FDIC v. Houde ( 1996 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________

    No. 95-1853


    FEDERAL DEPOSIT INSURANCE CORPORATION,
    AS RECEIVER FOR NEW MAINE NATIONAL BANK,

    Plaintiff, Appellant,

    v.

    ROLAND HOUDE AND ORA HOUDE,

    Defendants, Appellees.

    ____________________

    No. 95-1854

    FEDERAL DEPOSIT INSURANCE CORPORATION,
    AS RECEIVER FOR NEW MAINE NATIONAL BANK,

    Plaintiff, Appellee,

    v.

    ROLAND HOUDE AND ORA HOUDE,

    Defendants, Appellants.

    ____________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Gene Carter, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________

    Campbell, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________
    ____________________

















    Jaclyn C. Taner, Counsel, with whom Ann S. DuRoss, Assistant _________________ ______________
    General Counsel, Colleen B. Bombardier, Senior Counsel, Federal _______________________
    Deposit Insurance Corporation, Andrew Sparks, Paul E. Peck, John B. _____________ ____________ _______
    Emory and Drummond & Drummond were on briefs for plaintiff. _____ ___________________
    Jeffrey Bennett with whom Melinda J. Caterine, Clare S. Benedict _______________ ___________________ _________________
    and Bennett and Associates, P.A. were on briefs for defendants. ____________________________




    ____________________

    July 24, 1996
    ____________________


















































    CAMPBELL, Senior Circuit Judge. The Federal Deposit _______________________

    Insurance Corporation ("FDIC") appeals from an order, entered

    in the United States District Court for the District of

    Maine, dismissing its complaint to collect the amount due on

    a $275,000 promissory note executed in 1986 by defendants

    Roland and Ora Houde and made payable to the Maine National

    Bank, and to foreclose on the mortgage securing the Houdes'

    indebtedness. The Houdes cross-appeal from the district

    court's denial of four pretrial motions. For the reasons set

    forth below, we affirm the district court's order.



    I. I.

    In November 1986, Roland and Ora Houde borrowed

    $275,000 from the Maine National Bank ("MNB"), a federally

    insured national banking association, to finance a business

    venture. They executed a note and allonge made payable to

    MNB (collectively the "Note" or "Houde Note"), and secured by

    a mortgage on property located in Maine. After MNB declared

    insolvency in January 1991, ownership of the Note passed to

    the FDIC as receiver, the FDIC says. The FDIC also says that

    it transferred the Houde Note briefly to the New Maine

    National Bank ("NMNB"), a bridge bank set up by the FDIC.

    After the dissolution of NMNB in July 1991, many of its

    assets were purchased by Fleet Bank and the rest, as

    recounted by the FDIC, passed to the FDIC as the duly



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    appointed receiver for NMNB. The FDIC asserts that the Note

    was among the remaining assets transferred to it. All

    parties agree, in any case, that the original Note was in the

    possession of the FDIC at trial.

    The FDIC says that it hired Recoll Management

    Corporation ("Recoll") to manage the receivership assets of

    NMNB. The FDIC maintains that Recoll took over management of

    the Note as well as other obligations owed by the Houdes.

    These other obligations included loans from MNB to Turcotte

    Concrete, a corporation of which Mr. Houde was a 50%

    shareholder, that were guaranteed by the Houdes. Turcotte

    Concrete filed for bankruptcy in 1991, and as part of the

    bankruptcy proceeding, Recoll, on behalf of the FDIC,

    negotiated an agreement in June 1993 resolving Turcotte

    Concrete's debt (the "Conditional Amendment to Guaranty

    Agreements and Promissory Notes," or "Conditional

    Agreement"). According to the FDIC, Recoll separately

    negotiated with the Houdes concerning their personal debt

    evidenced by the Note. The Houdes, however, contend that the

    Conditional Agreement resolving Turcotte Concrete's

    obligations, by its own terms, released their personal

    obligations on the Note. On this theory, they have made no

    payments on the Note since June 1993.

