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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Wells Fargo Bank NA, 

Plaintiff, 

v. 

Wyo Tech Investment Group LLC, et al., 

Defendants.

No. CV-17-04140-PHX-DWL

ORDER 

INTRODUCTION 

Pending before the Court is a discovery dispute concerning a subpoena served by 

interpleader defendants CWT Canada II Limited Partnership, Resource Recovery 

Corporation, and Jean Noelting (collectively, the “Judgment Creditors”) on third-party 

Wilenchik & Bartness, P.C. (“Wilenchik”), counsel for interpleader defendant Wyo Tech 

Investment Group LLC (“Wyo Tech”). (Doc. 101.)1

 The Court held a telephonic hearing 

on February 27, 2019. Although the Court initially hoped to rule on the discovery dispute 

promptly, the Court has concluded, after further consideration, that the issues presented by 

this dispute are intertwined with broader unresolved issues in the case. Accordingly, the 

Court will order the parties to file supplemental briefing. 

 

1

 In the discovery dispute filing, the Judgment Creditors noted that they served an identical subpoena on Wyo Tech’s other counsel, Beus Gilbert PLLC, and argued that “for the same reasons Wilenchik should be ordered to produce documents in accordance with the subpoena, Beus Gilbert should as well.” (Doc. 101 at 2.) 

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BACKGROUND 

I. The Judgment Creditors Obtain A $7 Million Judgment Against Danzik, Then Utilize A “Restraining Notice” To Freeze Wyo Tech’s Bank Account 

In 2016, the Judgment Creditors obtained a $7,033,491.13 judgment against Dennis 

Danzik and one of Danzik’s companies, RDX Technologies Corporation (collectively, 

“Judgment Debtors”), in New York state court. During that litigation, the New York court 

also held Danzik in civil and criminal contempt, concluding that Danzik is the “epitome of 

a recalcitrant, contemptuous, and incorrigible litigant” who “lie[d],” “deliberately did not 

disclose” relevant records, “coerced” a witness into “submitting false affidavits,” and 

“perjured himself before a Canadian bankruptcy court.” (Doc. 89-3 at 9-10, 12, 13.) 

In October 2017, the Judgment Creditors’ attorneys attempted to collect on the 

outstanding judgment by freezing a particular bank account at Wells Fargo bank. Notably, 

this account wasn’t held in the name of either of the Judgment Debtors—it was held in the 

name of Wyo Tech, an LLC doing business in Arizona. 

To freeze this bank account, the Judgment Creditors’ attorneys utilized a procedural 

tool known as a “restraining notice,” which is governed by section 5222 of the New York 

Civil Practice Law and Rules (“CPLR”). That statute provides, in relevant part, that “[a] 

restraining notice may be issued by . . . the attorney for the judgment creditor as officer of 

the court” and that it is permissible to serve a restraining notice “upon a person other than 

the judgment debtor or obligor” so long as the issuing attorney “has stated in the notice that 

. . . the judgment debtor or obligor has an interest in specified property in the possession 

or custody of the person served.” Id. § 5222(a), (b). In other words, CPLR § 5222 allows 

a judgment creditor to freeze a bank account held by a third party based solely on an 

assertion by the judgment creditor’s attorney that the judgment debtor holds an interest in 

the account—there is no requirement that the judgment creditor establish this interest to a 

judge before the restraining notice may issue. See generally Global Tech., Inc. v. Royal 

Bank of Canada, 2012 WL 89823, *12 n.9 (N.Y. Sup. Ct. 2012) (citation omitted) (“[A] 

party that seeks a restraining notice need only engage an attorney, who is authorized to 

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issue a restraining notice as an officer of the court. The Court has no involvement with the 

issue of whether service of the restraining notice upon the garnishee comports with due 

process until the garnishee challenges the restraining notice, or until the judgment debtor 

seeks an order of contempt or a money judgment against the garnishee.”); Cruz v. TD Bank, 

N.A., 2 N.E.3d 61, 76 (N.Y. 2013) (quoting CPLR § 5222(a)) (“When a judgment creditor 

has properly imposed a restraint on a bank account, the bank has no choice but to freeze 

the assets. Whether issued by a court or an attorney acting as an officer of the court, a 

restraining notice is an injunction and ‘disobedience is punishable as a contempt of 

court.’”). 

