dissenting:
Because I believe that at the time the IOLA was opened, Nachamie and Guardian clearly understood that the IOLA would be treated as a special deposit comprised of funds held in escrow by an attorney for that attorney’s clients, I respectfully dissent.
Whether Nachamie’s IOLA account is a special or general deposit turns on the mutual understanding and intent of the parties. See, e.g., Keyes v. Paducah & I.R. Co., 61 F.2d 611, 613 (6th Cir.1932). Although the majority refers to this standard, I have difficulty discerning exactly what standard the majority applied in concluding that Peoples Westchester failed to sustain its burden of proving that Nachamie’s IOLA was a special deposit. The majority appears to shift from a standard requiring proof of an “intent to create a special deposit or an explicit agreement ... to segregate funds” to a standard requiring the parties to “explicitly provide” for a special deposit. Ultimately, the majority concludes that because there was “no such evidence or agreement,” the district court erred in treating the Nachamie account as a special deposit.
In any event, evaluating the facts of this case under the proper standard enunciated in Keyes, and considering the very nature of IOLA’s, I agree with the district court that there is persuasive evidence that Guardian and Nachamie intended to and did create a special deposit. In reaching this conclusion, Chief Judge Platt appreciated the practical realities of the lawyer-client-bank relationship underlying the deposit of funds in an IOLA.
*333In the instant ease, it is undisputed that Nachamie did not have title to the deposited funds, which belonged to her clients, and Guardian knew this. It is also clear that Guardian was aware that Nachamie’s account was an IOLA. Not only did Na-chamie complete an IOLA form apprising the bank of the nature of the account, but once the account was established, Guardian paid the interest earned to the state IOLA fund and sent monthly IOLA statements to the New York Board of Trustees. Significantly, the operation of an IOLA does not transfer title to the funds from the client to the attorney or in any way restrict the client’s access to the funds. The funds are in escrow and are to be returned to the attorney’s clients. Guardian therefore knew that the account’s principal was held for Nachamie’s clients, and that these funds were to be returned intact. These facts clearly support the conclusion that Guardian and Nachamie did not intend to create a general deposit, which would have entailed transferring title of the funds to Guardian, see Marine Bank v. Fulton Bank, 69 U.S. (2 Wall.) 252, 256, 17 L.Ed. 785 (1864), but instead intended to create a special deposit. See 5B Michie On Banks and Banking § 328 (1991).
Moreover, that Guardian paid interest on the IOLA, a fact the majority considers “strong evidence” of the intent to create a general deposit, is of no moment in determining the parties intent regarding the nature of the IOLA. The State of New York requires that interest be paid on funds deposited in all IOLA’s, see N.Y.Jud.Law § 497(6)(b) (McKinney Supp.1992) and it therefore would have contravened the IOLA statute for the parties to have established an IOLA that did not pay interest. The interest paid on these accounts covers administrative fees, with any excess paid to the state’s IOLA fund to support, among other things, the legal representation of indigents. See N.Y.State Fin.Law § 97-v(3)(b) (McKinney 1989).
Under these circumstances, I believe the majority erred in concluding that Peoples Westchester failed to rebut the presumption that the Nachamie IOLA was a general deposit. The record clearly established that Guardian (and Nachamie) knew and appreciated the special nature of the IOLA, and intended it to be a special deposit. For these reasons, I would affirm the judgment of district court granting Peoples West-chester’s motion for summary judgment.