    In July 1994, the FDIC sued the Houdes in Maine

    state court to collect the amount due on the Note and to



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    foreclose on the mortgage securing the debt. The Houdes

    removed the action to the United States District Court for

    the District of Maine and then moved to dismiss or for

    summary judgment on the ground that their personal

    indebtedness on the Note had been discharged by the

    Conditional Agreement. The district court denied the motions

    in September 1994, concluding that there were genuine issues

    of fact as to the meaning and intent of the Conditional

    Agreement. In early 1995, the Houdes moved for judgment on

    the pleadings as well as for summary judgment, reiterating

    their claim that the Conditional Agreement unambiguously

    released them from the Note. In the Houdes' Statement of

    Undisputed Material Facts submitted in connection with their

    summary judgment motion, the Houdes acknowledged that the

    FDIC had been appointed as receiver for MNB. The Houdes also

    moved to dismiss, or for a default judgment based on a claim

    that the servicing agreement between the FDIC and Recoll

    violated the Maine champerty statute. See 17-A M.R.S.A. ___

    516(1). The FDIC cross-moved for summary judgment. In May

    1995, the district court denied these motions.

    A jury trial was scheduled for early June 1995.

    Shortly before trial, the FDIC filed a motion in limine

    seeking to preclude the Houdes from questioning the FDIC's

    standing to recover on the Note. The Houdes opposed this

    motion. The district court denied the motion without



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    addressing the merits of the standing issue. At trial, the

    parties stipulated that (1) the FDIC possessed the original

    Note, (2) the Houdes' signatures on the documents were

    authentic, and (3) the Houdes had made no payments on the

    Note since June 1993. The FDIC offered in evidence the

    original Note which was payable to MNB and had not been

    indorsed to any other entity. The FDIC called as a witness

    James Golden, the FDIC account officer, who had only been the

    custodian of the Houde file for the two weeks prior to trial.

    Golden testified to the series of events occurring after the

    failure of MNB up until the time of trial: (1) the FDIC was

    appointed receiver of MNB, (2) the Note passed to NMNB, a

    bridge bank set up by the FDIC, (3) the FDIC dissolved NMNB,

    (4) the Note passed to the FDIC as receiver for NMNB. Golden

    testified that the Note was not among the NMNB assets that ___

    Fleet Bank purchased from the FDIC. The FDIC did not offer

    or have with it any public or business records evidencing the

    transfers to which Golden testified.

    The Houdes objected to Golden's testimony and to

    the introduction of the Note in evidence, arguing that

    Golden's testimony was inadmissible hearsay, as he had no

    personal knowledge of the transactions to which he testified.

    In addition, they argued that Golden's testimony was not the

    best evidence of the transactions in question. The district

    court sustained the Houdes' objection and struck Golden's



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    testimony. The FDIC then requested a short continuance to

    allow it to obtain documentation of the underlying

    transactions to which Golden had testified. The court denied

    a continuance, granting judgment as a matter of law in favor

    of the Houdes. The court stated that there was "no basis

    whatsoever on which a jury could conclude that the plaintiff

    is entitled to enforce this note."1 In response to the FDIC

    counsel's indication that he would file a motion for

    reconsideration of the directed verdict later that afternoon,

    the court indicated that it would not reconsider its

    ____________________

    1. The district court ruled from the bench:

    There is a complete gap in the evidence
    between the time the bank [sic] was
    lawfully in the possession of Maine
    National Bank and the title to the
    document was in Maine National Bank, and
    the time that it ultimately came to rest
    in the possession of this plaintiff, and
    there is no formal proof, first of all
    that Maine National Bank ever went into
    receivership, if so, what happened with
    respect to any of the assets of that
    institution as a result of that,
    specifically what happened with respect
    to this note and mortgage. And there is
    no proof or evidence sufficient to permit
    a jury to reach a verdict in favor of the
    plaintiff with respect to what happened
    to that note, and what has been referred
    to as its many transitions in ownership
    among, apparently New Maine National
    Bank, Fleet Management Corporation, Fleet
    Bank and RECOLL Management Corporation,
    and ultimately its transfer back into the
    possession of FDIC. It is not even clear
    that the note ever left the possession of
    the FDIC in the first place, but all of
    that is completely in doubt.

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    decision. The court issued a final judgment dismissing the

    FDIC's action on June 8, 1995.



    II. II.

    The FDIC contends that the district court erred in

    finding that the evidence of the FDIC's ownership of the Note

    was so inadequate that the FDIC's claim to enforce the Note

    against its makers, the Houdes, fails as a matter of law.