After being served with the restraining notice, Wells Fargo froze Wyo Tech’s 

account, which held $546,282.55. When Wyo Tech learned its account had been frozen, 

it immediately complained to the Judgment Creditors and to Wells Fargo, disputed whether 

the Judgment Debtors held any interest in the account, and threatened to sue. In response, 

Wells Fargo filed an interpleader action in this Court. 

II. The Arguments and Rulings Concerning Whether the Judgment Creditors Should 

Be Allowed to Conduct Discovery in the Interpleader Action 

At the outset of this case, the Judgment Creditors and Wyo Tech presented sharply 

different views about how the litigation should proceed. In the parties’ initial Rule 26(f) 

report, which was filed in July 2018, the Judgment Creditors argued they should be allowed 

to conduct “discovery . . . to determine who has an interest in the funds at issue, who owns 

Wyo Tech, how Wyo Tech gets its money, why it paid hundreds of thousands of dollars to 

Danzik’s company, wife, daughter, and cronies, why Danzik’s wife and daughter had 

control of Wyo Tech’s funds, and why Wyo Tech has paid thousands of dollars of Danzik’s 

legal fees, among other things.” (Doc. 62 at 11.) Wyo Tech, in contrast, argued that the 

Judgment Creditors shouldn’t be allowed to conduct any discovery and that the Court 

should immediately decide who was entitled to the interpleaded funds. (Doc. 62 at 13 

[“Wyo Tech . . . believes that discovery in this case should be deferred until such time as 

the Court rules on the motion for summary judgment Wyo Tech intends to file within 30 

days after the . . . Scheduling Conference. ”].) 

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On July 24, 2018, the Court held a Rule 16 scheduling conference. (Doc. 63.) 

During this conference, the Court noted Wyo Tech’s preference to postpone discovery until 

the Court had decided certain motions but ordered the parties to provide proposed dates in 

a new filing. 

On August 16, 2018, Wyo Tech filed a motion entitled “Motion for Immediate 

Release of Wrongly Restrained Funds.” (Doc. 72.) In this motion, Wyo Tech argued, 

among other things, that “Wyo Tech anticipates that Judgment Creditors and their Counsel 

will attempt to delay a ruling on this Motion by claiming that they need to conduct 

‘additional’ discovery. Any such request should be denied . . . [because] Judgment 

Creditors and their Counsel[’]s defense of their actions must be done based on the evidence 

they claim to have had in their possession at the time they issued the wrongful restraining 

notice . . . .” (Doc. 72 at 4 n.1, emphasis omitted.) 

On August 20, 2018, the parties filed a supplemental Rule 26(f) report. (Doc. 75.) 

It stated that the parties should have until August 9, 2019, to complete discovery and that 

dispositive motions shouldn’t be due until September 6, 2019. (Id. at 2-3.) 

On August 27, 2018, the Court issued its Rule 16 scheduling order. (Doc. 79.) In 

it, the Court approved the approach set forth in the parties’ supplemental Rule 26(f) report, 

adopting the parties’ proposed dates. (Id. at 2-4.) 

On October 9, 2018, the Judgment Creditors filed an opposition to Wyo Tech’s 

motion for immediate release of funds. (Doc. 88.) Among other things, the Judgment 

Creditors argued that (1) they “are entitled to take discovery, pursuant to the Court’s 

scheduling order, before the funds are summarily released” and (2) Wyo Tech’s request for 

an immediate ruling was inconsistent with “its counsel[’s] previous[] stipulat[ion] to an 

extensive discovery schedule.” (Doc. 88 at 13-15 & n.3.) 

On October 31, 2018, this case was reassigned to the currently-assigned judge. 

(Doc. 93.) 

On December 19, 2018, the Court issued an order resolving several pending matters, 

including Wyo Tech’s motion for immediate release of funds. (Doc. 94.) The Court 

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concluded that motion was “premature, because the discovery deadline is over eight 

months away,” and thus held that “Wyo Tech may refile a summary judgment motion in 

compliance with the Local Rules after the parties have had the opportunity to conduct 

discovery.” (Doc. 94 at 12-13.) 

