MOHAMMED H. MIRZA d/b/a SAMIR FINANCIAL SERVICES, INC. v. Fleet Retail Finance, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2592
MOHAMMED H. MIRZA d/b/a SAMIR FINANCIAL SERVICES, INC.,
Plaintiff-Appellant,
v.
FLEET RETAIL FINANCE, I NC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 0566—Robert W. Gettleman, Judge.
____________
ARGUED DECEMBER 3, 2003—DECIDED JANUARY 12, 2004
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Before FLAUM , Chief Judge, and P OSNER and W ILLIAMS ,
Circuit Judges.
FLAUM , Chief Judge. In 2001, Mohammed Mirza filed
suit against Fleet Retail Finance seeking a $750,000
commission for allegedly acting as a loan finder for Fleet’s
$150,000,000 loan agreement with Phar-Mor, Inc. The
district court granted Fleet summary judgment on the issue
of whether Fleet breached its oral contract to pay Mirza
and found that Mirza could not show that he was the
procuring cause of the transaction between Fleet and Phar-
Mor. Mirza now appeals.

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2 No. 03-2592
I. BACKGROUND
Plaintiff-Appellant Mohammed Mirza is a loan finder.
Loan finders match commercial borrowers seeking
financing to willing lenders. Unlike loan brokers, loan
finders simply make introductions between the partie—they
do not become involved in the negotiations. Customarily,
loan finders require only an oral promise of payment from
their clients.
In 1998, Mirza introduced Barbara Anderson of
Fleet Retail Finance (then known as Bank of Boston) to
Shankar Krishnan, the Chief Financial Officer of Phar-Mor,
Inc. Loan negotiations between Fleet and Phar-Mor took
place for several months, but no agreement was reached
at that time. In the next two years, both Barbara Anderson
and Shankar Krishnan left their respective jobs.
In early June 2000, Cheryl Carner of Fleet Retail Finance
received a telephone call from a business contact who
informed her that Phar-Mor was again looking for financing.
Carner looked up Phar-Mor on Fleet’s computer database
and found Mirza’s name listed as the outside contact person.
Carner then called Phar-Mor and asked to speak to the
CFO. Phar-Mor’s receptionist directed Carner’s call to the
voicemail of the new CFO, Martin Seekely.
Prior to hearing back from Seekely, Carner called Mirza
and told him she was unable to communicate with Seekely.
Mirza promised to call Shankar Krishnan on Fleet’s behalf.
Mirza called Krishnan and encouraged him to tell Seekely
to return Carner’s call. According to Krishnan, he told
Mirza to call Seekely directly. According to Mirza, Krishnan
stated that Krishnan personally would call Seekely.
Seekely returned Carner’s call approximately two days
later and the two scheduled a meeting. Seekely does not
recall being urged to return the call by Mirza or Krishnan.
Mirza admits that by the time he talked to Seekely, Seekely
and Carner had already established the meeting.

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No. 03-2592 3
Prior to the meeting between Fleet and Phar-Mor, Mirza
sent Fleet a letter with information about Phar-Mor’s
borrowing needs. Carner used this information in preparing
for the meeting. After the meeting, Phar-Mor and Fleet
entered into a series of negotiations. Carner kept in touch
with Mirza throughout this time period to inform Mirza
of the status of the negotiations.
On July 6, 2000, Mirza sent Fleet a letter in which he
stated that he expected a fee of one-half percent of the total
line of credit at the closing of any loan between Fleet and
Phar-Mor. Prior to this, Mirza had discussed with both
Carner and Fleet’s president that he expected this amount
as compensation for his efforts, and both assured Mirza that
he would be paid.
Phar-Mor selected Fleet as its lender in November 2000.
However, Fleet never paid Mirza his one-half percent fee.
Mirza filed suit alleging that Fleet breached an oral contract
to compensate him for his services. Fleet moved for sum-
mary judgment, and the district court granted that motion,
concluding that no rational jury could find that Mirza was
the procuring cause of the transaction between Fleet and
Phar-Mor.
II. DISCUSSION
It is undisputed that Illinois law applies to this diversity
case. Under Illinois law, in order to earn a commission for
finding a business opportunity for another party, the finder
must show that his “services were the procuring cause
of that transaction.” See Modern Tackle Co. v. Bradley
Indus., Inc., 297 N.E.2d 688, 692, 11 Ill. App. 3d 502, 507
(Ill. App. Ct. 1973). The finder fulfills this obligation when
he “finds, introduces, and brings together parties to
a business opportunity, leaving the ultimate negotiation and
consummation of the business transaction to the principals.”