    Alternatively, the FDIC argues that the district court abused

    its discretion in refusing to grant a brief continuance so as

    to enable the FDIC to procure records that would establish

    its requisite interest in the Note. The Houdes reply that

    the FDIC never presented competent proof of the various

    transactions through which it allegedly acquired lawful

    ownership and possession of the Note, Golden's testimony

    having, in their view, been rightly stricken as hearsay.

    They argue that without such competent evidence, the FDIC's

    case failed as a matter of law.

    The district court dismissed the case because it

    concluded that the FDIC had failed to meet its burden of

    presenting sufficient evidence to establish, prima facie,

    that it was a party entitled to enforce the Note. Without

    proper proof of ownership, the Note would not be admissible

    as a basis for the FDIC's claim. The question, of course,

    would not be whether the FDIC's right to enforce the Note was



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    conclusively established but whether enough of a case was

    made out to go to the jury. See Fed. R. Civ. P. 50(a) ("If ___

    . . . there is no legally sufficient evidentiary basis for a

    reasonable jury to find for [a] party on [an] issue, the

    court may determine the issue against that party and may

    grant a motion for judgment as a matter of law against that

    party.").



    1. The FDIC's Burden of Proof 1. The FDIC's Burden of Proof

    The FDIC argues that possession of the Note was a

    sufficient basis for it to be entitled to a presumption that

    it could enforce the Note. The FDIC points to federal law,

    set forth in FIRREA,2 providing expressly that the FDIC

    succeeds by operation of law to a failed bank's right and

    title in all its assets, see 12 U.S.C. 1821(d)(2)(A), ___

    infra. FIRREA, however, does not spell out what the FDIC _____

    needs to prove in order to show its entitlement to sue on a

    transferred asset like the Note. The Supreme Court has

    recently held that matters left unaddressed in FIRREA are

    controlled by state law. O'Melveny & Myers v. FDIC, 114 S. __________________ ____

    Ct. 2048, 2054 (1994). We look, therefore, to Maine law to

    supplement FIRREA in determining what the FDIC, as receiver

    of NMNB, needed to show for it to be found a party entitled

    ____________________

    2. FIRREA is the Financial Institutions Reform, Recovery,
    and Enforcement Act of 1989, 103 Stat. 183, codified in
    various sections of 12 and 18 U.S.C.

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    to enforce the Note. See, e.g., RTC v. Maplewood Invs., 31 ___ ____ ___ ________________

    F.3d 1276, 1293-94 (4th Cir. 1994) (holding that question of

    whether RTC is a holder in due course is governed by state

    law); see also FDIC v. Grupo Girod Corp., 869 F.2d 15, 17 _________ ____ _________________

    (1st Cir. 1989) (applying Puerto Rico law to determine

    whether the FDIC was a holder in due course); FDIC v. Bandon ____ ______

    Assocs., 780 F. Supp. 60, 63 (D. Me. 1991). But see FDIC v. _______ _______ ____

    World Univ. Inc., 978 F.2d 10, 13-14 (1st Cir. 1992) (pre- _________________

    O'Melveny case). _________

    The applicable Maine law, set forth in the Maine

    Uniform Commercial Code, Negotiable Instruments, 11 M.R.S.A.

    3-1101 et seq.,3 provides that a note qualifying as a ________

    ____________________

    3. The Maine Uniform Commercial Code was amended in 1993,
    after the execution of the Note but before the execution of
    the Conditional Agreement and before the institution of the
    lawsuit in question. The earlier version of the Maine
    Uniform Commercial Code, Negotiable Instruments, was codified
    at 11 M.R.S.A. 3-101, et seq. (repealed in 1993). _______
    Both parties have taken the position in this
    litigation that the Note is a negotiable instrument (the
    Houdes in their appellate brief, and the FDIC in motions
    submitted to the district court), and neither party has
    argued that the Note is not a negotiable instrument even
    though, with its variable interest rate, the Note is arguably
    not a negotiable instrument under the pre-1993 version of the
    Maine Uniform Commercial Code. See e.g., FSLIC v. Griffin, ________ _____ _______
    935 F.2d 691, 697 n.3 (5th Cir. 1991), cert. denied, 502 U.S. ____________
    1092 (1992); New Conn. Bank & Trust Co., N.A. v. Stadium ___________________________________ _______
    Management Corp., 132 B.R. 205, 208-09 (D. Mass. 1991). In ________________
    the absence of an applicable statute, the FDIC's initial
    burden would be subject to Maine common law. In discerning
    the common law requirements for the FDIC to show that it is
    entitled to enforce the variable interest rate Note, we would
    be inclined to look to the statutory requirements for
    enforcing negotiable instruments by analogy. As the parties
    have not argued otherwise and as it is hard to see how the
    outcome of this case would change in any event, we proceed on

