CitiMortgage, Inc. v. Sass Muni V (In re Will Cnty. Collector)

• Decision Date: 16 April 2018
• Docket Number: Appeal No. 3–16–0659
• Citation: 101 N.E.3d 788,2018 IL App (3d) 160659
• Parties: IN RE APPLICATION OF the WILL COUNTY COLLECTOR (Citimortgage, Inc., Petitioner–Appellee, v. Sass Muni V, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2018 IL App (3d) 160659

101 N.E.3d 788

IN RE APPLICATION OF the WILL COUNTY COLLECTOR(Citimortgage, Inc., Petitioner–Appellee,

v.Sass Muni V, Respondent–Appellant).

Appeal No. 3–16–0659

Appellate Court of Illinois, Third District.

Opinion filed April 16, 2018

Timothy A. Clark, of McGrath & Clark PC, of Manhattan, for appellant.

Jeffrey S. Blumenthal and Rodney C. Slutzky, of Slutzky & Blumenthal, of Chicago, for appellee.

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The circuit court entered an order directing that a tax deed be issued to the respondent, Sass Muni V (SASS), as to a parcel of real property. More than two years later, the petitioner, Citimortgage, Inc. (Citi), filed a petition seeking relief from the circuit court's order pursuant to section 2–1401 of the Illinois Code of Civil Procedure ( 735 ILCS 5/2–1401 (West 2014) ). In its petition, Citi argued in the alternative that: (1) the tax deed was void with no right to reimbursement under section 22–85 of the Illinois Property Tax Code (Code) (35 ILCS 200/22–85 (West 2012) ) because SASS failed to record the deed within one year of the expiration of the redemption period; or (2) the circuit court's order issuing the tax deed was void because the tax sale notices served by SASS were so devoid of any meaningful information as to violate due process.

¶ 2 The parties filed cross-motions for summary judgment on Citi's petition. The circuit court granted Citi's motion for summary judgment and denied SASS's motion for summary judgment. SASS filed a motion to reconsider, which the circuit court denied. SASS appeals the circuit court's judgment.

¶ 3 FACTS

¶ 4 On July 18, 2011, SASS filed a petition for a tax deed alleging that: (1) SASS had purchased the delinquent 2007 real estate taxes for a property in Will County; (2) SASS had served or diligently attempted to serve a tax sale notice to all persons or parties with an interest in the property, as required by section 22–30 of the Code ( 35 ILCS 200/22–30 (West 2012) ); and (3) the property had not been redeemed from sale by any such party. On July 19, 2012, the circuit court entered an order granting SASS's petition and directing the issuance of a tax deed to SASS. The circuit court's July 19, 2012, order stated that SASS had "either served or exercised diligent effort in attempting to find and serve" a timely tax sale notice on any and all persons or parties entitled to such notice. The order further stated that the real estate at issue had not been redeemed from the tax sale held on November 6, 2008, and that "the time to redeem this property from the sale expired on November 3, 2011." SASS recorded the deed on September 7, 2012.

¶ 5 On September 12, 2014, more than two years after the circuit court entered the order directing the issuance of a tax deed, Citi filed a petition for relief from that order under section 2–1401 of the Code of Civil Procedure. On December 9, 2014, Citi filed an amended petition under section 2–1401 arguing in the alternative that: (1) the tax deed was void with no right to reimbursement pursuant to section 22–85 of the Code because it was not recorded within one year of the expiration of the redemption period; or (2) the circuit court's order was void because the tax sale notices contained the incorrect property PIN number and incorrectly described the property, and were therefore so devoid of meaningful information as to violate due process. Citi filed a motion for summary judgment in support of its petition.

¶ 6 SASS filed a cross-motion for summary judgment arguing that: (1) the circuit court's order was not void; (2) Citi had failed to file its petition within the two-year time limit prescribed by section 2–1401 and failed to demonstrate diligence as required by that section; and (3) Citi had failed to establish that it was entitled to any of the four grounds for relief listed in section 22–45 of the Code ( 35 ILCS 200/22–45 (West 2014) ). The circuit court informed the parties that it would consider the pleadings and issue its ruling by mail without hearing oral argument.

¶ 7 On March 22, 2016, the circuit court e-mailed both parties' counsel stating that it had reviewed the pleadings and was "inclined to find in favor of [Citi] based on inadequate notice of tax sale, and declare void the July 19, 2012, order and the September 7, 2012, tax deed." The court asked the parties to submit an order consistent with the court's direction. The parties submitted a draft order, which the court signed on March 28, 2016. The order contained a finding that the tax sale notices were insufficient, but did not include an express finding that the tax deed was void with no right to reimbursement because it was not recorded within one year of the expiration of the redemption period.¹ On June 16, 2015, after Citi had tendered certain monies as required by section 22–80 of the Code ( 35 ILCS 200/22–80 (West 2014) ), the circuit court entered a final order declaring both the circuit court's order and the tax deed void.