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4 No. 03-2592
1 Correctly, neither party argues that Mirza’s introduction of
Barbara Anderson and Shankar Krishnan in 1998 is relevant to
whether Mirza found or introduced Phar-Mor to Fleet for the
purposes of the 2000 transaction. Cf. Modern Tackle, 297 N.E.2d
at 694 (holding that a finder is not eligible for a commission where
more than a year elapsed between when he initially introduced
the parties and one party rejected the possibility of a deal and
when another finder reintroduced the parties).
See Ruskin v. Rodgers, 399 N.E.2d 623, 637, 79 Ill. App. 3d
941, 960 (Ill. App. Ct. 1979).
To avoid summary judgment, Mirza must show that there
is a genuine issue of material fact such that Fleet is not
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c). Mirza must therefore provide evidence that he either
found, introduced, or brought together Fleet and Phar-Mor
for the purposes of the 2000 transaction. Mirza has not met
this burden. It is undisputed that Mirza did not inform Fleet
that Phar-Mor was interested in obtaining a loan. That
information came from one of Carner’s business contacts. It
is also undisputed that Mirza was not the first to inform
Phar-Mor of Fleet’s interest in providing financing. That
was accomplished when Carner called Seekely and left him
a voicemail. Finally, there is no evidence that Mirza’s
involvement was the reason that Seekely returned Carner’s
phone call. Seekely does not recall being instructed to return
the call by either Mirza or Krishnan. Krishnan denies that
he ever contacted Seekely on this matter. And Mirza
acknowledges that by the time he spoke with Seekely,
Seekely and Carner had already arranged a meeting. Thus,
the parties to the transaction found each other, and there
is no evidence that Mirza’s involvement caused their
introduction.1
Mirza argues that he is still entitled to his commission
because he was instrumental to the completion of the
transaction. In support of this assertion, Mirza cites many

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No. 03-2592 5
2 This definition is confirmed in Mirza’s own brief, in which he
states that a “finder is an intermediary who contracts to introduce
parties to a business opportunity . . . .”
Illinois cases holding that a broker need not initially
introduce the parties to the transaction or to each other. See,
e.g., Schaller v. Weier, 744 N.E.2d 376, 380, 319 Ill. App. 3d
172, 178 (Ill. App. Ct. 2001) (holding that “it is not enough
that the broker was the first to bring the property to the
attention of the buyer. The broker must also show that the
sale was the proximate result of his or her efforts”) (citation
omitted); Bear Kaufman Realty, Inc. v. Spec Dev., Inc., 645
N.E.2d 244, 247, 268 Ill. App. 3d 898, 901 (Ill. App. Ct. 1994)
(holding that “a broker may be deemed the procuring cause
because of the negotiations he conducts in arranging the
transaction, although he had not initially introduced the
parties to the transaction or personally introduced them to
one another”).
While it is true that a broker need not introduce the
parties, Mirza has never claimed to be a loan broker. Loan
brokers and loan finders are similar, with the major distinc-
tion being that loan brokers participate in negotiating the
agreement between the parties. See Modern Tackle Co. v.
Bradley Indus., Inc., 297 N.E.2d 688, 692, 11 Ill. App. 3d
502, 507 (Ill. App. Ct. 1973). Thus, a loan broker may be a
procuring cause for a transaction and earn his commission
by conducting the negotiations on behalf of one of the
parties. But a loan finder’s job is defined by his ability to
find and introduce the parties to the transaction and each
other.2 Therefore, for Mirza to perform under the oral
contract engaging his services as a loan finder, it was
imperative for him to introduce Phar-Mor to Fleet.
We pause to note that even if Mirza had been engaged as
a loan broker, he still could not show that he was instrumen-
tal to the completion of the loan agreement between Phar-

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6 No. 03-2592
Mor and Fleet. Mirza did not participate in negotiations
between the parties. Furthermore, he did not have any
substantive contact with the parties during the last five
months of negotiations when several different lenders were
competing for Phar-Mor’s business. Although there is
evidence that Mirza communicated with the parties several
times and initially provided Fleet with information about
Phar-Mor’s borrowing needs, a broker must “show that the
sale was the proximate result of his or her efforts.” See
Schaller v. Weier, 744 N.E.2d 376, 380, 319 Ill. App. 3d 172,
178 (Ill. App. Ct. 2001). Mirza’s limited involvement in the
transaction does not meet this burden.
III. CONCLUSION
Because Mirza cannot show that he was the procuring
cause of the transaction between Fleet Retail Finance and
Phar-Mor, Inc., the district court’s grant of summary
judgment in favor of Fleet is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-12-04

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