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    negotiable instrument can be enforced by "holder[s]" and

    "nonholder[s] in possession of the instrument who [have] the

    rights of [] holder[s]." See 11 M.R.S.A. 3-1301.4 The FDIC ___

    is plainly not a "holder" under Maine law because the Note

    was not indorsed to the FDIC and therefore was not

    "negotiated."5 See 11 M.R.S.A. 3-1201 ("[I]f an instrument ___

    ____________________

    the assertion that the Note is a negotiable instrument under
    Maine law.

    4. The version of the Maine Uniform Commercial Code in
    effect before 1993 also provided that holders as well as
    transferees with the rights of holders could enforce a
    negotiable instrument. See 11 M.R.S.A. 3-201, Comment 8 ___
    (repealed 1993).

    5. The federal holder in due course doctrine, which provides
    a buffer for the FDIC against certain defenses, does not give
    the FDIC the status of a "holder" in the instant situation.
    This Circuit has held that the federal doctrine is generally
    not applicable to the FDIC in its receivership capacity. See ___
    Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty Trust _________________________ _______________________________
    (In re 604 Columbus Ave. Realty Trust), 968 F.2d 1332, __________________________________________
    1352-53 (1st Cir. 1992) (stating that the federal holder in
    due course doctrine does not apply to the FDIC as receiver
    except in the case of a purchase and assumption transaction);
    see also FDIC v. Laguarta, 939 F.2d 1231, 1239 n. 19 (5th ________ ____ ________
    Cir. 1991) (same). But see Campbell Leasing, Inc. v. FDIC, _______ _______________________ ____
    901 F.2d 1244, 1249 (5th Cir. 1990) (stating that the FDIC
    may enjoy federal holder in due course status whether acting
    in its corporate or receivership capacity); Firstsouth, F.A. _________________
    v. Aqua Constr., Inc., 858 F.2d 441, 443 (8th Cir. 1988) ___________________
    (providing FSLIC-Receiver with federal holder in due course
    status).
    We note that the continuing viability of the
    federal holder in due course doctrine is questionable. A
    circuit split has arisen as to whether the doctrine is still
    valid after O'Melveny & Myers, supra. Compare DiVall Insured _________________ _____ _______ ______________
    Income Fund Ltd. Partnership v. Boatmen's First Nat'l Bank of ____________________________ _____________________________
    Kansas City, 69 F.3d 1398, 1402 (8th Cir. 1995) and Murphy v. ___________ ___ ______
    FDIC, 61 F.3d 34, 38 (D.C. Cir. 1995) (holding that O'Melveny ____ _________
    & Myers leaves no room for common law D'Oench doctrine) with _______ _______ ____
    MotorCity of Jacksonville v. Southeast Bank N.A., 83 F.3d __________________________ ____________________
    1317, 1327-28 (11th Cir. 1996). This court has not yet

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    is payable to an identified person, negotiation requires

    transfer of possession of the instrument and its indorsement

    by the holder.");6 see also Calaska Partners Ltd. v. Corson, ________ _____________________ ______

    672 A.2d 1099, 1104 (Me. 1996) (holding that holder in due

    course status is not conferred when financial instruments are

    transferred in bulk to the FDIC).

    Not being a holder, the FDIC had to show, as a

    prerequisite to enforcing the Note against the Houdes, that

    it was a transferee in possession entitled to the rights of a

    holder. See 11 M.R.S.A. 3-1203. Comment 2 following 3- ___

    1203 provides:

    If the transferee is not a holder because
    the transferor did not indorse, the
    transferee is nevertheless a person
    entitled to enforce the instrument . . .
    if the transferor was a holder at the
    time of transfer. . . . Because the
    transferee is not a holder, there is no
    presumption . . . that the transferee, by
    producing the instrument, is entitled to
    payment. The instrument, by its terms,
    is not payable to the transferee and the
    transferee must account for possession of
    the unindorsed instrument by proving the
    transaction through which the transferee
    acquired it. Proof of a transfer to the __________________________

    ____________________

    expressed an opinion as to the effect of O'Melveny & Myers on _________________
    the doctrine.
    In any event, the present case does not present a
    situation for which the doctrine was created. The federal
    holder in due course doctrine is designed to protect the FDIC
    from claims unascertainable from the books of the failed
    institution, a purpose unrelated to the present.


