UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IVO GEIJSEN,

Plaintiff, 

v.

DANTE ODONI, RANIM BARGHOUTY,

and COLDWELL BANKER 

RESIDENTIAL REAL ESTATE, LLC,

Defendants. 

)

)

)

)

)

)

)

)

)

)

)

20 C 2837

Judge Charles P. Kocoras

ORDER

Before the Court is Plaintiff Ivo Geijsen’s (“Geijsen”) motion for summary 

judgment under Federal Rule of Civil Procedure 56. For the following reasons, the 

Court will grant the motion.

STATEMENT

The following facts are taken from the record and are undisputed unless 

otherwise noted.

Plaintiff Geijsen is a citizen of the Netherlands and owns a condominium in the 

Trump Tower, 401 N. Wabash, Chicago, Illinois (the “Condominium”). Defendants 

Dante Odoni and Ranim Barghouty (collectively, “Buyers”) are citizens of the State of 

Illinois and contracted to purchase the Condominium from Geijsen. Defendant 

Coldwell Banker Residential Real Estate LLC (“Coldwell Banker”) is a California 

limited liability company and escrowee to the transaction between Geijsen and Buyers.

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 1 of 9 PageID #:149
2

On July 9, 2019, Geijsen and Buyers entered into a Condominium Real Estate 

Sale and Purchase Contract (the “Contract”) for the purchase of the Condominium. On 

July 23, 2019, the parties modified the Contract (the “Modification”) to clarify certain 

provisions of the Contract. The parties do not dispute the validity of either contract. 

As part of the Contract, Buyers deposited $135,000 of earnest money (the “Initial 

Earnest Money”) with Coldwell Banker. Coldwell Banker still retains the Initial 

Earnest Money. Buyers were also required to pay an additional $108,000 in earnest 

money by March 31, 2020 (the “Final Earnest Money”), bringing the total earnest 

money to $243,000, or 9% of the final purchase price of the Condominium. The Final 

Earnest Money has not been deposited.

On March 15, 2020, Trump Tower suspended many of the property amenities, 

such as the pool, spa, and room service, due to the COVID-19 pandemic. On March 

30, 2020, Buyers notified Geijsen that due to the pandemic, Buyers believed that they 

were relieved from their obligation to perform under the Contract and were no longer 

obligated to pay the Final Earnest Money. Buyers further stated that they were entitled 

to a return of the Initial Earnest Money.

Based on these facts, Geijsen filed his complaint on May 11, 2020, alleging 

breach of contract against Buyers and seeking declaratory judgement that he is entitled 

to be paid the Final Earnest Money from Buyers and the Initial Ernest Money from

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 2 of 9 PageID #:150
3

Coldwell Banker. On July 14, 2020, Geijsen moved for summary judgement under

Rule 56.

In ruling on a motion for summary judgment, the Court considers “the record as 

a whole.” Morgan v. Harris Trust & Sav. Bank of Chi., 867 F.2d 1023, 1026 (7th Cir. 

1989). In its consideration, the Court construes all facts and draws all reasonable 

inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 

255 (1986). Summary judgment is appropriate “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact arises where a 

reasonable jury could find, based on the evidence of record, in favor of the non-movant. 

Anderson, 477 U.S. at 248. 

I. Breach of Contract Claim

Geijsen argues that he is entitled to summary judgment because the undisputed 

facts show that Buyers breached the Contract by not paying the Final Earnest Money 

and the plain language of the contract shows he is entitled to liquidated damages in the 

amount of $243,000. “Under Illinois law, the elements of a breach of contract cause of 

action are a valid and enforceable contract, breach by the defendant, resulting in 

damages to the plaintiff.” Nelson v. Bd. Of Educ., Country Club Hills Sch. Dist. 160, 

292 F.Supp.3d 792, 799 (N.D. Ill. 2017). The validity of the Contract is not in dispute. 

Additionally, non-payment of the Final Earnest Money constitutes a material breach of 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 3 of 9 PageID #:151
4

the Contract unless the breaching party has a valid excuse. See REI Transp., Inc. v. 

