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J. Henk Taylor (016321)

RYAN RAPP & UNDERWOOD, P.L.C.

3200 N. Central Ave, Suite 2250

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

Email: htaylor@rrulaw.com 

Jeffrey M. Eilender (admitted pro hac vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 344-7677

E-Mail: jeilender@schlamstone.com 

E-Mail: bnash@schlamstone.com 

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II Limited

Partnership, Resource Recovery Corporation, and

Jean Noelting

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Wells Fargo Bank, N.A.

Plaintiff,

v.

Wyo Tech Investment Group, LLC, CWT 

Canada II Limited Partnership, Resources 

Recovery Corporation, and Jean Noelting,

Defendants.

Case No.: 2:17-cv-04140-PHX-DWL

CWT PARTIES’ SUPPLEMENTAL 

BRIEF IN FURTHER 

OPPOSITION TO NONPARTY 

WILENCHIK AND BARTNESS, 

P.C.’s MOTION TO QUASH

SUBPOENAS

Oral Argument Requested

And related claims.

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-iTABLE OF CONTENTS

Page

ARGUMENT........................................................................................................................ 1

I. The CWT Parties Properly Issued the Restraining Notice Under C.P.L.R. 

§ 5222(b) Even Though There Was No Prior Adjudication That Wyo 

Tech Is Danzik’s Alter Ego............................................................................ 1

II. Whether the Restraining Notice Was Properly Issued Under C.P.L.R. 

§ 5222(b) Does Not Matter Here Because the Disputed Funds Have 

Already Been Interpleaded, and This Is Not—Nor Could It Be—an 

Action to Vacate the Restraining Notice........................................................ 5

III. The CWT Parties Are Entitled to Discovery to Support Their Claim That 

Danzik Has an Interest in the Disputed Funds, And They Are Not Limited 

to the Information They Knew When They Issued the Restraining Notice... 8

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PRELIMINARY STATEMENT

First, the CWT Parties properly issued the restraining notice under C.P.L.R. 

§ 5222(b), even though there was no prior adjudication that Wyo Tech is Danzik’s alter 

ego. Second, in any event, whether the restraining notice was properly issued under 

C.P.L.R. § 5222(b) does not matter here, because the disputed funds have already been 

interpleaded, and this is not—nor could it be—an action to vacate the restraining notice. 

Third, the CWT Parties are entitled to discovery to support their claim that Danzik has an 

interest in the disputed funds, and they are not limited to the information they knew when 

they issued the restraining notice.

ARGUMENT

I. The CWT Parties Properly Issued the Restraining Notice Under C.P.L.R. 

§ 5222(b) Even Though There Was No Prior Adjudication That Wyo Tech Is

Danzik’s Alter Ego

Wyo Tech is wrong 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.” Dkt. No. 101 at 4 (citing 

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)).

The New York Appellate Division’s holding in Thompson v. Pollack is on all 

fours. 59 A.D.3d 525 (N.Y. App. Div. 2nd Dep’t 2009). There (like here), the judgment 

creditor used a restraining notice to freeze a nondebtor’s bank account on the ground that 

the judgment creditor “believed” that the judgment debtor “had an interest” in the funds in 

the account. Id. at 526. And while the judgment creditor (like the CWT Parties) did not 

have a prior adjudication of alter ego liability, and the nondebtor (like Wyo Tech) 

“asserted that it was the owner of the restrained account” and that the judgment debtor 

“had no interest in the corporate account,” the court refused to vacate the restraining 

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notice—holding that, since the judgment debtor (like Danzik) used the account for 

“personal expenses,” the case should be “remitted” to the trial court for a “hearing to 

determine whether the defendant has an ‘interest’” in the restrained account. Id. The 

absence of a prior adjudication of alter ego liability was irrelevant to whether the 

restraining notice was properly issued. See id.

The New York Appellate Division’s holding in 1420 Associates, Inc. v. Modern 

Landfill & Recycling is also directly on point. 256 A.D.2d 538 (2nd Dep’t 1998). There 

(like here), the judgment creditor used a restraining notice to freeze a nondebtor’s bank 

account on the ground that the judgment creditor “continued to use the subject account to 

pay, inter alia, admitted personal expenses.” Id. at 539. And while the judgment creditor 

(like the CWT Parties) did not have a prior adjudication of alter ego liability, and the 

nondebtor (like Wyo Tech) “asserted that it was the owner of the subject Chase account” 

and was an entity “separate and distinct” from the judgment debtor, the court held that the 

case should be “remitted” to the trial court for a “hearing to determine whether” the 

judgment debtor had an “‘interest’ in the account within the meaning of CPLR article 52.” 

