IN RE COUNTY TREASURER

• Decision Date: 19 November 1999
• Docket Number: No. 1-98-0517.,1-98-0517.
• Citation: 721 N.E.2d 745,242 Ill.Dec. 466,309 Ill. App.3d 181
• Court: United States Appellate Court of Illinois
• Parties: In re Application of the COUNTY TREASURER, and Ex-Officio County Collector of Cook County, Illinois, For Judgment of Real Estate (Robert Bryant, Tax Deed Petitioner-Appellant, v. Benjamin Bowman; Revival Center, Church of God in Christ, Respondents and Objectors-Appellees).

721 N.E.2d 745

309 Ill. App.3d 181

242 Ill.Dec. 466

In re Application of the COUNTY TREASURER, and Ex-Officio County Collector of Cook County, Illinois, For Judgment of Real Estate (Robert Bryant, Tax Deed Petitioner-Appellant, v. Benjamin Bowman; Revival Center, Church of God in Christ, Respondents and Objectors-Appellees).

No. 1-98-0517.

Appellate Court of Illinois, First District, Fifth Division.

November 19, 1999.

James E. O'Neal, Ottawa (James E. O'Neal, of counsel), for Appellant.

Alan Meserow, Chicago (Alan Meserow, of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

Petitioner, Robert Bryant, purchased property through a scavenger tax sale and received certificates of purchase evidencing the sale. The period of redemption for previous owners expired on August 21, 1996. Petitioner had one year from the expiration of the redemption period to take out and record the tax deed on the parcel, thereby obtaining title to the property. See 35 ILCS 200/22-85 (West 1994). The trial court granted petitioner's petition and application for tax deed on July 15, 1997. On September 10, 1997, petitioner filed a petition to toll the one-year period to take out and record the tax deed. The trial court denied petitioner's petition to toll. Subsequently, Banco Popular, as successor in interest to petitioner, filed a petition for order of possession, which the trial court also denied and from which petitioner appeals. Petitioner contends that a formal motion to toll is not a prerequisite to the applicability of the tolling provisions of section 22-85 of the Property Tax Code. 35 ILCS 200/22-85 (West 1994). Petitioner also contends that the trial court was unable to act within the meaning of the statute, thus tolling the period of time available for recording the tax deed. For the reasons that follow, we reverse.

On November 2, 1993, petitioner purchased property located at 1956 and 1958 West Washington Boulevard in Chicago at a tax sale. Petitioner filed two separate petitions for tax deed. The first petition for tax deed was filed on April 17, 1994. The redemption period on this first petition for tax deed was to expire on September 8, 1994. An affidavit from petitioner's attorney in support of the application for tax deed stated that five months before the redemption period was to expire, petitioner found that the property was improved with a church and that respondents, Reverend Benjamin Bowman and the Revival Center Church of God in Christ, were occupants or in actual possession of the property. A title search revealed that Chicago Title and Trust Company, the Winnetka Congregational Church, David D. Orr, the Revival Center Church of God in Christ, and Reverend Benjamin and Lolita Bowman were parties interested in the property. Petitioner filed an application for issuance of tax deed on September 16, 1994. A hearing was held on the application on October 17, 1994, at which time the matter was taken under advisement by the circuit court. On October 21, 1994, respondents filed their appearance and objection to the issuance of the tax deed. On May 2, 1995, respondents filed an amended objection to the issuance of petitioner's tax deed, alleging that petitioner failed to serve them with proper notice. Petitioner filed a motion to strike and dismiss respondents' amended objection on June 8, 1995, which the trial court denied July 17, 1995.

On September 1, 1995, petitioner filed a petition to toll the one-year period to take out and record the tax deed. Petitioner specifically requested that the court enter an order excluding from computation of the one-year period the time from October 21, 1994, until the court made a ruling on the petition and application for tax deed and respondents' amended objection. On September 12, 1995, the court granted petitioner's petition to toll the one-year period pursuant to section 22-85 of the Illinois Property Tax Code (35 ILCS 200/22-85 (West 1994)), until the petition and application for tax deed along with respondents' objections were adjudicated.

On February 27, 1996, petitioner filed a motion for a hearing to set a trial date on respondents' amended objection to petitioner's petition and application for tax deed. The matter was set for trial on March 18, 1996. On March 11, 1996, petitioner filed a motion to reschedule the trial date for March 22, 1996. The trial court dismissed respondents' amended objection for want of prosecution on March 18, 1996, and continued the cause to April 8, 1996, for proof of payment of taxes.

