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Resolution Trust
Company (RTC or
the
due
from
Leasing
defendants-appellants
Corporation
Harold
(collectively,
M.
"Gold")
Gold
under
and
Graphics
their joint
guaranty of
tion.
of
to First Equity
default.
only
the
The
amount claimed
______
Funding Corpora-
by RTC.
It asserted
no affirmative
defenses.
On September 20, RTC moved for summary judgment.
failing
to
file
timely
P. 56(f),
answer
see
___
D.
Loc.
R.
R.
Mass.
sought leave to
P. 15(a).
for
and, on
opposition,
After
amend its
amend its
on the request
We affirm.
I
I
DISCUSSION
DISCUSSION
__________
Leave to Amend
Leave to Amend
______________
for additional
We review denials of
abuse
of discretion,
adequate
deferring to
reason apparent
from the
F.2d
the
record.
Leave to
for any
Demars v.
______
General
_______
849, 851
district court
15 for
(1st
Cir. 1970),
amend is to
cert.
____
be "freely
531, 536
(1st Cir.
case was
not filed
until after
RTC moved
Torres-Matos
____________
for summary
convincing evidence."
Inc., 901
____
by "substantial and
(citations omitted).
The
waived its
advances on
appeal is
that RTC
of any kind."
Gold concedes
made after
that no principal
September 15,
1991.
ten
a Gold consultant
further discovery
terizations
employees
of
indicating
alleged
at unidentified
that
The
Jeffery Stitt
convincing evidence,"
an event of default.
parol
discussions with
times
fall far
id., of "decisive
___
[RTC] would
not
insist
anonymous
short of
RTC
"clear and
contractual
provision at
issue be performed,"
F.2d 801, 810 (1st Cir. 1991) (citations omitted) (applying Mass.
law).
evidence as
required by
Fed. R.
Civ. P. 56(e).
See
___
Lopez v.
_____
"Second
Affirmative
the doctrine
nor
its
of estoppel."
argumentation in support of
trict court.
Defense,"
the
proposed
is barred by
neither explication
in the dis-
112 S.
estoppel claim
Ct.
1939 (1992).
on appeal.
Nor
Thus, even
does
appeal."), cert.
____
Gold discuss
the
waived on appeal.
(1st Cir.
1992).
The
alleged
third
entitlement
affirmative defense,
to a
to the
one-year
predicated
grace
on Gold's
period to
absence of competent
cure
the
evidence of
an
enforceable waiver and the fact that the default was never cured.
See supra pp. 3-4.
___ _____
Finally, the proposed amended
exclusively on "information and belief"
require the borrower to
answer asserts
loan-to-collateral-value
ratio required
under
the note,
based
which
loan
exists.
Moreover,
Gold's attempt
at
delaying
lack of compe-
See Fed. R.
___
Civ.
P. 56(e); Mesnick v.
_______
(1st
matter
the
motion must be
met by "defi-
Similarly, Gold's
"convincing
defense.
perfunctory assertion
evidence"
required
See Torres-Matos,
___ ____________
to
establish
901 F.2d
at
of the
"substantial"
1146.
Lastly, this
hereby
waives any
other act
or
omission of
the Bank
the scope
eleventh hour to fend off summary judgment, proposed four patently futile affirmative defenses fully meriting summary
Jackson v.
_______
Salon, 614
_____
F.2d 15,
17
(1st Cir.
rejection.
1980); see
___
also
____
tiptoe through
within
Mass. Loc. R.
7.1(b)(2).
opposition did
Lopez, 938
_____
the record,
revealed no
to summary judgment.
viewed
trialworthy
Summary judgment
in the
light
issue
of
most favorable
material fact
1517.
to file timely
See D.
___
and
___
Gold,
RTC
___
was
___
to
district court
F.2d at
the
RTC proffered
in
the amount
claimed under
examination of all
untimely
of Gold's
its loan
guaranty.
submissions
a trialworthy
timely
belatedly asserted
was liable
Moreover, an
as well
issue of
as
material
indebtedness or to any
in
the district
court.
stances.1
"Just Damages" Under Rule 38
"Just Damages" Under Rule 38
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____________________
discovery would
Finally, RTC
including attorney
App. P. 38.
an
requests
fees and
Even though
an
award
of
"just
damages,"
to Fed.
R.
to
late claims
at undeserved length
dilatory aim
and amenability to
offered no
tion,
other plausible
Accordingly,
shall
be
sanction.
against
demonstrate their
Moreover, Gold
litigation tactics
a reasonable
imposed
in order to
attorney fee
Gold for
this
163 (1st
double
costs
and attorney
fee
as just
on appeal.
double costs
frivolous,
appeal.
to Fed.
a justifica-
below or
award and
has
dilatory
R. App. P.
38, awarding
damages
for frivolous
appeal).
The district court judgment is affirmed.
The district court judgment is affirmed.
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Double costs
Double costs
____________
A copy thereof is to be
A copy thereof is to be
_________________________
SO ORDERED.
SO ORDERED.
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