Id. And again, the absence of a prior adjudication of alter ego liability was irrelevant to 

whether the restraining notice was properly issued. See id.

Further, contrary to Wyo Tech’s argument (Dkt. No. 101 at 4), and as this Court 

recognized in its March 5 order (Dkt. No. 109 at 7), “[a]lter ego cases routinely uphold the 

restraint of the bank account merely on the allegation”—not a prior adjudication—“that 

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

David Gray Carlson, Critique of Money Judgment Part Three: Restraining Notices, 77 

Alb. L. Rev. 1489, 1549 (2014) (emphasis added); see also United States v. Ceparano, 

2009 WL 8690129, at *3 (E.D.N.Y. May 13, 2009) (denying motion to vacate restraining 

notice served on nondebtor despite lack of prior adjudication of alter ego liability); Ivor B. 

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Clark Co. v. Hogan, 296 F. Supp. 407, 411 (S.D.N.Y. 1969) (restraining notice served on 

nondebtor upheld despite lack of prior adjudication of alter ego liability); Blue Giant 

Equip. Corp. v. Tec-Ser, Inc., 92 A.D.2d 630 (3rd Dep’t 1983) (denying motion to vacate 

restraining notice served on nondebtor despite lack of prior adjudication of alter ego

liability); Plaza Hotel Assocs. v. Wellington Assocs., Inc., 378 N.Y.S.2d 859 (N.Y. Special 

Term 1975) (denying motion to vacate restraining notice served on nondebtor’s bank 

account based on judgment creditor’s claim that nondebtor and debtor were “separate only 

in form” despite lack of prior adjudication of alter ego liability); De Lepomme v. Luquer, 

39 N.Y.S.2d 283 (N.Y. Sup. Ct. 1943) (denying motion to vacate restraining notice served 

on nondebtor based on judgment creditor’s claim that nondebtor was the judgment debtor 

“under a different name” and that the restrained property was “in fact the property of said 

judgment debtor” despite lack of prior adjudication of alter ego liability).

While, as this Court observed (Dkt. No. 109 at 6), the federal court in JSC held that 

a restraining notice may not be used to restrain a nondebtor’s assets “in anticipation of a 

finding that those” nondebtors are “alter egos” or “hold assets of alleged alter egos of the 

judgment debtor” (295 F. Supp. 2d at 392-93)—and a few other federal cases have 

followed this holding (Dkt. No. 109 at 6-7)—other cases and commentary have rejected 

these decisions as wrongly decided, or have narrowed their holdings to be meaningless. 

Indeed, as this Court observed (id. at 7), according to a recent law review article, 

JSC was wrongly decided and a “feeble Erie guess of New York law.” Carlson, 77 Alb. L. 

Rev. at 1553. And as the New York federal court held in United States v. Ceparano, JSC 

“stands only for the proposition that alleged ‘alter ego’ status alone is insufficient to issue 

a restraining notice against assets of a third party without evidence of fraudulent 

conveyance or a showing that the third party is actually holding assets of the judgment 

debtor. Ceparano, 2009 WL 8690129, at *3. Thus, a prior adjudication of alter ego 

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liability is not required to issue a restraining notice if the judgment creditor has some 

other “evidence” of a fraudulent transfer or can make a “showing” that the third party is 

holding the judgment debtor’s assets. See id.; see also Hillwick Inc. v. Advanced Ready 

Mix Supply Corp. 2017 WL 4694865, at *5 (N.Y. Sup. Ct. May 15, 2017) (same), cited in 

Dkt. No. 202 at 7.

Further, requiring a judgment creditor to get a prior adjudication of alter ego 

liability against a nondebtor before restraining that nondebtor’s assets is inconsistent with 

the purpose of a restraining notice—which is to “maintain the status quo” while the 

judgment creditor seeks turnover of the disputed funds. Ceparano, 2009 WL 8690129, at 

*3; see also Interpool Ltd. v. Patterson, 1995 WL 105284, at *1 (S.D.N.Y. Mar. 13, 1995)

(purpose of restraining notice is to “preserve the status quo pending further proceedings in 

which the creditor’s ability to reach specific property to satisfy the judgment may be 

determined”); C.P.L.R. § 5222 Legislative Studies and Reports (“restraining notice may 

be served on the debtor as well as on any garnishee or suspected garnishee”) (emphasis 

added).

The New York Court of Appeals recently held that a restraining notice may be used 

to “secure funds for later transfer to the judgment creditor through a sheriff’s execution 

or turnover proceeding.” Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 66 (2013) (emphasis 

added). And so requiring a judgment creditor to adjudicate whether a nondebtor is an alter 

ego of a debtor—and thus whether its assets are subject to turnover—before restraining 

those assets is backward, and defeats the purpose of being able to use a restraining notice 

to maintain the status quo. 

