                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 91-3433
                         _____________________


          B.R. EUBANKS, M.D. and
          BONNIE B. EUBANKS,

                                 Plaintiffs-Appellants,

          v.

          FEDERAL DEPOSIT INSURANCE CORPORATION
          as Receiver for FIRST CITY BANK,
          New Orleans, Louisiana and
          FIRST NATIONAL BANK OF JEFFERSON,

                                 Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
_________________________________________________________________
                     (August 20, 1992)

Before BROWN, KING and WIENER, Circuit Judges.

KING, Circuit Judge:

     Dr. and Mrs. B.R. Eubanks appeal from a judgment of the

district court granting summary judgment in favor of First City

Bank ("First City") and First National Bank of Jefferson ("FNJ")

(collectively, the "Banks") on grounds of res judicata and

judicial estoppel.     We affirm the judgment below on the ground of

res judicata.

                  I.   FACTS AND PROCEDURAL HISTORY

     In 1983, Dr. Eubanks invested in a partnership in commendam

that was to convert an apartment building in New Orleans into
condominium units (the "Project").    First City made a loan to Dr.

Eubanks and the other partners to purchase and convert the units.

Shortly thereafter, the Project failed and First City brought

suit against Dr. Eubanks and others in state court.    The state

court proceeding resulted in a foreclosure sale, at which First

City acquired ownership of the Project.

      In September 1985, Dr. Eubanks purchased the Project from

First City for the balance due on the debt and received an

assignment of First City's deficiency judgment rights against Dr.

Eubanks' co-obligors on the debt.    The Project subsequently

failed again, and in August 1986, Dr. Eubanks and his wife filed

a petition for bankruptcy under chapter 11 of the Bankruptcy

Code.

      The Eubankses' Fourth Amended Plan (the "Plan"), filed July

14, 1989, was confirmed by the bankruptcy court on February 15,

1990, and the bankruptcy court's confirmation order was affirmed

by the district court on August 28, 1990.    On February 12, 1990,

three days prior to confirmation of the Plan, Dr. Eubanks filed

suit in federal district court against First City, alleging

lender liability and violation of the Racketeer Influenced

Corrupt Organization Act ("RICO").    Dr. Eubanks later voluntarily

dismissed that suit pursuant to Federal Rule of Civil Procedure

41.   On August 21, 1990, six months after confirmation of the

Plan, the Eubankses filed in bankruptcy court an objection to the

claim of First City, citing the complaint in the dismissed suit

as the basis of the objection.


                                 2
     The Eubankses then filed the instant action in Louisiana

state court, adding FNJ as a co-defendant.     We address the

allegations in the state complaint in some detail.    First, the

Eubankses claimed that there was a substantial identity of

management and ownership of both banks.   Dr. Eubanks was

approached by an officer of First City who proposed that Dr.

Eubanks purchase an interest in the Project.    According to

Eubanks, the officer represented to him, "with the knowledge,

consent and approval of the executive officers of both First City

and FNJ," that the Project was a sound investment, that it would

be conceptualized, implemented, and partially financed by general

partners, other First City and FNJ customers, who had

considerable expertise in condominium conversion, that financing

would be provided by First City and/or FNJ, and that the Banks

held considerable security for the various loans involved in

financing the Project.   Eubanks also claimed that the officer

informed him that his involvement in the Project was primarily

"window dressing" for the federal banking regulators, and that

unless he participated, the Project would not go forward.       Based

upon these representations, claimed Eubanks, he agreed to

participate in the Project as one of the general partners and

thus become fully liable for the parnership debt to First City.

     After signing the promissory note to fund the Project,

Eubanks became aware that the situation was not as represented.

He alleged that First City, prior to his involvement in the

Project, had already committed to provide funds for the Project


                                 3
regardless of Eubanks' participation, and that the other general

partners, represented by First City and FNJ to be experts, were

neither experienced with condominium conversion nor in

financially sound condition.   Further, Eubanks learned that funds

that should have been expended on the Project were being diverted

into other condominium projects by the general partners, and that

First City had mortgages on all of these other projects.   Eubanks

also learned that First City did not have the security interests

in the property it claimed prior to obtaining his signature, and

that "the only real security for the repayment of the loan

obligation to First City was the personal obligation and

guarantee of Eubanks."   Based upon these alleged

misrepresentations, the Eubankses claimed that First City and FNJ

violated the Louisiana Blue Sky Law, La. Rev. Stat. 51:701, et

seq., breached their fiduciary duties toward him, committed

fraud, and breached the loan contract.