III. The Current Discovery Dispute 

 The current discovery dispute (Doc. 101) concerns a subpoena the Judgment 

Creditors served on Wilenchik on February 11, 2019. The subpoena seeks documents 

sufficient to show all payments made to Wilenchik by Wyo Tech and by third-party 

Inductance Energy Corporation and the client(s) on whose behalf and the matter for which 

the payments were made. (Id. at 16.) Wilenchik contends these documents are irrelevant 

for three main reasons: (1) “[Inductance Energy Corporation] is not a party to this 

litigation”; (2) “a Restraining Notice’s validity rises or falls on the information known at 

the time of issuance”; and (3) “evidence of payment for the benefit of another is not 

sufficient to issue a Restraining Notice.” (Id. at 3-5.) On the other hand, the Judgment 

Creditors contend that “the sole issue in this case is whether Dennis Danzik . . . has an 

interest in the disputed funds,” and therefore “the [Judgment Creditors] are entitled to 

discover how much Wyo Tech paid in Danzik’s and his cronies’ legal fees and for what 

matters, because the more money Wyo Tech paid for Danzik’s and his cronies’ legal fees—

especially in matters in which Wyo Tech has no interest—the more probable it is that 

Danzik has an interest in the disputed funds.” (Id. at 1-2.) 

DISCUSSION 

The current discovery dispute brings into focus three lurking, interrelated issues that 

will eventually need to be resolved in this case. Rather than defer the inevitable, the Court 

will therefore require the parties to file supplemental briefing on those issues now. 

I. Did the Judgment Creditors Comply With CPLR § 5222(b) When They Issued The 

Restraining Notice To Wells Fargo In October 2017? 

On this issue, Wilenchik’s (and, presumably, Wyo Tech’s) argument is that the 

restraining notice was invalid on its face because (a) the Judgment Creditors’ theory, when 

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issuing the restraining notice, was that Wyo Tech was an alter ego of Danzik, yet (b) “New 

York has specifically and explicitly stated that a Restraining Notice based upon a theory of 

alter ego is invalid unless there is a ruling from a Court prior to the issuance of the 

Restraining Notice that the company is indeed an alter ego of the debtor.” (Doc. 101 at 4, 

emphasis in original.) In support of this view, Wilenchik cites JSC Foreign Econ. Ass’n 

Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 295 F. Supp. 2d 366, 392-93 

(S.D.N.Y. 2003), which held that the case law “do[es] not support the proposition that the 

assets of third parties may be restrained in anticipation of a finding that those third parties 

are alter egos or hold assets of alleged alter egos of the judgment debtor,” as “[s]uch a 

conclusion is . . . unsupported by the text of N.Y. C.P.L.R. § 5222” and “would also pose 

significant due process problems.” 

The Judgment Creditors’ position, meanwhile, is that “[i]t is well established [under 

CPLR § 5222(b)] that a judgment creditor can restrain funds even though they ‘are not 

nominally held in the name of the judgment debtor . . . if such funds are used for the benefit 

of the judgment debtor.’” (Doc. 88 at 14-15, citation omitted; see also Doc. 107 at 4 [“This 

type of broad restraint is proper under New York law.”].) 

During the hearing on February 27, 2019, the Court informed the parties that it had 

identified, through its own independent research, two additional decisions that seem to 

support Wilenchik’s view that a restraining notice can’t be used to restrain the funds of a 

third party that’s suspected to be an alter ego of the judgment debtor without a prior judicial 

finding of the alter-ego relationship. Those decisions are Capitol Records, LLC v. Defries, 

2014 WL 5608137, *1 (S.D.N.Y. 2014) (finding that restraining notice could not be issued 

where “[t]here has been no finding by this Court or any other court that IOTA is the alter 

ego of Defries, and there is no contention that Sony owes Defries money in his individual 

capacity”), and AXGINC Corp. v. Plaza Automall, Ltd., 2018 WL 4771886, *6 (E.D.N.Y. 

2018) (quoting JSC, 295 F. Supp. 2d at 392) (emphasis omitted) (“[C]ourts that have 

interpreted ERA Management and Bingham have held that both cases stand for the principle 

that a restraining notice can only be issued against a third party’s bank accounts if there is 

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evidence that those accounts actually hold ‘the assets of a judgment debtor.’”). The 

Judgment Creditors did not, however, have a meaningful opportunity to address those cases 

because they were raised for the first time by the Court during the hearing. 

Additionally, since the hearing concluded, the Court has conducted additional 

research and found some additional authorities that may undermine Wilenchik’s position. 