Indeed, a judgment creditor “may litigate” its claims that a nondebtor is the “alter 

ego[]” of the judgment debtor in a turnover proceeding under C.P.L.R. § 5225(b). WBP 

Cent. Assocs., LLC v. DeCola, 50 A.D.3d 693, 694 (N.Y. App. Div. 2nd Dept 2008). And 

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at the beginning of a turnover proceeding—which, under Cruz, may come after service of 

a restraining notice—the judgment creditor “need not prove” its entitlement to the funds, 

and instead must only “plausibly allege that it can meet this burden.” N. Mariana Islands 

v. Millard, 845 F. Supp. 2d 579, 584-85 (S.D.N.Y. 2012). Thus, a judgment creditor may 

restrain a nondebtor’s assets, and then litigate alter ego liability in a turnover 

proceeding—rather than before. And if a judgment creditor had to successfully adjudicate 

a nondebtor’s alter ego liability before restraining that nondebtor’s assets, a judgment 

creditor would almost never be able to use a restraining notice—since during the 

pendency of any alter-ego litigation, the nondebtor could freely move the disputed 

funds—and turnover and separate alter-ego litigation would be moot. 

II. Whether the Restraining Notice Was Properly Issued Under C.P.L.R. 

§ 5222(b) Does Not Matter Here Because the Disputed Funds Have Already 

Been Interpleaded, and This Is Not—Nor Could It Be—an Action to Vacate

the Restraining Notice

Wyo Tech is wrong that “even if Judgment Debtors had some unknown interest” in 

the disputed funds, the funds “must be released” because the restraining notice was 

“invalid as a matter of law” in the first instance. Dkt. No. 72 at 8.

In an interpleader action, the court must determine the “ownership” of the disputed 

funds. United California Bank v. Fadel, 482 F.2d 274, 275 (9th Cir. 1973); see also NLT 

Computer Servs. Corp. v. Capital Computer Sys., Inc., 755 F.2d 1253, 1263 (6th Cir. 

1985) (“only purpose of the interpleader action was to determine the ownership of the 

funds”); Amethyst Int’l, Inc. v. Duchess, 2014 WL 683670, at *5 (D.N.J. Feb. 20, 2014) (it 

is “indisputable” that “primary purpose” of interpleader action is to “determine who is the 

rightful owner” of dispute asset); Endurance Am. Specialty Ins. Co. v. WFP Sec. Corp., 

2011 WL 13220118, at *3 (C.D. Cal. June 27, 2011) (interpleader action used to 

“determine” the disputed asset’s “rightful owner”); Wells v. Kearney, 2009 WL 2568635, 

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at *2 (D. Ariz. Aug. 18, 2009) (interpleader action used to “determine ownership” of 

disputed funds); Aero Care Int’l L.L.C. v. Int’l Medevac Servs., Inc., 2008 WL 853623, at 

*1 (D. Ariz. Mar. 27, 2008) (interpleader action used to “secure and determine the 

rightful ownership of the contested funds”) (all emphasis added).

Thus, Wyo Tech erroneously argues that the ownership of the disputed funds here 

is irrelevant because the restraining notice was improperly issued in the first instance. 

Indeed, Wyo Tech effectively argues that the disputed funds should be released because 

they should have never been restrained, and so never should have been available to be 

interpleaded, and so never should have been interpleaded. But Wyo Tech waived any 

objection to the interpleader of the disputed funds by failing to object to Wells Fargo’s 

motion to interplead these funds. See Dkt. No. 13 at 3 (“Wyo Tech does not object to 

interpleader of its funds as a first step toward restoring its rightful access to its own 

funds.”). And in any event, this Court already held that interpleader of the disputed funds 

is proper here. Dkt. No. 69 at 4; see also Dkt. No. 94 at 12; Wells Fargo Bank, Nat’l Ass’n 

v. Magellan Ship Owners Ass’n, 2010 WL 2266752, *2 (D. Ariz. 2010) (rejecting 

claimant’s objection to interpleader of disputed funds when court “already determined that 

interpleader is an appropriate procedural mechanism”).

Further, as the CWT Parties showed in their opposition to Wyo Tech’s motion to 

enjoin other restraining notices the CWT Parties served (Dkt. No. 107 at 5-6), only the 

“court out of which the restraining notice issued”—which is the New York court here—

may vacate or otherwise invalidate a restraining notice served under C.P.L.R. § 5222(b). 

