United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Marvin E. Aspen, United States District Judge
before us is Defendant U.S. Bank National Association's
("U.S. Bank") motion for an order, pursuant to
Federal Rule of Civil Procedure 67, directing Plaintiff
Maurice James Salem ("Salem") to deposit rent
amounts with the court. For the reasons stated below, we deny
U.S. Bank's motion.
February 21, 2014, Salem entered into a lease agreement with
Bassam and Roula Salman, the owners of the home at 36 Silo
Ridge Road North, Orland Park, Illinois. (Compl. (Dkt. No. 1)
¶ 3; id., Ex. A at 3.) Salem was to pay $3, 000
per month in rent. (Id. ¶ 3.) Shortly
thereafter, on February 27, 2014, Defendant U.S. Bank
initiated foreclosure proceedings against the owners of the
home. (Id. ¶ 7). On or around April 8, 2015,
U.S. Bank purchased the home at a judicial sale.
(Id.) On March 30, 2015, Salem sent a letter to U.S.
Bank, asking it to confirm that it would honor his lease
agreement with the Salmans, or, alternatively, whether U.S
Bank would accept his offer to purchase the home for $500,
000. (Id. ¶ 8; id., Ex. B.)
Salem's letter included a check for the monthly rental
payment of $3, 000. (Id. ¶ 8.)
alleges that he spoke with an assistant at U.S. Bank who
indicated that U.S. Bank would not honor the lease or accept
his offer to purchase the home. (Id. ¶¶
10-11.) Salem then filed the present action against U.S. Bank
on August 4, 2015, alleging breach of contract and seeking a
declaration that the lease is a bona fide lease that U.S.
Bank is obligated to honor. (Id. ¶ 19.) On
January 19, 2016, we dismissed Salem's claims because he
had insufficiently alleged that the lease at issue was
"bona fide" under Illinois law. (Dkt. No. 31 at 6,
8.) On May 3, 2016, we granted Salem leave to amend his
complaint as to the declaratory judgment action, (Dkt. No. 38
at 5-6), which he did on May 12, 2016, (Dkt. No. 39).
Bank filed the instant motion on October 11, 2016, requesting
we order Salem to deposit all past due and future rent
amounts with the court until the resolution of his action.
(Mot. (Dkt. No. 47) at 2-5.) U.S. Bank contends that, as of
November 1, 2016, Salem's past due rent totals $57, 000,
(Def's Reply. Br. (Dkt. No. 55) at 2), and that
"Salem has not made a single payment, nor has
Salem attempted to tender any such payment, " (Mot. at 3
(emphasis in original).) U.S. Bank refuses to accept rent
payments from Salem because "accepting such payments
could lead to an admission as to the validity of the alleged
Rule 67 provides, in relevant part:
If any part of the relief sought is a money judgment or the
disposition of a sum of money or some other deliverable
thing, a party-on notice to every other party and by leave of
court-may deposit with the court all or part of the money or
thing, whether or not that party claims any of it.
Fed. R. Civ. P 67(a). The purpose of rule 67 "is to
relieve the depositor of responsibility for a disputed fund
while the parties litigate its ownership." Fulton
Dental, LLC v. Bisco, Inc., No. 15 C 11038, 2016 WL
4593825, at *2 (N.D. 111. Sept. 2, 2016) (internal quotation
marks omitted) (quoting Engineered Med. Sys., Inc. v.
Despotis, No. 5 C 0170, 2006 WL 1005024, at *2 (S.D.
Ind. Apr. 14, 2006)). We have discretion to determine whether
to grant a Rule 67 motion. Maker Eng'g Co. v.
Screwmatics o/S. Carolina, Inc., No. 14 C 3761, 2014 WL
4979167, at *1 (N.D. 111. Oct. 6, 2014); Design Benefit
Plans, Inc. v. Enright, 940 F.Supp. 200, 207 (N.D. 111.
1996) (citing Garrick v. Weaver, 888 F.2d 687, 694
(10th Cir. 1989)). In determining whether to grant Rule 67
motions, courts have considered "whether the amount
sought to be deposited [is] definite; . . . whether there
would be repeated deposits that would impose an undue burden
on the clerk of the court; and whether the party seeking
leave to deposit the funds had demonstrated a likelihood of
success on the merits." Kansas City S. Ry. Co. v.
Borrowman, No. 09 C 3094, 2009 WL 3188305, at *4 (CD.
111. Sept. 30, 2009) (citing Enright, 940 F.Supp. at
207; Saw Mill Broads., Inc. v. Moore, 561 F.Supp.
1139, 1141 (S.D.N.Y 1983)).
Bank requests that we use our "inherent authority under
Federal Rule of Civil Procedure 67" to require Salem to
deposit all past due and future rents with the court, and
release the funds to Salem at the resolution of this action
should we determine that the lease is invalid, or release the
funds to U.S. Bank should we determine that the lease is
valid. Id. In response, Salem contends that he has
"no obligation ... to pay rent unless there is a valid
Lease, which is what this Court is seeking to determine,
" and thus "[t]here is simply no need for an escrow
account." (PL's Resp. Br. (Dkt. No. 53) at 4-5.)
U.S. Bank argues, however, that it is requesting Salem make
those payments to the Court, not to U.S. Bank, until we
decide whether the disputed lease is valid. (Def's Reply
Br. at 2.) In that way, U.S. Bank argues, it "merely
seeks to align Salem with his own interests in enforcing the
lease against U.S. Bank." (Id. at 2-3.)
cases where the relief sought is a money judgment, a party
may elect to deposit funds within its possession
with the court. Fed.R.Civ.P. 67(a) ("[A] party . . . may
deposit with the court all or any part of such sum or
thing."); see also Fed. R. Civ. P. 67 advisory
committee's note to 1983 amendment ("[T]here are
situations in which a litigant may wish to be relieved of
responsibility for a sum or thing, but continue to claim an
interest in all or part of it."). That is, Rule 67
should not be used "to require another party to
make an involuntary payment to the court, when the
payment is in dispute." Despotis, 2006 WL
1005024, at *2 (emphasis in original); see also Lefer v.
Murry, No C 13 6, 2013 WL 932062, at *1 (D. Mont. March
8, 2013) ("The plain language of Rule 67, i.e., 'may
deposit, ' allows a party to voluntarily move the court
to accept the deposit of funds or property; it does not
contemplate use by a party to compel another to produce money
or documents."). Rather, Rule 67 "benefits the
party that is holding funds or property in ...