                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           AUG 21 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

DAVID K. WALDEN,                                 No. 12-55251

               Appellant,                        D.C. No. 3:09-cv-02564-JLS-POR

  v.
                                                 MEMORANDUM *
GREGORY A. AKERS,

               Appellee,

  And

JOEL ESQUERRA FORRAL,

               Debtor-in-Possession.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                            Submitted August 14, 2013 **

Before:        SCHROEDER, GRABER, and PAEZ, Circuit Judges.

       David K. Walden appeals pro se from the district court’s judgment affirming

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the bankruptcy court’s summary judgment in favor of Chapter 7 trustee Gregory A.

Akers. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the

district court’s decision on an appeal from a bankruptcy court and apply the same

de novo standard of review used by the district court to review the bankruptcy

court’s summary judgment. Suncrest Healthcare Ctr. LLC v. Omega Healthcare

Investors, Inc. (In re Raintree Healthcare Corp.), 431 F.3d 685, 687 (9th Cir.

2005). We affirm.

      The bankruptcy court properly granted summary judgment because Walden

failed to raise a genuine dispute of material fact as to whether the debtor was

insolvent when he made payments to Walden. See 11 U.S.C. § 547(b) (elements of

a preferences claim); Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070,

1076 (9th Cir. 2000) (discussing the insolvency requirement under 11 U.S.C.

§ 547(b)); see also Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th

Cir. 2003) (“Conclusory allegations unsupported by factual data cannot defeat

summary judgment.”). Walden also failed to raise a genuine dispute of material

fact as to whether the payments were made in the ordinary course of business. See

Sigma Micro Corp. v. Healthcentral.com (In re Healthcentral.com), 504 F.3d 775,

789-92 (9th Cir. 2007) (discussing requirements for “ordinary course of business”

exception under 11 U.S.C. § 547(c)(2)); Mordy v. Chemcarb, Inc. (In re Food


                                          2                                       12-55251
Catering & Hous., Inc.), 971 F.2d 396, 398 (9th Cir. 1992) (explaining that

defendant bears burden of proof in establishing “ordinary course of business”

exception).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

       Walden’s request for oral argument, filed on March 9, 2013, is denied.

      AFFIRMED.




                                           3                                      12-55251