CSX Transp., Inc. v. Island Rail Terminal, Inc., 879 F.3d 462, 471 (2d Cir. 2018). And as 

the CWT Parties also showed (Dkt. No. 107 at 6-8), the Anti-Injunction Act also prohibits 

this Court from invalidating a New York restraining notice. See Pressman v. Neubardt, 

2002 WL 31780183, at *4 (S.D.N.Y. Dec. 12, 2002) (denying motion to enjoin judgment 

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creditors’ use of restraining notices to enforce New York state judgment because 

restraining notice is a “state court proceeding within the meaning of the Anti-Injunction

Act”).

Thus, by asking this Court to consider solely whether the restraining notice was 

properly issued—rather than who owns the disputed funds—Wyo Tech asks this Court to 

ignore its sole responsibility in an interpleader action (to determine “ownership” of the 

disputed funds) and to instead rule on an issue (validity of the restraining notice) that it 

has no power to adjudicate.

If Wyo Tech wanted to challenge the validity of the restraining notice, it could 

have done so by moving to vacate the restraining notice in New York. But it did not, and 

considering only whether the restraining notice was properly issued—as Wyo Tech urges 

this Court to do—rather than who owns the disputed funds, would improperly allow Wyo 

Tech to make an end run around the New York court and seek relief from this Court that 

this Court cannot grant. Moreover, if this Court were to grant judgment for Wyo Tech 

solely on the ground that the restraining notice was improperly issued (which, as 

explained above, is wrong in any event) and without regard to ownership of the disputed 

funds, this Court would be abdicating its sole duty in this case—which is to decide who is 

the rightful owner of the disputed funds. See United California Bank, 482 F.2d at 275.

Further, there is no due process problem with requiring Wyo Tech to challenge the 

validity of the restraining Notice in New York. To restrain or order the turnover of funds, 

the New York court “need only have in personam jurisdiction over the garnishee,” i.e., 

Wells Fargo, and does not need to have jurisdiction over “either the judgment debtor or 

the third party who allegedly possesses the money in which the debtor has an interest.” N. 

Mariana Islands v. Millard, 845 F. Supp. 2d 579, 583 (S.D.N.Y. 2012). This is because a 

restraining notice to, or turnover petition against, a nondebtor is a “proceeding against a 

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person, in order to ‘demand that’ this person (the garnishee) ‘convert’” or restrain 

“‘property for money for payment to a creditor.’” Id. (citation omitted). And if Wyo Tech 

wanted to avoid the risk that its funds could be restrained in New York, it should have 

deposited its funds in a bank that did not have a New York branch.1

III. The CWT Parties Are Entitled to Discovery to Support Their Claim That 

Danzik Has an Interest in the Disputed Funds, And They Are Not Limited to 

the Information They Knew When They Issued the Restraining Notice

As a threshold matter, because—as explained above, this Court must determine the 

rightful ownership of the disputed funds, and the validity of the restraining notice is not 

relevant—what the CWT Parties knew when they issued the restraining notices is not 

relevant either. To the contrary, the only relevant issue here is who is the rightful owner of 

the disputed funds, and the CWT Parties are entitled to discovery to support their claim 

that Danzik owns—or otherwise has an interest in—these funds. See Magellan Ship 

Owners Ass’n, 2010 WL 2266752, *2 (“the Court cannot sanction an early distribution of 

disputed funds absent full due process of law”).

In any event, under New York law, a judgment creditor is entitled to take discovery 

to support its claim that the judgment debtor owns or otherwise has an interest in funds 

held by a nondebtor after the judgment debtor restrains these funds.

As this Court observed, the New York Appellate Division’s decision in Palestine 

Monetary Authority v. Strachman is on point. 62 A.D.3d 213 (N.Y. App. Div. 1st Dep’t). 

There, judgment creditors served a restraining notice on a nondebtor, and the Appellate 

Division held that—after service of the restraining notice—the judgment creditor was 

entitled to “full discovery” concerning whether the nondebtor was the “alter ego” or 

 

1

Since the sole issue here is who is the rightful owner of the disputed funds, cases 

vacating restraining notices on the ground that a nondebtor’s payment of a judgment 

debtor’s expenses, without more, is insufficient to justify issuance of a restraining notice 

may be relevant to the legal question regarding what level of interest in or control over the 

disputed founds amounts to “ownership,” but they are not dispositive of this question.

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“agent” of the judgment debtor, and whether the restrained funds “in fact, belong[ed]” to 

the judgment debtor. Id. at 222.

