In re Application of The County Treasurer And Ex Officio County Collector of Cook County

• Decision Date: 25 August 2011
• Docket Number: No. 1–10–1966.,1–10–1966.
• Citation: 955 N.E.2d 669,2011 IL App (1st) 101966,353 Ill.Dec. 202
• Parties: In re APPLICATION OF the COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, for Order of Judgment and Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 2004 (Glohry, LLC, Petitioner–Appellant, v. OneWest Bank and Graciela Garcia, Respondents–Appellees).
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 101966

955 N.E.2d 669

353 Ill.Dec. 202

In re APPLICATION OF the COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, for Order of Judgment and Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 2004 (Glohry, LLC, Petitioner–Appellant,

v.OneWest Bank and Graciela Garcia, Respondents–Appellees).

No. 1–10–1966.

Appellate Court of Illinois, First District, Fourth Division.

Aug. 25, 2011.

Terry Carter, Carter & Reiter, Ltd., Richard D. Glickman, Chicago, IL, for Petitioner–Appellant.Jeffrey S. Blumenthal, Slutzky & Blumenthal, Chicago, IL, for Defendant–Appellee.

OPINION

Presiding Justice LAVINdelivered the judgment of the court, with opinion.

¶ 1 In a scenario that has been replayed countless times in our troubled real estate economy, Graciela Garcia failed to pay a year's real estate taxes ($1383.50) on her mortgaged property, which opened an opportunity for an attempted tax deed purchase of her two-flat apartment building on Chicago's Southwest side.This appeal arises from the trial court's denial of a tax deed pursuant to the Property Tax Code(Code).35 ILCS 200/1–1 et seq.(West 2008).The attempted purchaser of the property, tax deed petitionerGlohry, LLC, asserts the trial court erred by denying its application and petition for a tax deed.We affirm.

¶ 2 I. BACKGROUND

¶ 3 The essential facts in this appeal are generally undisputed.Graciela Garcia was the record owner of a two-flat building with a basement located at 2943 West 43rd Street in Chicago.To pay for the property in June of 2005, she obtained a mortgage from a mortgage broker, executed two promissory notes in favor of MILA, Inc.(MILA), and granted two mortgages to Mortgage Electronic Registration Systems, Inc.(MERS), which has at all times remained the mortgagee of record.The first mortgage document identified MILA as the lender and stated that MERS was acting “solely as nominee for Lender and Lender's successors and assigns.”The second mortgage document contained nearly identical language.Both mortgage documents provided the address and phone number for MERS, as well as an 18–digit “MIN,” an acronym for “mortgage identification number.”On August 1, 2005, MILA assigned both promissory notes to IndyMac Bank, F.S.B.(Indy).Indy subsequently assigned the two notes to Deutsche Bank National Trust Company(Deutsche), the current noteholder, on October 21, 2005.Indy remained the servicer of the loans.

¶ 4 On June 21, 2006, Ridge TP, LLC(Ridge), purchased Garcia's property at a public auction due to unpaid 2004 taxes, and a certificate of purchase was issued to Ridge on August 15, 2006.The parties agree that the original statutory period in which the property could be redeemed by Garcia or other interested parties was two years and six months from the date of sale.See35 ILCS 200/21–350(b)(West 2006).The parties also agree that two years and six months from the date of sale would be Sunday, December 21, 2008.We note that while petitioner contends this date constitutes the expiration of the original redemption date, respondents essentially contend that date could not fall on a Sunday and, thus, would be Monday, December 22, 2008.See5 ILCS 70/1.11(West 2006)(“[t]he time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is * * * Sunday * * * and then it shall also be excluded”).This trivial-sounding inconsistency proved to be central to the decision of the trial court.

¶ 5 On October 5, 2006, Ridge extended the redemption period to February 9, 2009.Five days later, Ridge submitted an official notice to be sent to Garcia at the subject property pursuant to section 22–5 of the Code. 35 ILCS 200/22–5(West 2006).The form of the notice required that the redemption expiration date be included in three different places on the form.Notwithstanding the extension of the redemption period five days earlier, Ridge listed the redemption period's expiration date as December 21, 2008, in all three blanks.It is undisputed that Garcia never received the notice sent by the clerk's office.

¶ 6 Ridge assigned the certificate of purchase to petitioner on June 28, 2007.On July 11, 2008, Indy was placed in receivership by the Federal Deposit Insurance Corporation and became IndyMac Federal Bank, F.S.B.(Indy Federal).In September 2008, Richard Glickman, petitioner's attorney, and Ronald Ohr took certain measures to ascertain the persons and entities to which petitioner needed to send the notice set forth in section 22–10 of the Code and the addresses to which said notice would be sent.See35 ILCS 200/22–10, 22–15, 22–20, 22–25 (West 2008).Their specific efforts in this arcane, but important legal arena will be punctiliously delineated below.