     The Banks removed this action on December 14, 1990, alleging

removal jurisdiction under 28 U.S.C. §§ 1452(a) and 1441(b).1

The district court subsequently dismissed the Eubankses' claims

against the Banks, reasoning that the Eubankses knew of the

claims prior to the bankrupcty proceeding, and should have

addressed their claims against First City and FNJ in their



     1
       On February 6, 1991, the Banks filed a complaint in
federal district court seeking a declaration that the Eubankses
were barred from proceeding with the instant action based upon
the order confirming their Plan. The record is unclear as to the
disposition of this action.

                                 4
disclosure statements and in the Plan.2    Based upon their failure

to bring the claims in the bankruptcy court, the district court

held that the Eubankses were barred by the doctrines of res

judicata and judicial estoppel from raising the claims in the

instant case.   The Eubankses now appeal the district court's

dismissal of their action against the Banks.

                          II. DISCUSSION

     The Eubankses contend that the district court improperly

applied the doctrine of res judicata to their claims against the

Banks.   Application of the doctrine is proper only if the


     2
       Section 521(1) of the Bankruptcy Code requires the debtor
to "file a . . . schedule of assets and liabilities . . . and a
statement of the debtor's financial affairs . . . ." The debtor
is also required, pursuant to Bankruptcy Rule 1007(b)(1), Form
No. 6, Schedule B-2, to disclose contingent and unliquidated
claims "of every nature, including counterclaims of the debtor."
Section 1125(b) mandates the filing of a "written disclosure
statement approved, after notice and a hearing, by the court as
containing adequate information." "Adequate information" is
defined as

     information of a kind, and in sufficient detail, as far
     as is reasonably practicable in light of the nature and
     history of the debtor and the condition of the debtor's
     books and records, that would enable a hypothetical
     reasonable investor typical of holders of claims or
     interests of the relevant class to make an informed
     judgment about the plan . . . .

11 U.S.C. § 1125(a)(1); see also Sure-Snap Corp. v. State Street
Bank & Trust, 948 F.2d 869, 873 (2d Cir. 1991). A determination
as to the adequacy of the contents of a disclosure statement
necessarily depends upon the facts and circumstances of each
case. See Oneida Motor Freight, Inc. v. United Jersey Bank, 848
F.2d 414, 417 (3d Cir.), cert. denied, 488 U.S. 967 (1988); 5
Collier on Bankruptcy ¶ 1125.03[1] (15th ed. 1992). Adequate
information may include the disclosure of any litigation likely
to arise in a non-bankruptcy context. See Oneida, 848 F.2d at
417; Monroe County Oil Co. v. Amoco Oil Co., 75 B.R. 158 (S.D.
Ind. 1987).

                                 5
following four requirements are met: (1) the parties must be

identical in the two actions; (2) the prior judgment must have

been rendered by a court of competent jurisdiction; (3) there

must be a final judgment on the merits; and (4) the same cause of

action must be involved in both cases.   See Nilsen v. City of

Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (en banc); Russell

v. SunAmerica Securities, Inc., 962 F.2d 1169 (5th Cir. 1992);

Meza v. General Battery Corp., 908 F.2d 1262, 1265 (5th Cir.

1990).   This four-part test has been applied in the bankruptcy

context of an order confirming a plan of reorganization.     See

Howe v. Vaughn, 913 F.2d 1138, 1143 (5th Cir. 1990); Republic

Supply Co. v. Shoaf, 815 F.2d 1046, 1053 (5th Cir. 1987).

     The first element of this test is clearly satisfied here.

While the Eubankses argue that the addition of Mrs. Eubanks

changes the parties, Mrs. Eubanks' claims against the Banks

derive exclusively from Dr. Eubanks' loan transactions with the

Banks.   As such, Mrs. Eubanks' addition as a plaintiff does not

alter the identity of the parties.   As to the second element, the

Eubankses do not dispute the jurisdiction of the bankruptcy court

which oversaw their estate and confirmed the Plan.