C.H. Robinson Worldwide, Inc., 519 F.3d 693, 698 (7th Cir. 2008). Buyers provide two 

affirmative defenses that they argue relieve them of their obligations under the Contract: 

frustration of purpose and the doctrine of impossibility. We address each in turn.

A. Frustration of Purpose

Buyers first argue that their performance under the contract is excused by 

frustration of purpose. We disagree.

The doctrine of commercial frustration will be applied when (1) the frustrating 

event was not reasonably foreseeable and (2) the value of counter-performance has been 

totally or nearly totally destroyed by the frustrating cause. Smith v. Roberts, 54 Ill. App.

3d 910, 913 (4th Dist. 1977). “[F]rustration is no defense if it was foreseeable or 

controllable by the promisor, or if counter-performance remains valuable.” Greenlee 

Foundries, Inc v. Kussel, 12 Ill. App. 3d 611, 619 (1st Dist. 1973).

Buyers contend that the COVID-19 pandemic and its accompanying financial 

impact on their business made it impossible to obtain a mortgage, thus frustrating the 

purchase of the condominium. We agree with Defendant that the COVID-19 pandemic 

was the frustrating event, that it was not reasonably foreseeable, and that the first 

element is met.

However, we disagree that the value of counter-performance, Geijsen providing 

Buyers with title to the Condominium, has been totally or nearly totally destroyed by 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 4 of 9 PageID #:152
5

the frustrating cause. Buyers simply posit that the Trump Tower building and amenities 

are not the same as they were at the time of entering into the Contract, which the Court 

takes to be the allegation of destruction of counter-performance.

Illinois court have interpreted “totally or near totally destroyed” much differently 

than Buyers posit. For example, in Smith v. Roberts, the defendant operated a men’s 

clothing store. 54 Ill.App.3d at 912. The defendant entered into a lease agreement with 

the plaintiff for the rental of the first floor and basement of a property located adjacent 

to the defendant’s main store. Id. The defendant planned to use the rented space to 

establish a new department of the store. Id. Unfortunately, the defendant’s main store 

was completely destroyed by a fire. Id. The Illinois Appellate Court held that counterperformance of the lease with the plaintiff for the adjacent space was totally or near 

totally destroyed because the main store was gone. Id. The Court reasoned that the 

value of the rented space was destroyed because it was never meant to operate without 

the main store and the defendant’s operations would have to change drastically to make 

the new space self-sufficient. Id. at 913.

Here, the temporary closure of the amenities of Trump Tower falls far short of 

the total destruction of counter-performance shown in Smith. While the amenities 

contribute to the appeal of living in a luxury high-rise, the main counter-performance 

by Geijsen is providing the Condominium. The Buyers have made no allegation that 

the actual dwelling unit has any material issue, has been destroyed, or rendered unusable 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 5 of 9 PageID #:153
6

by the COVID-19 pandemic. The Condominium still retains its value and has not been 

totally or near totally destroyed by the pandemic. Therefore, the second element of the 

frustration of purpose is not satisfied. Accordingly, Buyers have not asserted frustration 

of purpose as a valid excuse for their breach of the Contract.

B. Doctrine of Impossibility

Defendants next argue that the doctrine of impossibility excuses their

performance under the Contract because the COVID-19 pandemic impacted Buyers’ 

business such that it became impossible to obtain a mortgage and complete performance 

of the Contract. We disagree.

The potential inability to obtain financing is generally considered a foreseeable 

risk that can be readily guarded against by the inclusion in the contract of financing 

contingency provisions. YPI 180 N. LaSalle Owner, LLC v. 180 N. Lasalle II, LLC, 

403 Ill. App. 3d 1, 7 (1st Dist. 2010) (citing Ner Tamid Congregation of North Town v. 

Krivuchko, 638 F. Supp. 2d 913, 928 (N.D. Ill. 2009)). A “mortgage contingency” 

clause, which is typically present in a Condominium Real Estate Sale and Purchase 

Contract, can guard against the inability to obtain a mortgage. However, a mortgage 

contingency clause was not included in the Contract. In fact, the clause was removed 

from the Contract prior to execution. The inability to obtain financing alone is 

insufficient to excuse performance under the doctrine of impossibility. YPI 180 N. 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 6 of 9 PageID #:154
7

Lasalle Owner, LLC, 403 Ill.App.3d at 7. Therefore, the doctrine of impossibility is 

not a valid excuse for Defendants.