    6. The term "negotiation" is similarly defined in the pre-
    1993 statute, 11 M.R.S.A. 3-202 (repealed in 1993).

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    transferee by a holder is proof that the _________________________________________
    transferee has acquired the rights of a _________________________________________
    holder. At that point the transferee is _______
    entitled to the presumption . . . .

    (emphasis added).7 Thus, in order minimally to be entitled

    to the presumption under Maine law that it could enforce the

    Note, the FDIC was required (1) to prove a sufficient

    transfer from a holder (here MNB, to which the Note was made

    payable by the Houdes) to the FDIC in its present capacity as

    receiver of NMNB, and (2) to produce the Note at trial.



    2. The Evidence At Trial 2. The Evidence At Trial

    The FDIC brought this action in its capacity as

    receiver for NMNB. The NMNB was allegedly a bridge bank set

    up pursuant to 12 U.S.C. 1821(n) by the FDIC following the

    failure of MNB. The FDIC produced the Note at trial, and the

    parties stipulated that the signatures were authentic and

    ____________________

    7. The result would not be different under the pre-1993
    version of the Maine Uniform Commercial Code which provided:

    [T]he transferee without indorsement of
    an order instrument is not a holder and
    so is not aided by the presumption that
    he is entitled to recover on the
    instrument . . . . The terms of the
    obligation do not run to him, and he must
    account for his possession of the
    unindorsed paper by proving the
    transaction through which he acquired it.
    Proof of a transfer to him by a holder is _________________________________________
    proof that he has acquired the rights of _________________________________________
    a holder and that he is entitled to the _________________________________________
    presumption. ___________

    11 M.R.S.A. 3-201, Comment 8 (repealed in 1993).

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    that the instrument the FDIC possessed was the original.

    What remained, therefore, was for the FDIC to establish a

    proper transfer of the Note to it in its suing capacity

    (receiver of NMNB) from the Note's holder, MNB.

    The first step in this transfer could rather easily

    have been established given the provisions of FIRREA. A

    transfer of all the holder's (MNB's) rights in the Note to

    the FDIC as receiver for MNB could be demonstrated simply by

    showing that the FDIC became the receiver of MNB. Once a

    receivership of a failed bank takes place, the transfer of

    the failed bank's assets to the FDIC occurs by operation of

    law -- the FDIC as receiver of a failed institution

    succeeding under federal law to:

    (i) all rights, titles, powers, and
    privileges of the insured depository
    institution, . . .

    (ii) title to the books, records, and
    assets of any previous conservator or
    other legal custodian of such
    institution.

    12 U.S.C. 1821(d)(2)(A).

    The most serious problem in the instant case is

    what additional proof is needed to prove that enforceable

    title to the Note was transmitted to the FDIC in its

    subsequent and present capacity as receiver of the bridge ________________________

    bank, NMNB. Under the Maine negotiable instruments law, ___________

    there has to be "[p]roof of a transfer to the transferee by a

    holder" of the Note, establishing "proof that the transferee


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    [i.e., the FDIC as receiver of NMNB] has acquired the rights

    of a holder [MNB]." 11 M.R.S.A. 3-1203, Comment 2, supra. _____

    As stated above, if the FDIC were suing in the capacity of

    receiver of MNB, nothing more would be required than a

    showing of such receivership, coupled with a production of

    the Note, for the FDIC to become entitled to the presumption

    that it was entitled to payment. But the FDIC is suing as

    receiver of a different entity, NMNB. There is no automatic

    transfer provided by federal law of the assets of the FDIC as

    receiver of a failed bank to a bridge bank, nor is there an

    automatic transfer from a bridge bank back to the FDIC upon

    the termination of the bridge bank. See 12 U.S.C. 1821(n). ___

    A key question, therefore, is whether the record

    below properly established the formation of NMNB, the

    transfer of the Note to NMNB, the demise of NMNB and the

    appointment of the FDIC as its receiver, and the transfer of

    the Note from NMNB to the FDIC as receiver of that entity.

