USCA1 Opinion

NOT FOR PUBLICATION

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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1448

FEDERAL FINANCIAL GROUP, INC.,

Plaintiff, Appellee,

v.

CHARLES E. SERRA, JR.,

a/k/a CHARLES SERRA, JR.,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joyce L. Alexander, U.S. Magistrate Judge]

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Before

Boudin, Circuit Judge,

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Bownes, Senior Circuit Judge,

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and Skinner,* Senior District Judge.

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Robert H. Greene for appellant.

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Carolyn McAboy with whom John A. Doonan and Doonan & Graves w
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on brief for appellee.

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November 15, 1996

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*Of the District of Massachusetts, sitting by designation.

Per Curiam.
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Although the transactions underlying

this

appeal

are complicated,

described.

New England

October

may be

1986,

two trucks, borrowing the funds

and

in

Serra's agent, who

over

central events

simply

In 1985, defendant in the district court, Charles

Serra, bought

of

the

using the

trucks

transaction

from the Bank

as collateral.

apparently

In

conducted

by

managed the trucks, the notes were rolled

and new notes were

There was a default on the

issued with some

notes.

changes in terms.

Serra now claims that the

agent did not have authority to roll over the notes.

In

the meantime, the trucks have been sold by the bank.

The present suit by a successor to the bank's interest is for

the deficiency.

In the district court, the magistrate

granted summary judgment for the plaintiff.

judge

On appeal, Serra

claims that the action was time-barred, that he is not liable

on

the assertedly unauthorized new

notes, and that the sale

of the trucks was not commercially reasonable.

de novo, and
________

Grenier
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we draw

factual inferences in

v. Vermont Log Bldgs., Inc., 96 F.3d

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Our review is

Serra's favor.

559, 562 (1st

Cir. 1996).

The

The

statute of

four-year

limitations claim

statute of

limitations

is easily

relied

resolved.

upon by

the

defendant does not apply to this promissory note secured by a

chattel

See,
___

mortgage, because it is not

a transaction in goods.

e.g., Universal Underwriters Ins. Co.

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-2-2-

v. Ross,
____

1991

Mass. App. Div. 23, 25 (Mass. Dist. Ct. 1991).

As to whether

the six-year or twenty-year statutory period applies, we need

not decide the question because both cover the present claim.

Either

one

was

still

receivership

in

January

period by an

additional six

1821(d)(14).

running

1991,

when

the

extending

FDIC

the

years pursuant to

assumed

limitations

12 U.S.C.

Turning to the validity of the new notes, Serra's denial

of his agent's authority

on

alleged unwritten

attorney

used

available

by

to the

district

court

to make them rests in

limitations

on the

the

agent,

which

bank

at the

time

magistrate

whether

see no reason to

and

agreements

how

that

far

that the

made

The

limitations,

1823(e)(1).

pursue the interesting question of

D'Oench, Duhme
_______________

were not

power of

these

of

v. FDIC, 315 U.S. 447 (1942)

____

made with

affect a document that the bank relied on.

clear

presumably

of refinancing.

and its statutory counterpart, 12 U.S.C.

We

written power

was

disregarded

relying on D'Oench, Duhme & Co.

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some measure

attorney

applies

bank but

to

secret

which may

It is not at all

authorized the

agent to

execute both

power

weight

show

of the new

of attorney

to the

notes.

were read

Thus,

even if the

literally, without

alleged unwritten

limitations, it

written

giving any

might not

that Serra's agent did have authority to roll over both

notes.

-3-3-

However,

we

proceedings to

were

of apparent

allow

need

to

remand

rolled over

by

further

authority or estoppel,

mistake or

without

case that Serra benefited

cancellation of the old

for

authority or to

require more factual development.

nevertheless the

the

no

determine the agent's actual

consider claims

which would

see

If the notes

authority, it

is

directly because

notes discharged his

Serra to escape liability on the

both of

debt.

To

new notes would be a

patent case of unjust enrichment.

This principle is established in Massachusetts, and

application to

e.g., FDIC v.
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erroneous bank

transactions is plain.

Csongor, 464 N.E.2d 942,

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its

See,
___

945-46 (Mass. 1984);

National Shawmut Bank of Boston v. Fidelity Mutual Life Ins.

_______________________________
__________________________

Co., 61 N.E.2d 18,

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Restitution
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complaint

answer

22 (Mass. 1945); see also

________

1 (1937).

Unjust enrichment was pleaded in the

and nothing

to the claim.

Restatement of
______________

in the

record suggests

any possible

As the terms of the new notes are more

favorable to Serra, their enforcement--rather than any effort

to revive the original notes--works in Serra's favor.

Finally, it is true that deficiencies in notice required

the

plaintiff to

show, pursuant

Chase,
_____

609

N.E.2d

541 (Mass. 1993),

auction

N.E.2d 479,

at

which

the

reasonable.

But

we

483

to Shawmut Bank, N.A.

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(Mass. App.

that the

aff'd, 624
_____

professionally conducted

trucks were

sold

agree

the

with

Ct.),

v.

was

commercially

appraisal

of

the

-4-4-

magistrate judge in concluding

made.

that such a showing

had been

See Nadler v. Baybank Merrimack Valley, N.A., 733 F.2d

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182, 183-84

(1st Cir. 1984).

Serra has

defended but his liability is clear.

been imaginatively

Affirmed.
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