¶ 8 Thereafter, SASS filed a motion to reconsider. The circuit court conducted a hearing on SASS's motion. On September 28, 2016, the circuit court issued an order denying SASS's motion to reconsider. The circuit court's September 28, 2016, order provided that the July 19, 2012, court order issuing the tax deed was void "for lack of adequate service and notice." Moreover, in the September 28, 2016, order, the circuit court expressly modified its prior summary judgment order "on its own motion, * * * nunc pro tunc , to reflect that the tax deed was void without right of reimbursement."

¶ 9 This appeal followed.

¶ 10 ANALYSIS

¶ 11 On appeal, SASS argues that the circuit court erred in granting Citi's motion for summary judgment and in denying SASS's motion for summary judgment. Specifically, SASS challenges the circuit court's rulings that the tax deed was void without right of reimbursement and that the tax sale notices were insufficient.

¶ 12 When a section 2–1401 petition raises a purely legal challenge to a judgment by alleging that the judgment is void, we review the circuit court's ruling on the petition de novo. Warren County Soil & Water Conservation District v. Walters , 2015 IL 117783, ¶ 47, 392 Ill.Dec. 523, 32 N.E.3d 1099 ; Tuna v. Airbus, S.A.S. , 2017 IL App (1st) 153645, ¶ 34, 415 Ill.Dec. 24, 81 N.E.3d 546. Moreover, when parties file cross-motions for summary judgment, as here, they agree that only a question of law is involved and invite the court to decide the issues based on the record. Pielet v. Pielet , 2012 IL 112064, ¶ 28, 365 Ill.Dec. 497, 978 N.E.2d 1000. When a case is decided through summary judgment, our review is de novo . Id. ¶ 30.

¶ 13 As noted above, the circuit court implicitly accepted Citi's argument that the tax deed was void without right of reimbursement under section 22–85 of the Code because the deed was not recorded within one year of the expiration of the redemption period. Section 22–85 provides, in pertinent part, that

"[u]nless the holder of the certificate purchased at any tax sale under this Code takes out the deed in the time provided by law, and records the same within one year from and after the time for redemption expires, the certificate or deed, and the sale on which it is based, shall, after the expiration of the one year period, be absolutely void with no right to reimbursement." 35 ILCS 200/22–85 (West 2012).

The length of the redemption period is set by statute. See 35 ILCS 200/21–350(b) (West 2012). However, the expiration of the statutory redemption period may be extended if the certificate holder (i.e. , the purchaser of the property during the tax sale or the purchaser's assignee) files a notice extending the redemption period before the redemption period expires. 35 ILCS 200/21–350(c) (West 2012); 35 ILCS 200/21–385 (West 2012) ; In re Application of the County Treasurer , 2012 IL App (1st) 101976, 359 Ill.Dec. 87, 966 N.E.2d 408 ( CCPI ).

¶ 14 Because the property at issue in this case was improved with a single family dwelling at the time of the tax sale, the statutory redemption period expired two years and six months after the date of sale. 35 ILCS 200/21–350(b) (West 2012). The sale occurred on November 6, 2008. Thus, absent a valid extension, the redemption period expired on May 6, 2011. The certificate holder had to record the deed within one year of that date (i.e ., by May 6, 2012) or the deed, and the tax sale upon which it was based, would be rendered null and void. 35 ILCS 200/22–85 (West 2012). In this case, the deed was not recorded until September 7, 2012. Thus, unless the certificate holder filed a timely notice to extend the statutory redemption period, the tax sale deed at issue in this case is a nullity.

¶ 15 SASS maintains that it filed notices extending the redemption period to November 3, 2011. In support of this assertion, SASS produced two "Extension List Reports" purporting to extend the expiration of the redemption period. Both reports indicate that the purported extensionswere filed by "Sass Muni V," "[f]or Sass Fund." The first report, which purported to extend the redemption period for the property at issue to July 12, 2011, listed "MUNI V dtr" under the "WinBid" column. The second report, which purported to extend the redemption period for the same property to November 3, 2011, listed "US BANK–CUST/SASS MUNI V dtr" in the "WinBid" column. SASS argues that these notices validly extended the redemption period to November 3, 2011, which gave SASS until November 3, 2012, to record the deed.

¶ 16 As noted above, however, only the certificate holder (i.e ., the purchaser of the property at the tax sale or the assignee of the purchaser) may extend the redemption period. 35 ILCS 200/21–350(c) (West 2012); 35 ILCS 200/21–385 (West 2012) ; CCPI , 2012 IL App (1st) 101976, ¶¶ 39–41, 359 Ill.Dec. 87, 966 N.E.2d 408. Citi argues that the extension notices filed by SASS had no legal effect...