     The Eubankses contest the third element -- that there must

be a final judgment on the merits in the previous case -- arguing

that there has never been a final judgment.   We disagree.   It has

long been recognized that a bankruptcy court's order confirming a

plan of reorganization is given the same effect as a district

court's judgment on the merits for claim preclusion purposes.


                                 6
See Stoll v. Gottlieb, 305 U.S. 165, 170-71 (1938); Miller v.

Meinhard-Commercial Corp., 462 F.2d 358, 360 (5th Cir. 1972)

("[a]n arrangement confirmed by a bankruptcy court has the effect

of a judgment rendered by a district court") (citing In re

Constructors of Florida, Inc., 349 F.2d 595, 599 (5th Cir. 1965),

cert. denied sub nom. Coral Gables First Nat'l Bank v. American

Surety Co., 383 U.S. 912 (1966)); In re Justice Oaks II, Ltd.,

898 F.2d 1544, 1550 (11th Cir.), cert. denied, 111 S. Ct. 387

(1990); see also Shoaf, 815 F.2d at 1053.   Section 1141(a) of the

Bankruptcy Code clearly provides that all parties to a confirmed

plan are bound by its terms:

     (a) . . . [T]he provisions of a confirmed plan bind the
     debtor . . . and any creditor, . . . whether or not the
     claim or interest of such creditor . . . is impaired
     under the plan and whether or not such creditor . . .
     has accepted the plan.

11 U.S.C. § 1141(a).   One commentator has explained the res

judicata consequences of § 1141(a) as follows:

     Section 1141(a) of the Code has the same effect as
     Sections 224(1), 367(1) and 473(1) of the Bankruptcy
     Act in that a plan is binding upon all parties once it
     is confirmed and all questions which could have been
     raised pertaining to such plan are res judicata. While
     section 1141(a) is more narrowly drafted than the
     correlative sections of the Bankruptcy Act, the effect
     is the same. Subject to compliance with the
     requirements of due process under the Fifth Amendment,
     a confirmed plan of reorganization is binding upon
     every entity that holds a claim or interest even though
     a holder of a claim or interest is not scheduled, has
     not filed a claim, does not receive a distribution
     under the plan, or is not entitled to retain an
     interest under such plan.

5 Collier on Bankruptcy ¶ 1141.01[1] (15th ed. 1992) (footnotes

omitted); see J. Stephen Gilbert, "Substantive Consolidation in


                                 7
Bankruptcy:   A Primer," 43 Vand. L. Rev. 207, 239 (1990) ("Like

final judgments, confirmed plans of reorganization are binding on

all parties, and issues that could have been raised pertaining to

such plans are barred by res judicata.").3   There is little doubt

that the bankruptcy court's confirmation order is binding and

final, and we accord it the weight of a final judgment for res

judicata purposes.

     Finally, the Eubankses argue that there is no identity of

claims.   To determine whether the same claim is involved in two

actions, we apply the transactional test of the Restatement

(Second) of Torts § 24.   Ocean Drilling & Exploration Co. v. Mont

Boat Rental Servs., Inc., 799 F.2d 213, 217 (5th Cir. 1986);

Southmark Properties v. Charles House Corp., 742 F.2d 862, 869

(5th Cir. 1984) (where court approved agreement and settlement

that a mortgagee could purchase the sole asset of a corporation

in reorganization proceedings for the unpaid balance on its

claim, res judicata barred a subsequent action arising from same

transaction, in which debtor asserted that mortgagee had acted

improperly in acquiring title to the asset); see also Lane v.

Peterson, 899 F.2d 737, 742-44 (8th Cir.) (adopting transactional

test), cert. denied, 111 S.Ct. 74 (1990); In re Energy Co-op, 814

F.2d 1226, 1230-31 (7th Cir.) (same), cert. denied, 484 U.S. 928

(1987).   Under this approach, the critical issue is whether the

     3
       Section 1141(a) does not act as a bar to claims that arise
after confirmation of the plan. See 5 Collier on Bankruptcy ¶
1141.01[1] (15th ed. 1992). Here, the Banks allege, and the
Eubankses concede, that the instant claims arose prior to
confirmation of the Plan.

                                 8
two actions were based on the "same nucleus of operative facts."

