  connection with this  action.  In            fact, there is  no indication that he was ever  made aware of            his gain.   Moreover, while Gleicher tells us  that he repaid            his devoted  and hardworking  father with  a valuable  asset,            Gleicher immediately  mortgaged that  asset for  his personal            benefit, thus depriving his father of any benefit from it.                                         -15-                                          15                      Next, Gleicher maintains that he was solvent at the            time of the transfer  and had the means to satisfy the entire            $193,000  note.    Gleicher has  not,  however,  attached any            documents indicating his  financial condition at the  time of            the transfer.    Moreover,  given  the  uncontroverted  facts            concerning Gleicher's diminishing net  worth, and the  timing            of  the  transfer  in  relation  to  the   inquiries  by  BNE            employees,  Gleicher's solvency at  the time of  the transfer            would not dispel the powerful inferences of fraud.                      Finally, Gleicher contends that, at the time of the            transfer, he  had no relationship  with Harbor.   Once again,            Gleicher has not attached any documentary evidence to support            this  claim; a claim squarely contradicted by Harbor's annual            report subscribed to by Gleicher himself in September 1990.                      In Carteret Sav.  & Loan Ass'n v. Jackson, 812 F.2d                         ___________________________    _______            36 (1st Cir.  1987), we reviewed a district  court's grant of            summary   judgment  on   plaintiff's   claim  of   fraudulent            conveyance  under Massachusetts law, where a husband and wife            transferred  their house  to their  daughter  for one  dollar            within  months of two  large judgments being  entered against            them.  Id. at 40.   There was also evidence indicating  that,                   ___            at the time of the transfer, the defendants could not satisfy            all  of their  obligations.   Id.    The Carteret  defendants                                          ___        ________            "argued that plaintiff's evidence was insufficient,  but they            presented  no  evidence  of their  solvency,  nor  made other                                         -16-                                          16            showing that would establish the existence of a genuine issue            for trial."  812  F.2d at 40.   We affirmed summary  judgment            and held that,  "[w]here this was  a family transfer  without            consideration, we can see but one conclusion."  Id.                                                            ___                      Our case is strikingly similar.  Given the presence            of  multiple badges  of fraud,  and  Gleicher's inability  to            produce  even a single  properly documented fact  casting any            doubt  on  the FDIC's  position,  we  too  can see  only  one            conclusion, namely, that the transfer was fraudulent.                      Because  we find  this appeal  to  be frivolous  we            assess double costs  against appellant.  See Fed.  R. App. P.                                                     ___            38.                      Affirmed, with double costs to appellee.                      Affirmed, with double costs to appellee.                      _______________________________________                                         -17-                                          17
