Cook County Collector, Application of

• Decision Date: 28 August 1991
• Docket Number: Nos. 1-89-2647,1-89-2648,s. 1-89-2647
• Citation: 228 Ill.App.3d 719,593 N.E.2d 538
• Parties: , 170 Ill.Dec. 649 In re Application of the COOK COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985 and Petition for Tax Deed of Leslie C. Barnard d/b/a Elsie Bee (Standard Bank and Trust Company as Trustee Under Trust Number 5812, Petitioner-Appellee, v. Leslie C. Barnard d/b/a Elsie Bee, Respondent-Appellant; Joseph Berke and American National Bank and Trust Company as Trustee Under Trust Number 108-084-00, Intervenors).
• Court: United States Appellate Court of Illinois

Page 538

593 N.E.2d 538

228 Ill.App.3d 719, 170 Ill.Dec. 649

In re Application of the COOK COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985 and Petition for Tax Deed of Leslie C. Barnard d/b/a Elsie Bee (Standard Bank and Trust Company as Trustee Under Trust Number 5812 Petitioner-Appellee, v. Leslie C. Barnard d/b/a Elsie Bee, Respondent-Appellant Joseph Berke and American National Bank and Trust Company as Trustee Under Trust Number 108-084-00, Intervenors).

Nos. 1-89-2647, 1-89-2648.

Appellate Court of Illinois First District, Third Division.

Aug. 28, 1991.

Rehearing Denied May 8, 1992.

Benitta Berke, Chicago, for respondent-appellant Joseph berke.

Herbert Lesser, Chicago, for petitioner-appellee.

Presiding Justice CERDA delivered the opinion of the court:

Respondent, Leslie C. Barnard, doing business as Elsie Bee, and intervenors, Joseph Berke and American National Bank and Trust Company as trustee under trust number 108-084-00, appeal from an order that vacated a tax deed in favor of the original owner of land trust property that had been sold for the nonpayment of real estate taxes.

On December 30, 1986, the property, which was located in Cook County and identified with the permanent index number 27-08-300-002-0000, was sold for $774.80 by the Cook County Treasurer and Ex-Officio County Collector to respondent pursuant to an order of judgment and sale finding a failure to pay 1985 taxes. A "take notice" dated April 8, 1987, was given to Midwest Bank in Elmwood Park notifying it of the tax sale of the property to respondent. On August 30, 1988, respondent filed an extension of the time of redemption to February 15, 1989.

On September 28, 1988, respondent filed a petition for a tax deed. Two take notices filed September 28, 1988, were sent by certified mail to Heritage Standard Bank & Trust Company of Evergreen Park on September 29, 1988, by the clerk of the circuit court of Cook County. The notices stated that the property had been sold for delinquent taxes and that redemption could be made at any time on or before February 15, 1989. The bank received the notices on October 1, 1988. In addition, the bank was served with two notices on October 4, 1988.

On February 21, 1989, respondent applied for an order directing the county clerk to issue a tax deed. Respondent's supporting affidavit swore that: (1) affiant viewed the property between three and five months prior to the expiration of the time of redemption and found that the property was vacant and that no one occupied the property; (2) prior to the expiration of the time of redemption, affiant or another agent made a search of the appropriate records to determine parties interested in the property and found that those parties were Stanley T. Kusper, Heritage Standard Bank & Trust Company, and Heritage Standard Bank & Trust Company trust number 5812; (3) written notice was served upon all the interested persons by personal service followed by certified mailing of the notice; (4) a notice of the purchase at the tax sale was published on November 3, 4, and 7, 1988; and (5) notices were mailed within five months after the sale to the party in whose name the taxes were last assessed.

On February 27, 1989, respondent testified at a hearing that he inspected the property several times during the notice serving period. There were about 38 acres of vacant land which had improvements consisting mainly of a water main. There were no driveways, and "it appear[ed] as if there was some farming on the property." He testified that to the best of his knowledge there were no occupants. In addition, respondent testified to the following:

"THE COURT: Any indication that someone was evidencing some interest in the property by usage, by structure, by whatever?

A. It appeared to me that there was someone doing some farming on the property but no one visible by way of any signs or any houses or buildings on the property.

THE COURT: Were you able to ascertain who that party may have been if indeed there was some farming?

A. No, I was not."

Respondent also testified, in answer to a question about what steps he took to determine who had an interest in the property, that he examined public records and that he ordered several documents. He also testified that the record owner of the property was Heritage Standard Bank as trustee under trust number 5812 and that Midwest Bank was the last assessee.