Howe, 913 F.2d at 1144-45; In re Air Crash at Dallas/Ft. Worth

Airport, 861 F.2d 814, 816 (5th Cir.1988).   In this inquiry, we

look to the factual predicate of the claims asserted, not the

legal theories upon which the plaintiff relies.    See Nilsen, 701

F.2d at 564 ("a judgment on the merits operates as a bar to the

later suit, even though a different legal theory of recovery is

advanced in the second suit"); see also Alexander v. Chicago Park

Dist., 773 F.2d 850, 854 (7th Cir.) ("mere change in legal theory

does not create a new cause of action" for res judicata

purposes), cert. denied, 475 U.S. 1095 (1985); In re Hoffman, 99

B.R. 929, 937 (N.D. Iowa 1989); In re Galerie des Monnaies of

Geneva, Ltd., 55 B.R. 253, 257 (Bankr. S.D.N.Y. 1985), aff'd, 62

B.R. 224 (S.D.N.Y. 1986).

     We agree with the district court that the claims in the

instant case are identical.   In a case quite similar to the one

at bar, the Second Circuit recently found an identity of claims

between a confirmation order and a later lender liability action

based upon conduct which allegedly contributed to the bankruptcy.

In Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869

(2d Cir. 1991), two banks agreed to finance the debtor, Sure-

Snap, and in return took a mortgage on the owner's real estate

and a security interest in the equipment.    Though Sure-Snap was

not in default, the banks subsequently terminated the loan, and

Sure-Snap filed for protection under chapter 11.   A disclosure

statement filed on behalf of Sure-Snap faulted one of the banks


                                 9
for forcing it into bankruptcy.     This mention of the bank's fault

was later omitted at the request of the bank.     Prior to the

confirmation hearing, the debtor-in-possession initiated an

adversary proceeding against the banks, challenging the validity

of the liens on grounds that did not involve any lender

liability.     The validity of the liens was upheld and the plan was

later confirmed over the banks' objections.     At the time of the

confirmation hearing, no lender liability claims were alleged

against either bank, although records which were later discovered

indicated that the debtor-in-possession was well-aware of

potential claims prior to confirmation.     One year after

confirmation, the debtor brought the lender liability claims in

federal district court.

       The district court held that the claims were barred by res

judicata, and the court of appeals affirmed.     Id. at 877.     In

addressing whether the case before it presented an identity of

claims, the court referred to the adversary proceeding regarding

the validity of the liens, but found it to be of little relevance

to its res judicata analysis, noting that the narrowly drawn

adversary proceeding "was not of the scope that would have

precluded the bringing of the lender liability action."        Id. at

874.    Rather, the confirmed plan, and not the adversary

proceeding, was the prior determination that precluded the later

suit.    Id.   According to the Second Circuit, "[t]he formal

bankruptcy hearing, confirming as it did Sure-Snap's plan for

reorganization and schedule of repayment, did necessitate


                                  10
preclusion of the lender liability action, as the claims

premising Sure-Snaps petition for reorganization, and those

alleging predatory banking practices, were integrally related."

Id.   "[I]t is evident," continued the court, "that the focus of

contention and the basis for scheduling in the hearing

encompassed the entire lender-debtor relationship . . .

[including] the early calling of the loan."      Id.   As further

evidence of the inter-relationship of the two proceedings, the

court noted that the debtor admitted in its brief that the banks'

post-loan conduct forced the debtor into bankruptcy: "because the

lender liability claims would be misleading if alleged in a

vacuum -- devoid of the financial atmosphere which prompted Sure-

Snap to file for bankruptcy -- the tortious conduct action should

not be heard separate and apart from the original bankruptcy

proceeding."     Id. at 875.   The court accordingly held that the

claims were identical because, for res judicata purposes, the

same cause of action includes "'all the remedial rights of the

plaintiff against the defendant growing out of the relevant

transaction.'"    Id. (citing Nilsen, 701 F.2d at 560 n.4).

