A broker has been found to be the procuring cause of a consummated transaction even when the transaction was concluded without the presence or knowledge of the broker. Bear Kaufman Realty, Inc. v. Spec Development, Inc., 268 Ill. App.3d 898, 901-02, 645 N.E.2d 244, 247 (1994). A broker has also been found to be the procuring cause when the broker found and produced a ready, willing, and able buyer but negotiations continued past the ending date of the agreement between the broker and the seller.
In support of this assertion, Mirza cites many 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, 319 Ill.App.3d 172, 178, 253 Ill.Dec. 94, 744 N.E.2d 376, 380 (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., 268 Ill.App.3d 898, 901, 206 Ill.Dec. 239, 645 N.E.2d 244, 247 (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.
Breach of contract "specifically has been found to not warrant the imposition of a constructive trust." Amendola v. Bayer, 907 F.2d 760, 763 (7th Cir. 1990) (citing cases); Bear Kaufman Real Inc. v. SPEC Development Inc., 645 N.E.2d 244, 250 (Ill.App. 1 Dist. 1994), appeal denied, 652 N.E.2d 338 (Ill. 1995). No party involved in this matter has engaged in "wrongdoing such as actual or constructive fraud, breach of fiduciary duty, duress, coercion, or mistake."
Nor will a breach of contract give rise to a constructive trust. In re Stotler and Co., 144 B.R. 385, 390 (N.D.Ill.1992); Bear Kaufman Realty, Inc. v. Spec Development, Inc., 268 Ill.App.3d 898, 906, 206 Ill.Dec. 239, 645 N.E.2d 244 (1994). Tiare argues that the alleged facts support a finding of wrongdoing against the Defendants because the Defendants' claimed ownership of the Mark-up Amount is based on mistake or theft, since "a debtor cannot improve its position and create rights to property that do not exist outside of bankruptcy."
Ct. 1993); Frederickson v. Blumenthal, 648 N.E.2d 1060, 1061 (Ill.App.Ct. 1995) (same); Almar Communs. v. Telesphere Communs. (In re Telesphere Communs.), 205 B.R. 535, 545 (N.D. Ill. 1997) (same); Dunham v. Kisak, No: 98-CV-0338-PER, 1998 U.S. Dist. LEXIS 22660, at *16 (S.D. Ill. Dec. 16 1998) (same);Smithberg v. Ill. Mun. Ret. Fund, 735 N.E.2d 560, 566 (Ill. 2000) (same); Scholes v. Lehmann, No. 90 C 3828, 1993 U.S. Dist. LEXIS 4234, at *20 (N.D. Ill. Mar. 31, 1993) ("A court imposes a constructive trust when it finds that it would be inequitable for the party in possession of wrongfully obtained property to retain possession of the property."); In re Foos, 183 B.R. at 159 (citing the fact that a constructive trust "does not arise until a court decrees it" as an indication that a constructive trust is a remedy).Anderson v. Lybeck, 154 N.E.2d 259, 262 (Ill. 1958); Perry v. Wyeth, 184 N.E.2d 861, 863 (Ill. 1962) (same); Pucci v. Litwin, 828 F. Supp. 1285, 1301 (N.D. Ill. 1993) (same); Bear Kaufman Realty v. Spec Dev., 645 N.E.2d 244, 250 (Ill.App.Ct. 1994). The requirement that fraud be "proved" suggests that the party wishing to invoke a constructive trust must go before a court to create the trust.
Relying on cases involving the commissions of real estate brokers, plaintiff argues that it is entitled to the renewal commissions because it was the "procuring cause" of the insurance sales by defendant to Prairie. See Bear Kaufman Realty v. Spec Development, 268 Ill. App.3d 898, 645 N.E.2d 244 (1994); Edens View Realty Investment, Inc. v. Heritage Enterprises, Inc., 87 Ill. App.3d 480, 408 N.E.2d 1069 (1980). Plaintiff has cited no case applying the "procuring cause" rule to an insurance agent's right to a commission.
With regard to Podolsky's first contention, it relies on the well-established rule that when a broker procures a "ready, willing and able" buyer during the time of the agency, the seller of land is obligated to pay the broker's commission regardless of whether it decides to sell. E.g. Bear Kaufman Realty, Inc. v. Spec Development, Inc., 268 Ill. App.3d 898, 902, 645 N.E.2d 244, 247 (1994); Kennedy, Ryan, Monigal Associates, Inc. v. Watkins, 242 Ill. App.3d 289, 294, 609 N.E.2d 925, 928 (1993); Zink v. Maple Investment Development Corp., 247 Ill. App.3d 1032, 1037, 617 N.E.2d 1269, 1273 (1993); Restatement (Second) of Agency § 445, Comment d (1958) ("[i]f the principal has given to the broker what purports to be his complete terms and the broker produces a customer ready, able, and willing to enter into the transaction on those terms, the principal cannot avoid paying the agreed commission by declining to enter into the transaction, or by insisting upon variations of or additions to such prescribed terms which the customer is unwilling to accept"). However, Podolsky does not seriously contend that it procured Town Country, nor would we accept such an argument if made, since it is clear that Town Country was aware that the property was for sale before Podolsky even entered into the listing agreement with the Discipios and Podolsky never had any contact with Town Co
A broker is also entitled to a commission if the owner acts in bad faith to cause the sale to occur after the life of the agreement. Restatement (Second) of Agency § 446, Comment e (1958); Bear Kaufman Realty, Inc. v. Spec Development, Inc., 268 Ill. App.3d 898, 902-04, 645 N.E.2d 244, 247-48 (1994). Although the circumstances here are suspicious, there is no evidence that either RE/MAX or the Armstrongs dealt with the Millers prior to August 13, the effective date of the withdrawal agreement (the date the listing agreement was terminated).