MCCLURE v. FRANCHISE TAX BOARD (2020)

MEMORANDUM **

David Gregory McClure appeals pro se from the district court's judgment affirming the bankruptcy court's summary judgment in his adversary proceeding. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court's decision in an appeal from the bankruptcy court, and apply the same standard of review the district court applied to the bankruptcy court's decision. Northbay Wellness Grp., Inc. v. Beyries, 789 F.3d 956, 959 (9th Cir. 2015). We affirm.

The bankruptcy court properly granted summary judgment because McClure failed to raise a genuine dispute of material fact as to whether his tax debt was discharged by the bankruptcy court. See 11 U.S.C. § 523(a)(1)(B)(ii) (a discharge of debts under 11 U.S.C. § 1328 does not include tax debts “filed or given after the date on which such return, report, or notice was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition”). Contrary to McClure's contention, res judicata does not preclude the Tax Board from collecting the debt. The Tax Board was not on notice that the debt was going to be discharged. See In re Enewally, 368 F.3d 1165, 1173 (9th Cir. 2004) (“Although confirmed plans are res judicata to issues therein, the confirmed plan has no preclusive effect on issues that ․ were not sufficiently evidenced in a plan to provide adequate notice to the creditor.”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.