Respondent's attorney stated at the hearing that: (1) pursuant to sections 263 and 266 (of the Revenue Act) (Ill.Rev.Stat.1989, ch. 120, pars. 744, 747), take notices were served upon all the parties in interest; (2) notice was served on October 4, 1988, on the record owner, Heritage Standard Bank, and "those" were all the parties in interest; (3) the subsequent taxes due for the years 1986 and 1987 had been paid; and (4) the first installment of 1988 taxes had not been paid. Submitted into evidence were proofs from the county clerk's office of these subsequent tax payments. The proofs were dated February 27, 1989, and indicated that Gallagher & Henry ("G & H") had paid the taxes. The tax bill for the first installment of 1988 taxes was addressed to G & H at a Countryside, Illinois address.

The trial court at the February 27, 1989, hearing found that there had been due diligence in inquiring of the whereabouts of the parties entitled to notice under sections 241a, 263, and 266 of the Revenue Act (Ill.Rev.Stat.1989, ch. 120, pars. 722a, 744, 747). On February 28, 1989, an order was entered directing issuance of a tax deed to respondent. The trial court found that: (1) it had jurisdiction; (2) the tax sale notices were served in the manner and time required; (3) all persons entitled to notice had received due notice of the filing and the time of hearing of the petition; (4) the property had not been redeemed; and (5) the time for redemption expired on February 15, 1989.

On May 2, 1989, Heritage Standard Bank filed a petition pursuant to section 2-1401(f) of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1401(f)) for a declaration that the order directing the issuance of a tax deed was void. Copies of the petition were mailed to respondent in care of its attorney and to the attorney.

Upon leave of court, a second petition to vacate was filed by new attorneys for Heritage Standard Bank and Trust Company on May 11, 1989, but no proof of service appears in the record.

Robert E. Gallagher swore in a supporting affidavit that he was the managing partner of Orchard Hill Building Company, which was the beneficiary of the land trust that owned the property. All notices would have come to him, and he first learned of the tax deed on April 18, 1989.

Respondent filed a special and limited appearance and a motion to strike the section 2-1401 petition for insufficiency of service of process. Respondent argued that his attorney received a notice of motion but was not authorized to accept process or notice on his behalf, that he was not properly served with notice of the petition, and that the trial court lacked personal jurisdiction over him. The motion to strike was denied.

A temporary restraining order was entered that enjoined respondent from transferring or dealing with the property. Respondent moved to dissolve the temporary restraining order, but the order was reconfirmed and continued.

A third section 2-1401 petition was filed by Standard Bank & Trust Company, f/k/a Heritage Standard Bank and Trust ("the bank"), on May 23, 1989. Among its allegations were that: (1) the entire property was being extensively farmed; (2) the fact that the property was assessed as farmland was readily discoverable in the public records; (3) the tax buyer had the duty to exercise due diligence in discovering all pertinent facts; (4) the hearing was held only two years and two months from the date of the tax sale; (5) the trial court was not advised on February 27, 1989, that the redemption period was three years, that the property was assessed as farmland, and that the entire property was being extensively farmed; (6) the beneficiary of the land trust did not receive notice of the tax deed proceeding and therefore did not appear at the February 27, 1989, hearing; (7) even if the beneficiary had received notice, the notices were erroneous and void because they failed to properly set forth the correct redemption period; (8) an April 14, 1989, deed from respondent conveyed the property to American National Bank & Trust Company of Chicago as trustee under trust number 10805406; (9) an April 17, 1989, deed conveyed the property to the same bank into trust number 108-084-00; and (10) the order issuing a tax deed was void ab initio because the statute provided for a three year period of redemption and because the redemption period would not have expired until December 30, 1989.

The third petition was supported by another affidavit of Robert E. Gallagher who swore that: (1) he was the managing partner of Orchard Hill Building Company ("Orchard Hill"); (2) Orchard Hill was the beneficiary of land trust number 5812; and (3) he did not receive notice of the tax sale or of any expiration of a period of redemption.

On May 30, 1989, Joseph D. Berke, the sole beneficiary of American National Bank and Trust Company of Chicago land trust number 108-084-00, filed a petition to intervene. He alleged that on April 18, 1989, he paid $1.2 million in consideration for the property, that the property had been conveyed into the land trust by respondent, and that he was a bona fide purchaser for value within the meaning of section 2-1401(e) of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1401(e)).

On May 30, 1989, respondent filed a motion to strike and dismiss the section 2-1401 petition. Respondent swore in a supporting affidavit that: (1) he inspected the property...