For example, in Hillwick Inc. v. Adv. Ready Mix Supply Corp., 2017 N.Y. Misc. LEXIS 

3908 (N.Y. Sup. Ct. 2017), a judgment creditor issued a restraining notice under CPLR 

§ 5222(b) to Chase Bank to freeze a bank account held by a third party. The judgment 

creditor issued the notice under an alter ego theory: specifically, that “[a]ll of these 

companies have similar names and appear to operate out of the same location, utilize the 

same equipment, offer the same service, and share a common owner.” Id. at *7-8. The 

account holder moved to vacate the restraining notice on several different grounds, 

including by “rel[ying] on JSC for the proposition that plaintiff cannot restrain a nonparty’s property absent a determination on its liability, here, by means of the alter-ego 

doctrine.” Id. at *12. The court seemed to reject this argument—although the opinion isn’t 

a model of clarity, it can be read as implying that it was procedurally permissible for the 

judgment creditor to issue the restraining notice even though it lacked a prior judicial 

finding of alter-ego status. Id.2

 Similarly, a recent law review article suggests that “[a]lter 

ego cases routinely uphold the restraint of the bank account merely on the allegation that 

the corporate veil between the third party and the judgment debtor ought to be pierced” and 

that JSC’s holding to the contrary was incorrect and constituted “a feeble Erie guess of 

New York law.” David Gray Carlson, Critique of Money Judgment Part Three: 

Restraining Notices, 77 Alb. L. Rev. 1489, 1549-53 (2014). 

Rather than continue to conduct its own independent research, the Court believes 

 

2

 Although the Hillwick court ultimately vacated the restraining notice, it did so because it concluded, on the merits, that the issuing party hadn’t proved its alter-ego claim. Id. at *13-15. The court also declined to sanction the issuing party, holding that its attempt to freeze the account under an alter-ego theory constituted a legitimate “attempt[] to enforce the legally obtained judgment against defendants in this action” and did “not 

constitute frivolous conduct or a drastic enforcement remedy against an innocent non- party.” Id. at *18. 

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the best approach would be to present the parties with an opportunity to fully research and 

brief the issue on their own. 

II. Does It Matter Whether The Restraining Notice Was Valid Under New York Law, 

Given That The Funds Have Now Been Interpleaded? 

Another lurking issue in this case is whether the Court even needs to address 

whether the restraining notice was issued in compliance with CPLR § 5222(b). On this 

issue, the Judgment Creditors have continually taken the position that the sole issue before 

the Court is whether Danzik has an interest in the funds, not whether the restraining notice 

was valid in the first place. (Doc. 88 at 16 [“As an initial matter, Wyo Tech’s arguments 

about the validity of the restraining notice are irrelevant now that the previously restrained 

funds have been interplead with the Court—with Wyo Tech’s consent. The question before 

the Court in this interpleader action is not whether the original restraint was valid, but rather 

whether Danzik does or does not have an interest in those funds such that they can be used 

to satisfy a portion of the CWT Parties’ judgment.”]; Doc. 101 at 2 [“As this Court knows, 

the sole issue in this case is whether Dennis Danzik—a judgment debtor of the CWT 

Parties—has an interest in the disputed funds, which are now held by the Clerk of Court 

pending resolution of this case.”]). Additionally, during the hearing on February 27, 2019, 

the Judgment Creditors elaborated on this theory for the first time—they argued that Wyo 

Tech’s only avenue for raising a procedural objection to the restraining notice would have 

been to initiate a proceeding in New York state court and that Wyo Tech forfeited its ability 

to raise such an objection by consenting to the interpleader action. (Doc. 106 at 9-10.) 

However, the Judgment Creditors acknowledged they had not identified any “case law” 

specifically addressing this “very unique situation.” (Id.) 

On the other hand, Wyo Tech contends that one of the disputed issues properly 

before the Court is whether the restraining notice was valid in the first place. (Doc. 72 at 

8, 13 [arguing that “the Restraining Notice is invalid as a matter of law and as such the 

funds must be released,” and “[w]hile it is clear that none of the funds in the Wyo Tech 

account are owned by anyone other than Wyo Tech, even if the Judgment Debtors did have 

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right, title, or interest to the funds (which they do not), they must nonetheless be released 

now as the Restraining Notice is invalid and therefore ineffectual to restrain/garnish the 

funds”]). 

Once again, the Court concludes it should solicit briefing from the parties on this 

key issue instead of attempting to resolve it, through its own independent research, based 

on the undeveloped assertions that have appeared in the parties’ prior pleadings. 

III. On The Merits, Are The Judgment Creditors Limited To The Information Known 

To Them At The Time They Issued The Restraining Notice, Or Are They Entitled 

To Conduct Post-Issuance Discovery To Support Their Claim? 