      We note that the loan transaction at the heart of the

instant litigation was also the source of First City's claim

against the Eubankses' estate, a claim which was uncontested and

fully allowed as one of the provisions in the Plan.      As did the

debtor in Sure-Snap, the Eubankses alleged in their petition that

the foreclosure of the Project forced them into bankruptcy.         See

also Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d


                                   11
414, 419 n. 5 (3d Cir.) ("Since it is Oneida's threshold

allegation that the bank's activity in connection with the

lending agreements was the catalyst to Oneida's filing a Chapter

11 petition, we are unpersuaded by Oneida's current position that

the [former and instant] actions represent unrelated events."),

cert. denied, 488 U.S. 967 (1988).    In this case, all of the

Eubankses' claims in this lender liability action are based on

the same transaction that gave rise, in part, to the terms of the

Plan, and the order confirming the Plan was based, in part, on

the transaction at the core of the instant action.    Cf. Justice

Oaks II, 898 F.2d at 1551.    Put another way, the Eubankses'

instant complaint, alleging various counts of lender liability,

puts into issue the same facts which would determine, inter alia,

the treatment and amount of the debt owed to First City.     See In

re Hoffman, 99 B.R. at 937.    Accordingly, there is an identity of

claims between the confirmation proceeding and this lender

liability suit.

     Even where there is an identity of claims, the doctrine of

res judicata does not bar the second action unless the plaintiff

could or should have brought its claim in the former proceeding.

Howe, 913 F.2d at 1145; see Commissioner of Internal Revenue v.

Sunnen, 333 U.S. 591, 597 (1948) ("Under th[e] rules of claim

preclusion, the effect of a judgment extends to the litigation of

all issues relevant to the same claim between the same parties,

whether or not raised at trial."); Cromwell v. County of Sac, 94

U.S. 351, 352 (1876) (res judicata binds parties to a suit "not


                                 12
only as to every matter which was offered and received to sustain

or defeat the claim or demand, but as to any other admissible

matter which might have been offered for that purpose"); Howe,

913 F.2d at 1145 ("The law of this circuit is well-settled that a

plan is binding upon all parties once it is confirmed and all

questions that could have been raised pertaining to such plan are

res judicata.") (emphasis in original); D-I Enterprises, Inc. v.

Commercial State Bank, 864 F.2d 36, 38 (5th Cir. 1989).     As we

stated in Miller v. Meinhard-Commercial Corp., "any attempt by

the parties or those in privity with them to relitigate any of

the matters that were raised or could have been raised therein is

barred under the doctrine res judicata." 462 F.2d at 360

(emphasis added, citations omitted).   It is uncontested that the

Eubankses' lender liability claims were not raised in the

confirmation proceeding.   Our inquiry therefore focuses on

whether the Eubankses could or should have raised the claims in

that proceeding.

     Our recent decision in Howe is instructive as to whether

claims such as those at bar could have been raised in a prior

confirmation proceeding.   913 F.2d 1138.   In Howe, the creditor

bank filed a proof of claim based on two promissory notes secured

by mortgages covering the debtors' house and farm.    In response,

the debtors filed adversary proceedings seeking to invalidate the

mortgages and contending that the interest charged on the loans

was usurious.   Following extensive negotiations, the parties

settled their differences and ironed out a plan.     Five years


                                13
after confirmation of the plan, the debtors brought a lender

liability action against the bank.   The specific lender liability

claims filed post-confirmation were not scheduled as assets of

the estate or disclosed or treated in the plan.   Instead, the

indebtedness to the creditor bank was treated in the plan as an

allowed secured claim, partially secured and partially unsecured.

Id. at 1140-41.

     The bankruptcy court dismissed the lender liability claims

based on res judicata, and the district court affirmed.   The

debtors appealed, arguing that there was no identity of claims

between the treatment of the bank in the plan and the lender

liability claims they currently pursued.   We disagreed, and

affirmed the judgment below.   Id. at 1149.   Res judicata, we

noted, "bars all claims that were or could have been advanced in

support of the cause of action on the occasion of its former

adjudication, . . . not merely those that were adjudicated."     Id.

at 1144 (emphasis in original) (quoting Nilsen, 701 F.2d at 560).

Applying the transactional test, we noted that the loan

transaction at the heart of the new litigation was also the

source of the bank's original claim against the estate.    Id.   As

evidence of whether the debtors could have brought the lender

liability claims in the earlier proceeding, we noted that the

debtors had disclosed and treated the bank in their confirmed

plan, instituted adversary proceedings contesting different

aspects of the loan transaction, and extensively negotiated




                                14
various aspects of the loan with the bank in formulating the

plan.   Id. at 1146.   Accordingly, we held that

     when a confirmed plan discloses and specifically treats
     the creditor's claim, and the debtor has had a full
     opportunity to contest the creditor's claim in an
     adversary proceeding that is, in effect, settled in the
     plan, the debtor cannot collaterally attack the
     bankruptcy court's decision five years later in an
     action based on the same transaction.

