People ex rel. McGuire v. Cornelius , 2014 IL App (3d) 130288 ( 2015 )

Illinois Official Reports
Appellate Court
People ex rel. McGuire v. Cornelius, 2014 IL App (3d) 130288
Appellate Court THE PEOPLE ex rel. PATRICK McGUIRE, County Treasurer and
Caption ex officio County Collector of Will County, Illinois, Plaintiff, v.
LORRAYNE M. CORNELIUS; MELVIN R. CORNELIUS;
NANCY SCHULTZ VOOTS; WILL COUNTY CLERK;
OCCUPANTS; AND UNKNOWN OWNERS OR PARTIES
INTERESTED IN SAID LAND OR LOTS, Defendants (DG
Enterprises, LLC-Will Tax, LLC, Petitioner-Appellant, v. Vincent F.
Cornelius, as Independent Administrator of the Estate of Lorrayne M.
Cornelius, Deceased, Respondent-Appellee).
District & No. Third District
Docket No. 3-13-0288
Filed December 19, 2014
Modified upon denial
of rehearing January 23, 2015
Held In a tax deed case, the trial court properly vacated its order issuing a
(Note: This syllabus tax deed to petitioner, since petitioner failed to provide proper notice
constitutes no part of the to respondent by omitting the address and telephone number of the
opinion of the court but county clerk on the take notice forms.
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of Will County, No. 11-TX-249; the
Review Hon. Bobbi Petrungaro, Judge, presiding.
Judgment Affirmed.
Counsel on Robert S. Krockey and Timothy Clark (argued), both of Krockey,
Appeal Cernugel, Cowgill & Clark, Ltd., of Joliet, for appellant.
George F. Mahoney (argued), of Mahoney, Silverman & Cross, of
Joliet, and Vincent F. Cornelius, of Law Office of Vincent F.
Cornelius, of Wheaton, for appellee.
Panel PRESIDING JUSTICE McDADE delivered the judgment of the
court, with opinion
Justice Wright concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
OPINION
¶1 Petitioner, DG Enterprises, LLC-Will Tax, LLC, appeals from an order of the trial court
granting the combined motion of respondent, Estate of Lorrayne M. Cornelius, challenging
personal jurisdiction under section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301
(West 2010)) and seeking relief under section 22-45 of the Property Tax Code (the Tax Code)
(35 ILCS 200/22-45 (West 2010)) and section 2-1401 of the Code of Civil Procedure (the
Code) (735 ILCS 5/2-1401 (West 2010)). The trial court concluded that the petitioner failed to
fulfill the notice requirements of the Tax Code depriving the court of in personam jurisdiction
to issue the tax deed for the petitioner. The trial court vacated its previous order of the tax deed
issuance to the petitioner. The petitioner appeals, arguing that tax deed cases are in rem rather
than in personam proceedings; thus, the issue is whether the trial court had jurisdiction to issue
the tax deed, not whether there was personal jurisdiction. Petitioner further argues that the
respondent’s combined motion was insufficient to afford her the relief of vacating the tax deed
issuance order. In a decision issued December 19, 2014, this court held that this is an in rem
proceeding but otherwise affirmed the trial court’s vacating of the tax deed issuance order.
¶2 The petitioner has filed a petition for rehearing noting a discrepancy in dates in the “facts”
for prior proceedings and party designations. It also raises three issues with this court’s
decision: (1) the court misapplied the requirements of section 2-1401 of the Code and section
22-45 of the Tax Code and sustained the order vacating the tax deed issuance order where the
respondent cannot sustain its burden of proof; (2) this court elevated rote completion of the
form section 22-10 notice into a jurisdictional requirement which is contrary to the statute’s
plain language and case law; and (3) the court has blurred the line between void orders and
voidable orders by relying on the petitioner’s lack of strict compliance with the requirements
of the notice in section 22-10 of the Tax Code. The petition is denied with slight modification
of the opinion. We have corrected the dates of prior proceedings in the “facts.” However, as
noted on the court’s fact sheet as well as in the petitioner’s briefs, the petitioner has remained
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the petitioner of record and not the respondent. Thus the designations remain unaltered in this
decision. The substance of the petitioner’s challenges to the court’s decision was fully
addressed in the original opinion. For further clarification, we include identifying terms for the
personal jurisdiction issue and a one-sentence elucidation of the court’s concurrent need for
subject matter jurisdiction. The trial court’s ruling remains affirmed.
¶3 FACTS
¶4 The facts are undisputed. The petitioner purchased the 2007 delinquent real estate taxes for
the property known as 716 Henderson Avenue, Joliet, Illinois, from the Will County collector
at a public auction on November 6, 2008. On February 4, 2009, in accord with the
requirements of section 22-5 of the Tax Code, the petitioner drafted and then requested that the
county clerk send by certified mail the completed “Notice of Sale and Redemption Rights”
(Take Notice I) form to the respondent. 35 ILCS 200/22-5 (West 2010). This section of the Tax
Code specifies that in order to be entitled to a tax deed, the tax purchaser shall tender to the
clerk the provided form “completely filled in.” 35 ILCS 200/22-5 (West 2010). The form has a
section for the tax purchaser to provide the address and telephone number of the county clerk:
“For further information contact the County Clerk
ADDRESS: ..........
