[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________





        No. 97-1117





                      JAMES E. COFIELD, JR. AND JUAN M. COFIELD,



                               Plaintiffs, Appellants,



                                          v.



                        FEDERAL NATIONAL MORTGAGE ASSOCIATION,



                                 Defendant, Appellee.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Patti B. Saris, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            Edwin  A. McCabe,  Philip Y. Brown  and McCabe Brown  on brief for
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        appellants.

            James  C.  Heigham  and  Choate,  Hall  &  Stewart  on  brief  for
            __________________       _________________________

        appellee.





                                 ____________________



                                   August 25, 1997

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                      Per  Curiam.  We have carefully reviewed the record
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            and  read the  briefs  on  appeal.   We  affirm the  district



            court's judgment dismissing the complaint of  appellant James



            E. Cofield for essentially the  reasons stated in the court's



            Memorandum and Order, dated October 31, 1996.  See Local Rule
                                                           ___



            27.1.  We add only two comments.



                      1.   Statute of  Limitations.   We assume,  without
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            deciding, that  appellant argued  below that  Fannie Mae  had



            perpetrated  a fraud on  the bankruptcy court.   Nonetheless,



            the claim cannot  succeed.  Simply, appellant may  not pursue



            the fraud claim  now, either via motion or  in an independent



            action, because  he could have litigated it  in the adversary



            proceeding.  That is, from  the undisputed facts, it is plain



            that appellant knew of Fannie Mae's alleged fraud  before the



            adversary proceeding was  dismissed.  As we pointed  out in a



            recent case, Fed. R. Civ. P. 60(b) does not permit a party to



            relitigate, in  an independent  action or  by motion,  issues



            that  the party  had a  fair opportunity  to litigate  in the



            former  action.   See Geo.  P. Reintjes  Co. v.  Riley Stoker
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            Corp., 71 F.3d  44, 49 (1st  Cir. 1995) (citing  7 J.  Moore,
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            Moore's Federal  Practice    60.37  (1995)).   At the  least,
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            appellant  could have filed  a motion for  reconsideration of



            the order of dismissal.



                      2.  Malicious Prosecution.  Appellant's reliance on
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            comment  j to    674  of  the Restatement  (Second) of  Torts
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            (1977) does  not  help him.    That comment  emphasizes  that



            "[w]hether a withdrawal or an abandonment constitutes a final



            termination of the  case in favor of the  person against whom



            the  proceedings  are   brought  .  .  .   depends  upon  the
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            circumstances  under which  the  proceedings are  withdrawn."
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            Id. cmt. j  (emphasis added).  The  circumstances surrounding
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            Fannie   Mae's  decision  to  let  the  bankruptcy  order  of



            dismissal  stand,  even  assuming such  decision  amounts  to



            abandonment, establish that, as the district court found, the



            adversary proceeding,  in  relation to  Fannie  Mae's  claims



            against appellant, did not terminate in either party's favor.



                      We therefore summarily  affirm the judgment  of the
                                              ______



            district  court and, as  per counsel's representation  in the



            reply brief, withdraw the appeal of Juan M. Cofield.



















































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