On April 3, 1996, respondents filed a second amended objection to petitioner's petition and application for tax deed and filed a motion for trial date. Trial on respondents' objection was set for April 11, 1996.

On April 11, 1996, the trial court granted respondents' second amended objection and denied petitioner's petition and application for tax deed, finding that because the property was commercial, it was entitled to a two-year redemption period. The trial court granted respondents leave to extend the period of redemption to August 21, 1996, and granted petitioner leave to file an amended petition and second application for tax deed.

Petitioner filed an amended petition for tax deed on April 12, 1996. On August 27, 1996, after the extended period of redemption expired without respondents' redeeming the property, petitioner filed a second application for an order directing the county clerk to issue a tax deed and "maintain petitioner as grantee in possession of said real estate." This application and the amended petition for tax deed were assigned to Judge James Henry on August 30, 1996.

On October 17, 1996, respondents filed an objection to petitioner's amended petition and second application for tax deed, arguing that petitioner failed to strictly comply with the Property Tax Code (35 ILCS 200/22-10 (West 1994)), by failing to serve the owner and occupant of the property with requisite notice. Respondents further argued that petitioner's notice failed to set forth the correct redemption period expiration date. Respondents also filed a motion to secure a copy of the report of proceedings that occurred on September 17, 1996, in support of the amended petition and second application for tax deed. The court found that it was respondents' duty to obtain the transcript at their own cost.

Petitioner filed a reply to respondents' objection to petitioner's amended petition and second application for tax deed on November 6, 1996. Respondents filed an amended motion for additional time to reply on November 21, 1996. On November 25, 1996, the trial court ordered that the trial date of November 27, 1996, be stricken.

On January 7, 1997, the trial court gave petitioner leave to file a transcript of the September 17, 1996, prove-up hearing. On February 20, 1997, the court set a hearing date of March 26, 1997. On March 26, 1997, on the court's own motion, the cause was continued to April 3, 1997.

On April 3, 1997, the court denied respondents' objection to petitioner's amended petition and application for tax deed. On April 16, 1997, pursuant to petitioner's motion, the court continued the matter to April 30, 1997.

On April 28, 1997, respondents filed a motion for reconsideration of the April 3, 1997, order denying respondents' objection, which the trial court denied on June 26, 1997.

The trial court granted petitioner's amended petition and second application for tax deed on July 15, 1997, and included the following language in its order pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)): "[t]he court expressly finds that there is no just reason for delaying the enforcement of this order or the right of appeal therefrom."

On September 10, 1997, petitioner filed a petition to toll the one-year period to take out and record the tax deed, alleging that since October 17, 1996, petitioner was prevented from taking out and recording the tax deed. Petitioner further alleged that he would be unfairly prejudiced if the court failed to exclude from the one-year period after the redemption period expiration date, the time from the filing of respondents' objection until the court's ruling on the objection.

On October 17, 1997, respondents filed a response to petitioner's petition to toll, arguing that the trial court order of July 15, 1997, granting petitioner issuance of the tax deed, was a final order terminating the litigation between the parties. Respondents argued that as of August 15, 1997, thirty days after entry of the final order, the trial court no longer had jurisdiction to modify or supplement its order and because petitioner failed to take out and record the tax deed within one year of the redemption expiration date of August 21, 1996, the tax deed and certificate upon which it was based were null and void without right of reimbursement under section 22-85 of the Illinois Property Tax Code.

Petitioner filed a reply and argued that because respondents filed an objection to petitioner's amended petition and second application for tax deed and the trial court did not rule on respondents' objections until July 15, 1997, petitioner was unable during that time period to act upon the application for tax deed, citing In re Application of the County Treasurer & ex-officio County Collector of Cook County for Order of Judgment & Sale of Lands & Lots Upon Which All or a Part of the General Taxes for Five or More Years are Delinquent, 225 Ill.App.3d 349, 167 Ill.Dec. 617, 587 N.E.2d 1232 (1992)(hereafter In re Application), as authority for his position. Petitioner also characterized his petition to toll as a request for a declaratory or supplementary order pursuant to section 2-701 of the Code of Civil Procedure (735 ILCS 5/2-701 (West 1994)), rather than a motion to modify or amend judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)).

On October 31, 1997, the court denied petitioner...