¶ 7 On September 24, 2008, petitioner extended the redemption period so that it would expire on March 23, 2009, and filed a petition for a tax deed.Petitioner subsequently made attempts to serve Garcia, MERS and MILA with the notice set forth in section 22–10.On March 20, 2009, OneWest Bank (OneWest) acquired Indy Federal and became the successor servicer to the two notes.Three days later, the redemption period expired without redemption occurring.

[353 Ill.Dec. 207]¶ 8 On April 16, 2009, Glickman filed on petitioner's behalf an application for a tax deed, alleging in pertinent part, that on October 10, 2006, the notice required by section 22–5 of the Code had been delivered to the county clerk to mail to Garcia.The application also alleged that Garcia, MERS and MILA were owners, occupants and parties interested in the subject property.Regarding the section 22–10 notice, the application represented that the sheriff's return of service showed that the manner of service for Garcia was certified mail sent on October 28, 2008, the manner of service for MERS was “Corporate” on October 9, 2008, and the manner of service for MILA was certified mail sent October 1, 2008.

¶ 9 On May 4, 2009, OneWest's attorney, Jeffrey Blumenthal of Slutzky and Blumenthal, filed a response to petitioner's application which essentially denied that petitioner complied with section 22–5, admitted that Garcia and MERS were owners, occupants or parties interested in the party and further alleged that the petitioner's list of interested parties entitled to notice pursuant to section 22–10 was incomplete.OneWest denied that Garcia, MERS or MILA received notice.OneWest requested that the trial court deny the application and dismiss the petition for a tax deed with prejudice.On November 24, 2009, Blumenthal also filed a response on behalf of Garcia, which generally provided the same representations as OneWest's response.

¶ 10 On May 18, 2010, petitioner and respondents tendered their “Joint Trial Materials,” which included their stipulations, certain exhibits and the majority of the aforementioned facts and documents.We recite only that testimony which is relevant to the issues raised on appeal.Ohr, a member of petitioner, testified that he inspected the subject property three times in September 2008 and brought his inspection report to Glickman.The report essentially pertained to any indicia, or lack thereof, of who occupied the subject property and described the property's condition.

¶ 11 Glickman, who had practiced in the tax deed area for almost 50 years, testified that Ohr's office had prepared the first notice extending the redemption period.Glickman testified that section 22–5 set forth notice to be submitted to the county clerk within 4 months and 15 days of the tax sale to be directed to the last tax assessee of record, in this case Garcia, and that the redemption date was required to be included in the notice.He acknowledged that when the section 22–5 notice was tendered to the county clerk on October 10, 2006, it listed the redemption date of December 21, 2008, even though the redemption expiration date had already been extended once to February 9, 2009.

¶ 12 Glickman testified that prior to the expiration of the extended period of redemption on March 23, 2009, there was an additional notice-serving period, during which a diligent inquiry and effort had to be made to serve all owners, occupants and interested parties.Petitioner retained Glickman for this purpose.Pursuant to his investigation, he had Ohr inspect the property and prepare a report and apparently at some point, located Garcia's warranty deed from a tract book search.Glickman also identified his search results from the Chicago Abstract, Inc., regarding the subject property on September 11, 2008.The results indicated that on June 28, 2005, the subject property was deeded to Garcia and she granted two mortgages on the property to MILA.The three documents were recorded on August 10, 2005.Glickman also testified that he always searched the Cook County recorder's records both before and after obtaining the Chicago Abstract document but could not specifically recall doing so in this case.Glickman apparently determined from the Chicago Abstract, Inc., results and the mortgage documents that Garcia, MILA and MERS had sufficient interests in the property to warrant directing notice toward them.On September 22, 2008, Glickman took certain additional steps, including performing an Accurint search, to attempt to identify occupants of the property and locate Garcia.His attempt to telephone Garcia was unsuccessful.Our record also indicates that in October 2008, petitioner unsuccessfully attempted to mail notice to Garcia but whether these particular attempts were sufficient is not at issue on appeal.

¶ 13 Glickman reviewed the mortgage documents to determine where to serve the remaining entities and observed that the documents referred to both MERS, the mortgagee as nominee for the lender, and MILA, the lender.As to MERS, the parties stipulated that during the...