Legal Opinion · Concurrence
Hoskins v. Citigroup, Inc. (In Re Viola)
United States Bankruptcy Appellate Panel for the Ninth Circuit
Decided April 6, 2012No. BAP No. NC-11-1173-DoDH. Bankruptcy No. 10-30904. Adversary No. 10-03103Published
1Concurrence
HOLLOWELL, Bankruptcy Judge,
concurring.
I agree with the majority that Hoskins cannot assert an aiding and abetting claim under § 544(a)(2) because the estate has no claim against the Appellees. The rights of a hypothetical lien creditor are dependent on the rights of its debtor. Smith v. Arthur Andersen LLP, 421 F.3d 989, 1002 (9th Cir.2005) citing Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991). Here, because the deposits at issue were not made by Viola, the Citi defendants did not become the obligors of Viola.1 Certified Grocers, 150 Cal.App.3d at 286, 197 Cal.Rptr.…
2Cases cited4 opinions
- Shearson Lehman Hutton, Inc. v. Walter Wagoner, Jr., TrusteeCourt of Appeals for the Second Circuit · 1991
- Smith v. Arthur Andersen LLPCourt of Appeals for the Ninth Circuit · 2005
- Collins v. Kohlberg & Co. (In Re Southwest Supermarkets, LLC)United States Bankruptcy Court, D. Arizona · 2005
- Certified Grocers of California, Ltd. v. San Gabriel Valley BankCalifornia Court of Appeal · 1983