    The FDIC relied on the testimony of its witness, Golden, to

    show this. Golden testified, among other things, to the

    FDIC's receivership of MNB, the creation of NMNB, the

    subsequent dissolution of NMNB, and the Note's transfer to

    the FDIC as NMNB's receiver. The court, however, struck

    Golden's testimony. We agree with the court that Golden,

    having taken over the Houde file only two weeks before trial

    and not claiming direct personal knowledge of these events,



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    could not testify to them over objection. See Fed. R. Evid. ___

    602 ("A witness may not testify to a matter unless evidence

    is introduced sufficient to support a finding that the

    witness has personal knowledge of the matter.") Although, as

    custodian of the Houde file, his testimony might well have

    been sufficient to authenticate business records, admissible

    under an exception to the hearsay rule, that may have proved

    the underlying transactions, see Fed. R. Evid. 803(6), the ___

    FDIC did not have any of the underlying documents with it at

    trial. Nor was the FDIC prepared to offer public records

    such as might establish the appointment of the FDIC as

    receiver of MNB and NMNB respectively. See Fed. R. Evid. ___

    803(8), 901(b)(7) (indicating that public records are

    admissible as an exception to the hearsay rule and generally

    self-authenticating). Thus, the FDIC was without admissible

    evidence of its ownership of the Note. The FDIC conceded

    that it was unprepared at the time to present alternative

    evidence after Golden's testimony was struck, although it

    said it could obtain the relevant evidence if the court would

    grant a brief continuance. Without such a foundation, the

    court declined to permit the Note to be received into

    evidence. Without the Note in evidence, the FDIC felt that

    it could not proceed.8

    ____________________

    8. After a lengthy discussion in which the court indicated
    that there was insufficient evidence of foundation to allow
    the Note into evidence and that even if the FDIC were to

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    Attempting to justify the lack of admissible

    foundation evidence, the FDIC now argues that because the

    Note was never indorsed and never made payable to anyone

    other than MNB, it plainly could not have been sold to a

    third party by the FDIC or the bridge bank. But while the

    absence of an indorsement on the Note strengthens the

    argument that no one acquired a title superior to that of the

    FDIC, it does not by itself meet the FDIC's burden to

    "account for possession of the unindorsed instrument by

    proving the transaction through which the transferee acquired

    it." 11 M.R.S.A. 3-1203, Comment 2, supra. _____

    We note that the Houdes, in their Statement of

    Undisputed Material Facts submitted to the district court in

    conjunction with their earlier summary judgment motion,

    conceded that the FDIC was appointed receiver for MNB, that

    the FDIC created NMNB, that the FDIC appointed itself the

    ____________________

    provide additional documentation and witnesses to lay the
    proper foundation, it would be in violation of the court's
    Final Pretrial Order, the court declined to grant a
    continuance. The following colloquy then took place:

    [FDIC's Counsel]: Then, your Honor, we have no further
    witnesses.

    THE COURT: I take it the Plaintiff rest [sic] at
    this time?

    [FDIC's Counsel]: Yeah.

    THE COURT: Does the defendant rest?

    [Houdes' Counsel]: Defendant rest [sic] on the complaint and
    moves for directed verdict.

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    receiver of NMNB, and that "[i]t was through these various

    transactions that the FDIC acquired the Note . . . at issue

    in this action." The Houdes' subsequent facile recanting of

    this admission might arguably be the sort of "fast and loose"

    play which leads a court to impose judicial estoppel. See ___

    Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, _____________________ ____________________

    212 (1st Cir. 1987). However, the FDIC made no effort during

    the trial to offer the Houdes' Statement in evidence in order

    to establish its own ownership of the Note, nor did it make

    an estoppel argument.9 In a case such as this with well over

    a hundred docket entries, the district court can scarcely be

    expected to recall, sua sponte, a fact listed in one document

    submitted by the Houdes to the court. Moreover, although the

    FDIC mentions the Houdes' admission in its appellate brief,

    it does not make a "judicial estoppel" argument, or indeed

    any other coordinated argument, as to why the admission

    should, at this late date, be binding on the Houdes. See ___

    United States v. Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir. _____________ ______________

    1995) (stating that "issues adverted to in a perfunctory


    ____________________

    9. The FDIC did indicate to the court, several hours after
    the court directed the verdict for the Houdes, that it would
    file a motion for reconsideration of the verdict because
    "there were judicial binding admissions" submitted by the
    Houdes. The district judge indicated that he would not
    reconsider the decision because the FDIC should have been
    prepared to argue that point at trial. The FDIC did not
    submit a motion for reconsideration. Moreover, the FDIC
    makes no argument on appeal that the district court's refusal
    to reconsider was an abuse of discretion.