As noted in the Background section of this Order, the parties have presented 

different views throughout this case as to whether the Judgment Creditors should be 

allowed to pursue discovery in support of their claims. The Judgment Creditors have 

consistently argued they are entitled to pursue discovery. (See, e.g., Doc. 62 at 12 [Rule 

26(f) report]; Doc. 88 at 13-15 & n.3 [opposition to motion for immediate release of 

funds].) Wyo Tech, in contrast, has repeatedly argued that discovery is inappropriate 

because “Judgment Creditors and their Counsel[’]s defense of their actions must be done 

based on the evidence they claim to have had in their possession at the time they issued the 

wrongful restraining notice.” (Doc. 72 at 4 n.1, emphasis omitted.) 

Although the Court previously accepted the parties’ stipulated scheduling order 

(Doc. 79) and also concluded, in its December 19, 2018 order, that “the applicable law . . . 

suggests that the Judgment Creditors are entitled to conduct discovery to dispute Wyo 

Tech’s factual claims” (Doc. 94 at 13), the recent developments in this case suggest this 

issue wasn’t fully explored in the parties’ prior pleadings and would benefit from further 

development. Indeed, if Wyo Tech is correct that discovery is unavailable, then the 

pending discovery dispute will be easy to resolve. 

When addressing this issue in their supplemental briefs, the parties should note that 

Palestine Monetary Authority v. Strachman, 62 A.D.3d 213 (N.Y. App. Div. 2009), seems 

to support the Judgment Creditors’ claim that discovery is available in this context. There, 

the Ungars obtained a $116 million judgment against the Palestinian Liberation 

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Organization (“PLO”) and the Palestinian Authority (“PA”) and then took various steps to 

collect on the judgment. Id. at 216. One of those steps was to issue a restraining notice 

under CPLR § 5222 to freeze a $30 million bank account held by a different entity, the 

Palestinian Monetary Authority (“PMA”). Id. The Ungars’ theory, when issuing the 

restraining notice, was that “the PMA is the alter ego . . . of the PA or the PLO” and/or 

may “hold[] any funds of the PA or the PLO.” Id. at 218. During subsequent litigation in 

state court, in which the PMA sought to vacate the restraining notice, the Ungars “requested 

discovery” in an attempt to obtain evidentiary support for their position. Id. The trial court 

largely rejected these requests and ruled against the Ungars, even though it “acknowledged 

that discovery was limited and that upon full discovery the evidence might show the PMA 

does hold funds of the PA or the PLO.” Id. at 220. The appellate court reversed, holding 

that the Ungars should have been allowed to conduct more discovery. Id. at 231. 

The parties should further note that “[b]road post-judgment discovery in aid of 

execution is the norm in federal and New York state courts.” AXGINC, 2018 WL 4771886 

at *4 (quoting Amtrust North America, Inc. v. Preferred Contractors Ins. Co. Risk 

Retention Grp., LLC, 2016 WL 6208288, at *2 (S.D.N.Y. 2016)) (second citation and 

internal quotation marks omitted). However, the case law refers to “broad post-judgment

discovery,” not post-restraining notice discovery, and the Court has some concerns about 

the due process implications that would be posed by a system in which a judgment creditor 

would have the right to conduct broad discovery after the issuance of a restraining notice 

in the hope of identifying evidence that might provide post hoc support for its claim. 

* * * 

Accordingly, IT IS ORDERED that the Judgment Creditors and Wyo Tech submit 

supplemental briefs on the following three issues: (1) did the Judgment Creditors comply 

with CPLR § 5222(b) when they issued the restraining notice to Wells Fargo in October 

2017?; (2) does it matter whether the restraining notice was valid under New York law, 

given that the funds have now been interpleaded?; and (3) on the merits, are the Judgment 

Creditors limited to the information known to them at the time they issued the restraining 

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notice, or are they entitled to conduct post-issuance discovery to support their claim? The 

deadline for the parties to submit simultaneous briefs on these issues shall be Friday, 

March 22, 2019. No responses or replies to the supplemental briefs are permitted. Each 

brief shall not exceed 10 pages in length. 

IT IS FURTHER ORDERED that Wilenchik and Beus Gilbert PLLC need not 

respond to the subpoenas until the Court has resolved the discovery dispute. 

 Dated this 5th day of March, 2019. 

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