In re Application of County Collector, 97165.

• Decision Date: 20 October 2005
• Docket Number: No. 97165.,97165.
• Citation: 217 Ill.2d 1,838 N.E.2d 907
• Parties: In re APPLICATION OF the COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes and/or Special Assessments for the Years 1991 and Prior Years (Apex Tax Investments, Inc., et al., Appellees, v. Mary Lowe, Deceased, by Patrick T. Murphy, Cook County Public Guardian and Supervised Administrator of the Estate of Mary Lowe, Appellant).
• Court: Illinois Supreme Court

838 N.E.2d 907

217 Ill.2d 1

In re APPLICATION OF the COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes and/or Special Assessments for the Years 1991 and Prior Years (Apex Tax Investments, Inc., et al., Appellees, v. Mary Lowe, Deceased, by Patrick T. Murphy, Cook County Public Guardian and Supervised Administrator of the Estate of Mary Lowe, Appellant).

No. 97165.

Supreme Court of Illinois.

October 20, 2005.

Patrick T. Murphy, Charles Perez Golbert, Office of the Cook County Public Guardian, Chicago, for appellant.

Denise Brewer & Associates, Deborah L. King, Chicago, for appellees.

Mark J. Heyrman, Virginia Kim, Chicago, for amici curiae Mental Health Association in Illinois et al.

Justice McMORROW delivered the opinion of the court:

Apex Tax Investments, Inc. (Apex), purchased the home of Mary Lowe at a tax sale and was issued a tax deed for the property by order of the circuit court of Cook County. Subsequently, the Cook County public guardian, on behalf of the estate of Mary Lowe, filed an amended petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)) and section 22-45 of the Property Tax Code (35 ILCS 200/22-45 (West 1994)) seeking to have the tax deed set aside. In the amended petition, the public guardian alleged that at the time Apex attempted to provide Lowe with the notice required by section 22-10 of the Property Tax Code (35 ILCS 200/22-10 (West 1994)), Lowe was hospitalized for schizophrenia. The public guardian further alleged that Apex should have known of Lowe's mental impairment based on notations made by a mail carrier on the envelopes of two letters that were mailed to Lowe but returned, undelivered. Based on these allegations, the public guardian contended that Apex had not complied with the statutory notice requirements of the Property Tax Code and that Lowe's "due process right to adequate notice" had been violated.

Following a hearing, the circuit court denied the public guardian's petition. The appellate court affirmed. No. 1-02-1101 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

The procedures governing tax sales and the issuance of tax deeds are set forth in article 21, division 4, and article 22 of the Property Tax Code. 35 ILCS 200/21-190 et seq., 22-5 et seq. (West 1994). Pursuant to section 21-190, the county collector may offer property for public sale when judgment has been rendered against that property for nonpayment of real estate taxes. The buyer of property at such a sale does not receive title to the property but, instead, receives a "certificate of purchase." 35 ILCS 200/21-250 (West 1994). The issuance of a certificate of purchase does not affect the delinquent property owner's legal or equitable title to the property. Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill.2d 99, 101, 251 Ill.Dec. 654, 741 N.E.2d 248 (2000). The property owner has the right to redeem the property, upon the payment of the tax arrearage and costs, until such time as the redemption period expires. 35 ILCS 200/21-345 through 21-355 (West 1996); Ill. Const. 1970, art. IX, § 8.

"[W]ithin 5 months but not less than 3 months prior to the expiration of the redemption period," the tax purchaser may file a petition in the circuit court asking the court to enter an order directing the county clerk to issue a tax deed to the property. 35 ILCS 200/22-30 (West 1994). Before the tax purchaser may receive such an order, however, the redemption period must expire without any redemption taking place. In addition, as a condition to receiving a tax deed order, the tax purchaser must prove to the circuit court that it has strictly complied with the statutory notice provisions set forth in sections 22-10 through 22-25 of the Property Tax Code (35 ILCS 200/22-10 through 22-25 (West 1994)). See 35 ILCS 200/22-40 (West 1994).

In the case at bar, Apex purchased a parcel of residential real estate at the annual Cook County tax sale held on March 3, 1993. The property was improved with a single-family, split-level town house. On October 5, 1995, Apex filed a petition for a tax deed to the property in the circuit court of Cook County. Attached to the petition was Apex's certificate of purchase, which indicated that the property had been purchased for $347.61, the amount of a 1991 tax delinquency. The petition also stated that the redemption period expired by extension on February 21, 1996. See 35 ILCS 200/21-385 (West 1994). No redemption occurred by that date, and Apex's petition proceeded to an ex parte hearing before Judge Marjan Staniec on March 18, 1996. See 35 ILCS 200/22-40 (West 1994).