    -18-













    manner, unaccompanied by some effort at developed

    argumentation, are deemed waived") (internal quotations

    omitted). Given the FDIC's failure to raise the matter in a

    timely fashion before the district court and to argue the

    matter on appeal, we regard it as having been waived.

    The FDIC also argues that this court should now

    take judicial notice of the failure of MNB and the taking

    over of its assets by the FDIC. This point was also not made

    at trial below, the district court never being asked to take

    judicial notice of these facts. It is true that the

    appointment of the FDIC as receiver of MNB was previously

    announced and relied upon as a matter of fact in two

    published opinions of this court issued prior to the district

    court proceeding under review, as well as in several prior

    opinions of the District of Maine, including opinions issued

    by the very judge who presided over the present trial.10


    ____________________

    10. See, e.g., United States v. Fleet Bank of Maine, 24 F.3d ___ ____ _____________ ___________________
    320, 322 (1st Cir. 1994) (reviewing a decision of the
    district court judge who decided the present case, the Court
    of Appeals stated: "In January 1991, the Maine National Bank
    . . . was declared insolvent and the Federal Deposit
    Insurance Corporation . . . was appointed its receiver.");
    Bateman v. FDIC, 970 F.2d 924, 926 (1st Cir. 1992) (reviewing _______ ____
    a decision of the district court judge who decided the
    present case, Court of Appeals stated: "[I]n January 1991,
    the federal Comptroller of the Currency declared the [Maine
    National] Bank insolvent and appointed the FDIC as
    receiver."); Mill Invs. v. Brooks Woolen Co., 797 F. Supp. ___________ __________________
    49, 50 (D. Me. 1992) (acknowledgement of same district court
    judge that FDIC was appointed receiver of MNB); Cardente v. ________
    Fleet Bank of Maine, 796 F. Supp. 603, 606 n.1 (D. Me. 1992) ____________________
    (same).

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    Nonetheless, the FDIC's judicial notice argument fails for

    several reasons. First, even assuming a court could take

    judicial notice of the failure of the MNB, no party in this

    case requested the court to take such action. While the

    district court might well have taken judicial notice of these

    well-known facts sua sponte, it was not required to do so

    unless requested. See Fed. R. Evid. 201(c),(d). Second, ___

    even assuming the district court, or this court on appeal,

    did take judicial notice of the failure of the MNB, the

    appointment of the FDIC as its receiver, and perhaps even the

    creation of the bridge bank, these facts would not relieve

    the FDIC from its burden of showing a transfer of the Note

    from the bridge bank to the FDIC as receiver for that

    institution. These are not matters for judicial notice.

    We conclude, therefore, with some regret, that

    there was no error in the district court's ruling that, on

    the record as it stood, the FDIC had failed to meet its legal

    burden. We hold that the record justified the dismissal of

    the case as matter of law on the narrow but dispositive

    ground declared by the district court.



    3. The Denial of the FDIC's Requested Continuance 3. The Denial of the FDIC's Requested Continuance

    The FDIC argues that even assuming the FDIC as

    receiver of NMNB failed to make out a prima facie case

    showing the transactions by which it acquired the Note, the



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    court's refusal to grant the FDIC a continuance during which

    it could procure the necessary records and other evidence

    constituted an abuse of discretion. We review the district

    court's refusal to grant a continuance solely for an abuse of

    discretion. See United States v. Neal, 36 F.3d 1190, 1205 ___ _____________ ____

    (1st Cir. 1994).