Defendants also seem to imply that the suspension of amenities in Trump Tower 

implicates the doctrine of impossibility. However, the doctrine excuses performance 

only where performance is rendered objectively impossible due to destruction of the 

subject matter of the contract or by operation of law. YPI 180 N. Lasalle Owner, LLC, 

403 Ill.App.3d at 6 (citing Leonard v. Autocar Sales & Service Co., 392 Ill. 182, 187 

(Ill. 1945)). Even if the amenities were destroyed, there is no allegation that the 

Condominium itself was destroyed. As such, Defendants have not asserted a valid 

excuse for their breach of the Contract.

Accordingly, Geijsen is entitled to summary judgment.

II. Liquidated Damages

Geijsen argues that he is entitled to the total amount of earnest money, $243,000, 

as liquidated damages. We agree.

“In the absence of an express provision to the contrary, a provision for the 

forfeiture of earnest money will be construed as a liquidated damages clause.” 

Berggren v. Hill, 401 Ill. App. 3d 475, 479 (2010). Under Illinois law, a liquidated 

damages provision in a real estate contract will be enforced if it can be shown: “(1) that 

the parties intended to establish an agreed upon amount of damages in the event of a 

breach; (2) that the amount provided as liquidated damages was reasonable at the time 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 7 of 9 PageID #:155
8

of contracting and bears some relation to the actual damages which might be sustained; 

and (3) that the actual damages would be difficult to prove and uncertain in amount.” 

Id. at 480. “The fact that the amount of liquidated damages stated in the provision does 

not equal a party's subsequent damages is not determinative of whether the provision is 

valid and enforceable.” Id.

The parties’ agreed Modification shows that the earnest money was intended to 

be liquidated damages. The Modification states:

[I]n the event of Buyers’ default prior to the deposit of the full 9% earnest 

money, the Buyers’ obligation to deposit the full 9% earnest money will 

remain intact; otherwise, seller shall retain all rights at law or in equity 

and, in the event of litigation, the non-prevailing party shall be responsible 

for payment in full of any and all costs for the prevailing party including, 

but not limited to, reasonable attorney’s fees and court costs.1

The plain language is clear that the earnest money was meant to be a liquidated damages 

provision, as the parties intended the full 9% to be paid even if Buyers defaulted. This 

amount was reasonable at the time the parties entered into the Contract. See Seigel v. 

Levy Org. Development Co., Inc., 182 Ill. App. 3d 859, 862 (1st Dist. 1989) (finding 

20% of purchase price reasonable). Additionally, at the time of contracting, the specific 

amount of damages was uncertain, and it was reasonable for the parties to bargain for 

liquidated damages to avoid the difficulty of ascertaining damages after a breach. 

 1 20-cv-2837, Dkt. # 1-2, ¶ 3. 

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 8 of 9 PageID #:156
9

Berggren, 401 Ill. App. 3d at 481–82. Accordingly, Geijsen is entitled to the full 

$243,000 as liquidated damages.

CONCLUSION

For the reasons mentioned above, the Court grants Geijsen’s motion for summary 

judgment. Geijsen is awarded $243,000 in liquidated damages. Coldwell Banker is 

ordered to give the $135,000 Initial Earnest Money to Geijsen. Buyers must pay the 

remaining $108,000. Judgment entered. Civil case terminated. It is so ordered.

Dated: 12/16/2020

________________________________

Charles P. Kocoras

United States District Judge

Case: 1:20-cv-02837 Document #: 26 Filed: 12/16/20 Page 9 of 9 PageID #:157