At the hearing, Apex's attorney informed the court about the efforts that had been made to comply with the statutory notice provisions of the Property Tax Code. Apex's attorney told the court that, from a tract search, Apex had learned that the property at issue was owned by two individuals, Mary Lowe and William Austin, and that this information was conveyed to the Cook County sheriff and the clerk of the circuit court of Cook County. On October 26, 1995, in accordance with section 22-15 of the Property Tax Code (35 ILCS 200/22-15 (West 1994)), the Cook County sheriff attempted to personally serve Lowe, Austin and "occupant" with the "take notice" set forth in section 22-10. The section 22-10 take notice must be given "not less than 3 months nor more than 5 months prior to the expiration of the period of redemption." 35 ILCS 200/22-10 (West 1994). The notice must state, inter alia, that the property at issue has been sold for delinquent taxes, that the period of redemption expires on the date listed, that a petition for a tax deed has been filed, and that a hearing on the tax deed petition will be held at the time and place listed. See 35 ILCS 200/22-10 (West 1994).

As required by statute (see 35 ILCS 200/22-20 (West 1994)), the Cook County sheriff filed the returns of service for the section 22-10 take notices with the clerk of the circuit court. The returns of service were filed with the clerk on November 9, 1995, and were admitted into evidence during the hearing on Apex's petition. On each of the returns of service, the deputy sheriff who attempted to serve the notice wrote "House vacant per neighbors." The deputy sheriff also placed a mark next to the word "MOVED" on the preprinted form to indicate the reason why notice was not served.

Having failed to effect personal service on Austin, Lowe or "occupant," the sheriff also sent take notices to them at the property's address by certified mail, return receipt requested. See 35 ILCS 200/22-15 (West 1994). These three notices were returned to the sheriff, undelivered, and were subsequently filed with the clerk of the circuit court. At the hearing on Apex's petition, the envelopes for the three notices were admitted into evidence. The record on appeal contains the original, unopened envelope addressed to Austin, and photocopies of the envelopes addressed to Lowe and "occupant."

All three envelopes are postmarked November 8, 1995, and are stamped "returned to sender." On the envelope addressed to Austin, the word "deceased" is handwritten in pencil on the left side of the envelope. The sheriff filed this envelope with the clerk of the circuit court on November 22, 1995. The envelopes addressed to Lowe and "occupant" bear a stamp which indicates that attempts were made to deliver the notices on November 16, December 11, and December 18, 1995. In addition, on the left side of these two envelopes, written vertically, is a handwritten notation which reads: "Person is Hospitalized." Underneath these notations on both envelopes, also handwritten, is a number, "2719," and the letters "JHT." The notations on both of the envelopes have a line drawn through them and are obscured, in part, by the circuit court clerk's filing stamp and the post office's "returned to sender" stamps. The sheriff filed the envelopes addressed to Lowe and "occupant" with the clerk of the circuit court on January 2, 1996. Neither Apex's attorney nor the circuit court mentioned the notations on the envelopes at any time during the hearing on Apex's tax deed petition.

In accordance with section 22-25 of the Property Tax Code (35 ILCS 200/22-25 (West 1994)), the clerk of the circuit court of Cook County also sent take notices by certified mail addressed to Lowe, Austin and "occupant." Like the notices sent by the sheriff, these notices were returned, undelivered. The notices were filed in the court record (see 35 ILCS 200/22-25 (West 1994)) and were admitted into evidence at the hearing. The envelopes for the notices sent to Austin and "occupant," as well as a photocopy of the envelope sent to Lowe, are part of the record on appeal. All three envelopes are postmarked November 8, 1995, and are stamped "returned to sender." Notations on the envelopes indicate that attempts were made to deliver the notices on November 9, November 15, and November 24, 1995. The clerk of the circuit court filed the notices addressed to Lowe and "occupant" in the court record on November 29, 1995, and the notice addressed to Austin on November 30, 1995.

Pursuant to sections 22-15 and 22-20 of the Property Tax Code (35 ILCS 200/22-15, 22-20 (West 1994)), Apex also provided publication notice to Lowe and Austin. The same notices that were sent by mail to the property were published in the Chicago Daily Law Bulletin on October 11, October 12, and October 13, 1995.

During the hearing on Apex's petition, Apex's attorney informed the court that Mary Lowe had conveyed her home through a quitclaim deed to herself and Austin, as joint tenants, in 1993. Apex's attorney explained to the court that, "attempting to be diligent in ascertaining the whereabouts" of Lowe and Austin, the Cook County sheriff had personally served the law firm...