    Counsel for the FDIC first asked for a two-hour

    break and then asked, at 10:30 a.m., that the case be

    continued until the next day. The district judge indicated

    that he was not willing to recess the case because "[t]his

    case should have been prepared weeks ago." In addition, the

    judge noted that even if he did allow the continuance, any

    documents or testimony the FDIC produced would not be

    admissible, over objection, because it would violate the

    court's Final Pretrial Order, which required a designation of

    all exhibits and witnesses and a description of the

    witnesses' testimony. The judge stated:

    I am not going to continue this case, . .
    . to do so means opening the entire case
    up, probably discharging this jury so
    that new procedures, pretrial procedures
    about these documents can be carried out
    in accordance with the prior order of the
    court. It would make a complete mockery
    of the systematic pretrial preparation of
    cases and the elaborate procedure that
    the Court has in place to see that these
    cases are properly tried.

    When reviewing a district court's decision to deny

    a continuance, broad discretion must be granted and only



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    "unreasonable and arbitrary insistence upon expeditiousness

    in the face of a justifiable request for delay" will

    necessitate reversal. United States v. Rodriguez Cortes, 949 _____________ ________________

    F.2d 532, 545 (1st Cir. 1991) (citing United States v. ______________

    Torres, 793 F.2d 436, 440 (1st Cir.), cert. denied, 479 U.S. ______ ____________

    889 (1986)); see also Morris v. Slappy, 461 U.S. 1, 11 _________ ______ ______

    (1983). In determining whether a denial of a continuance

    constitutes an abuse of discretion, the court must consider

    the particular facts and circumstances of each case. See ___

    Torres, 793 F.2d at 440. The court should consider the ______

    reasons in support of the request, the amount of time

    requested, whether the movant has contributed to his

    predicament, the inconvenience to the court, the witnesses,

    the jury and the opposing party, and the likelihood of

    injustice or unfair prejudice attributable to the denial of a

    continuance. See United States v. Saccoccia, 58 F.3d 754, ___ ______________ _________

    770 (1st Cir. 1995), cert. denied, 116 S. Ct. 1322 (1996). ____________

    The FDIC argues that the district court's refusal

    to grant a continuance led to injustice and unfair prejudice.

    It contends that the time needed to gather the necessary

    evidence would not have greatly inconvenienced the court, the

    jury or the Houdes, and that some of the documents would have

    been self-authenticating records admissible in court. This

    may be so, but it overlooks a number of factors pointing in

    the other direction, among them the presence of the jury and



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    the court's reasonable expectation that the FDIC would be

    prepared for trial. The FDIC contends that it was

    "surprised" that it had to put forth admissible evidence

    concerning its ownership of the Note. However, we see no

    reason for the FDIC to have been surprised. The Houdes had

    challenged the ability of the FDIC to enforce the Note as an

    affirmative defense in their answer and had later objected to

    the FDIC's motion, which the court denied, to preclude them

    from challenging the FDIC's standing to enforce the Note.

    The FDIC was plainly on notice that it was dealing with

    adversaries who refused to take a relaxed "common sense"

    approach on these technical but nonetheless requisite

    preliminaries. Indeed, the FDIC showed that it understood

    its burden by calling Golden and questioning him on the

    matters it did. Unfortunately, it seems not to have

    recognized the hearsay problem inherent in Golden's

    testimony, nor to have taken the trouble to have with it the

    necessary supporting documents.

    The court was entitled to expect the FDIC to have

    special competence in actions such as this. This suit had

    been commenced ten months earlier and, as said, the FDIC knew

    the Houdes would challenge its standing to enforce the Note.

    It was the FDIC's failure to have prepared its case for trial

    that led to the request for a continuance. While the court's

    action was strict, and we can imagine some judges who would



    -23-













    have assessed the situation more charitably to the FDIC, we

    cannot say that it abused its discretion in not giving the

    FDIC additional time to remedy its lack of preparation. See, ___

    e.g., Rodriguez Cortes, 949 F.2d at 545 (holding that ____ _________________

    district court did not abuse its discretion in denying motion

    for continuance in order to obtain witness to testify that

    time indicated on hotel registration card was incorrect when

    defendant had been in possession of the time card for six

    months and had ample time to obtain a witness). Given the

    costs of trials, especially before juries, and the adverse

    effects of delay in one case on other litigants seeking

    trials, judges must be allowed a considerable discretion in

    these matters. We find no abuse here.



    III. III.

    Because we find that the district court properly

    directed a verdict in favor of the Houdes and acted within

    its discretion in denying the FDIC's request for a

    continuance, we need not reach the issues raised in the

    Houdes' cross-appeal.



    Affirmed. Affirmed. _________









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