The court’s decision in Gryphon Domestic VI, LLC v GBR Information Services, 

Inc. is also on point. 2004 WL 5653926 (N.Y. Sup. Ct. Oct. 29, 2004). There the 

judgment creditors served a restraining notice on a nondebtor despite the nondebtor’s 

claim in a “sworn affidavit” that it “owe[d] no debt to the judgment debtors” and had no 

property in its possession “in which the judgment debtors ha[d] an interest.” Id. The 

judgment creditors then brought a turnover proceeding, the purpose of which—like this 

interpleader action—was to determine whether the judgment debtors were “presently 

entitled to possession of the property” or whether the judgment creditors’ “rights to 

possession of the property [were] superior to that of the third party.” Id. And though the 

court there held that a turnover order was “not appropriate at this time” because the 

judgment creditors did not have enough evidence to meet this standard, the court also held 

that the judgment creditors “must have the opportunity to gather additional information by 

disclosure and the examination” of relevant documents.” Id. And the court further held the 

nondebtor’s president’s sworn statement that the nondebtor had “no money or property of 

the judgment debtors” could not “deprive the judgment creditors of the right to conduct 

discovery,” since this sworn statement was “not the equivalent of an examination.” Id.

(emphasis added). Thus, though the judgment creditors did not have enough evidence 

when they issued the restraining notice to show that the restrained funds belonged to the 

judgment debtors, the court denied the motion for a turnover order “without prejudice to 

renewal following discovery.” Id. (emphasis added). 

Further, the court’s decision in De Lepomme is also on point. 39 N.Y.S.2d 283. 

There, the court held that a judgment creditor that restrained assets of a nondebtor had the 

“right” to take “examinations” to determine whether the “property in the hands” of the 

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nondebtor was “property belonging to the judgment debtor or to others,” and further held 

that that right “cannot be taken away from him by the presentation of a statement” by the 

nondebtor “as to its relations concerning the property,” because “such a statement is not 

the equivalent of the examination allowed” by law. Id. (denying motion to vacate 

restraining notice without prejudice to a renewal “after the examinations have been had”).

In its March 5 order, this Court stated that it 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.” Dkt. No. 

109 at 10. This is a valid concern, since “absent safeguards,” New York’s broad postjudgment enforcement procedures “could well be abused by judgment creditors seeking to 

drag foreign entities into court simply by bare allegations that they possess the money of a 

judgment debtor.” N. Mariana Islands, 845 F. Supp. 2d at 583. But a judgment creditor’s 

right to restrain the assets of—and then seek discovery from—a nondebtor is limited by 

the requirement that the judgment creditor “plausibly allege that it can meet its burden” to 

show that the judgment debtor has an interest in, and is entitled to possession of, the 

disputed funds (id. at 584-85)—which the CWT Parties did, and which this Court 

functionally recognized when it held (with Wyo Tech’s consent) that this case is 

appropriate for interpleader.2 And in any event, this procedure reflects the New York 

legislature’s carefully-crafted balance between judgment creditors’ and judgment debtors’ 

(and their alleged alter egos’) rights. So as explained above, if Wyo Tech did not want to 

subject itself to this procedure, it could have deposited its funds in a bank with no New 

York branches—especially since it knew (or could have known) about the judgment here.

 

2

See Dkt. No. 69 at 8 n.1 (“The competing claims of the Judgment Creditors and Wyo 

Tech in this action themselves demonstrate the difficulty Wells Fargo would encounter in 

trying to resolve who is entitled to the funds in the account.”).

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Dated:March 25, 2019

Phoenix, Arizona

Respectfully submitted,

RYAN RAPP & UNDERWOOD, P.L.C.

By: /s/ Henk Taylor (016321)

J. Henk Taylor (016321)

3200 N. Central Ave., Suite 1600

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

E-Mail: htaylor@rrulaw.com

SCHLAM STONE & DOLAN LLP

Jeffrey M. Eilender 

Bradley J. Nash

Joshua Wurtzel

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 34407677

E-Mail: jeilender@schlamstone.com

E-Mail: bnash@schlamstone.com

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II 

Limited Partnership, Resource Recovery 

Corporation, and Jean Noelting

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ORIGINAL e-filed and COPIES

e-mailed this 25th day of March

2019 as follows:

Dennis I. Wilenchik

WILENCHIK & BARTNESS P.C.

2810 North Third Street

Phoenix, AZ 85004

E-Mail: diw@wb-law.com

Leo R. Beus

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, AZ 85008

E-Mail: lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment 

Group, LLC

/s/ Henk Taylor 

J. Henk Taylor

Case 2:17-cv-04140-DWL Document 114 Filed 03/25/19 Page 14 of 14