Id. at 1147.

     Howe differs from the instant case only by virtue of the

fact that the debtors in Howe instituted pre-confirmation

adversary proceedings against the creditor urging theories of

recovery which were related to those later pursued post-

confirmation.   Here, the Eubankses did not bring any adversary

proceedings against the Banks.    We were careful to note in Howe,

however, that a pre-confirmation adversary proceeding related to

the issue later pursued is not a prerequisite for the application

of res judicata:

     We do not intimate that whether an adversary proceeding
     preceded a confirmation hearing is a litmus test for
     determining whether the action is barred by res
     judicata, nor do we intimate that whether a proceeding
     sought to be given res judicata effect is an adversary
     proceeding or a contested matter is such a litmus test.
     The critical question for res judicata purposes is
     whether the party could or should have asserted the
     claim in the earlier proceeding. Whether the
     proceeding was an adversary proceeding or contested
     matter, however, may be an important factor in
     determining if the claim could or should have been
     effectively litigated in the earlier proceeding. Other
     important factors may include the nexus between the
     plan and the claim being asserted and the amount of
     time that has elapsed since the case commenced.

913 F.2d at 1146 n. 28.    In this vein, the absence of a prior,

related adversary proceeding was not fatal to the application of

                                 15
res judicata in Sure-Snap.    There, the court noted that the

adversary proceeding that was brought prior to confirmation was

not, because of its limited scope, res judicata of the later

lender liability claims.   948 F.2d at 874.   Rather, it was the

confirmed plan itself (which failed to address material lender

liability claims) that precluded the later action.     Id.

     In the instant case, the Eubankses gave First City an

allowed claim as a provision in the Plan.     It is uncontested that

the claims the Eubankses now assert against the Banks were never

listed on a schedule of assets, set forth in a disclosure

statement or, in fact, brought to the attention of the bankruptcy

court at any time.   The Eubankses contend that they failed to

assert their claims or bring them to the attention of the

bankruptcy court because they were unaware of them prior to the

filing of the instant suit.   We find, as did the district court,

that this profession of ignorance is simply false.    The Eubankses

concede in their brief to this court that their claims against

the Banks were discovered "within a matter of days or weeks prior

to the final confirmation of the Chapter 11 plan of

reorganization."   In various affidavits, the Eubankses and their

counsel admit knowing of their claims against the Banks even

earlier, indeed, by late 1989 or early 1990.    In any case, it is

clear that the Eubankses knew of the claims prior to confirmation

of their plan, yet failed to bring the claims, perhaps the most

significant assets of their estate, to the attention of the

bankruptcy court or their creditors as mandated by the Bankruptcy


                                 16
Code and Rules.4   See also Sure-Snap, 948 F.2d at 873 (owners of

debtor company had adequate information about prospective lender

liability claims prior to commencement of confirmation

proceedings, and it was therefore "clear that they could have

brought these actions in the first instance") (emphasis in

original).

     The order confirming the Plan is therefore res judicata of

the instant claims.    Accordingly, we agree with the district

court that the instant claims against the Banks are barred.5

                          III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.



     4
       Certainly, the Eubankses could have alerted the bankruptcy
court to the lender liability claims pursuant to 11 U.S.C. §
1127, which provides, in relevant part, as follows:

     (a) The proponent of a plan may modify such plan at any
     time before confirmation . . . . After the proponent
     of a plan files a modification of such plan with the
     court, the plan as modified becomes the plan.

11 U.S.C. § 1127(a).
     5
       The Eubankses on appeal do not differentiate between First
City and FNJ as regards the application of res judicata except to
point out that the February 12, 1990 district court lawsuit --
filed on the eve of confirmation of the Plan and subsequently
dismissed -- was only against First City. As we have seen,
however, it is not the existence of the dismissed complaint that
triggers the application of res judicata, but instead, the
confirmation of the Plan, the absence of any reference in the
Plan or related disclosure statements to claims against the
Banks, and the allowance in the Plan of First City's claim. We
recognize that there may be distinctions between the two Banks
with regard to the predicate for the invocation of res judicata.
But in the absence of any argument by the Eubankses directed to
those differences, we decline to address them.

                                  17