TELEPHONE: ........” 35 ILCS 200/22-5 (West 2010).
The petitioner did not include this information in the prepared Take Notice I form sent to the
respondent.
¶5 After extending the period for redemption from May 6, 2011, to November 4, 2011, as well
as identifying other interested parties for the tax deed through a commitment for title insurance
order, the petitioner filed its petition for tax deed. The petitioner then requested the county
clerk send by certified mail a completed “Notice of Expiration of Period of Redemption” (Take
Notice II) form to all of the known interested parties. The required format of Take Notice II in
section 22-10 of the Tax Code is nearly identical to that of Take Notice I required in section
22-5 of the Tax Code. 35 ILCS 200/22-5, 22-10 (West 2010). Although the contact
information for the county clerk is still a requirement, the petitioner again failed to include it.
¶6 The Take Notice II was sent by certified mail by the county clerk and the petitioner also
took additional steps to complete personal service on the respondent and all other interested
parties. The petitioner enlisted the services of a licensed process server who attempted 11 times
to personally serve the respondent and all other interested parties. The petitioner also had the
Take Notice II published in the Times Weekly in accordance with section 22-20 of the Tax
Code. 35 ILCS 200/22-20 (West 2010).
¶7 No redemption from sale was made on or before November 4, 2011, the expiration date.
¶8 On November 17, 2011, a hearing was held on the petitioner’s application. The trial court
ordered issuance of a tax deed to the petitioner. Neither respondent nor any other person with
an interest in the property appeared at the hearing.
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¶9 On March 14, 2012, the respondent filed her appearance through counsel 1 and filed her
combined motion objecting to the court’s jurisdiction and seeking relief from the judgment
ordering the tax deed to issue.
¶ 10 On October 12, 2012, following a hearing, the court granted the respondent’s combined
motion and vacated its previous order issuing the tax deed to the petitioner. The petitioner’s
motion to reconsider was denied.
¶ 11 Petitioner appealed.
¶ 12 ANALYSIS
¶ 13 On appeal, the petitioner raises two arguments. First, it argues that the court did have
jurisdiction to issue the tax deed to the petitioner even though the court found insufficient
notice had been given to the respondent. Specifically, the petitioner asserts that this is an in rem
rather than in personam proceeding requiring jurisdiction of the property rather than the
respondent. Second, it argues that the respondent’s combined motion was insufficient for the
relief granted by the trial court. The respondent counters that personal jurisdiction is required
in tax deed proceedings and is secured through strict compliance with the Tax Code notice
requirements. The respondent further argues that the notices of the tax deed sale and petition
for issuance provided by the petitioner to the respondent were defective, rendering the tax deed
issuance order void. Thus the respondent claims the combined motion was sufficient as a
matter of law. We consider both issues.
¶ 14 Jurisdiction
¶ 15 Review of a trial court’s ruling on a matter concerning in personam jurisdiction is de novo,
where the trial court held no evidentiary hearing on the motion attacking jurisdiction. Viktron
Ltd. Partnership v. Program Data Inc., 326 Ill. App. 3d 111, 116 (2001). However, it is well
settled that a tax sale is an in rem action. Smith v. D.R.G., Inc., 63 Ill. 2d 31, 35 (1976). A court
acquires personal jurisdiction over the property or land after the county collector makes his
application for judgment and order of sale. Id. See also In re Application of the County
Collector, 397 Ill. App. 3d 535, 547 (2009) (hereinafter Devon); In re Application of the
County Treasurer & ex-officio County Collector of Cook County, Illinois, for Order &
Judgment of Sale of Lands & Lots Upon Which All or a Part of the General Taxes For 5 or
More Years are Delinquent Pursuant to Section 235a of the Revenue Act of 1939, as Amended,
194 Ill. App. 3d 721, 724 (1990) (hereinafter Zadik). It is the personal jurisdiction over the land
itself that gives the court the power to act. Novak v. Smith, 197 Ill. App. 3d 390, 395 (1990).
¶ 16 Consequently, the matter presented before the court requiring it to determine whether a
party has been given the notice required by section 22-15 of the Tax Code goes to whether the
court should order the tax deed to issue and not to whether the court has personal jurisdiction in
the proceeding. Zadik, 194 Ill. App. 3d at 724. The failure of the tax deed petitioner to give the
notices required by statute will neither divest the court of in rem jurisdiction nor prevent it
from finding that all the necessary notices have been given and directing that a tax deed issue.
In re Application of County Treasurer, 51 Ill. App. 3d 697, 702 (1977) (hereinafter Walsh).
1
Mrs. Lorrayne Cornelius has died and Vincent Cornelius, as independent administrator of the
estate of Lorrayne M. Cornelius, has been substituted as party respondent.
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Even if the court erred in finding that proper notice had been given, it is still not divested of
in rem jurisdiction to decide whether it can or cannot issue the tax deed. Walsh, 51 Ill. App. 3d
at 702-03. The trial court’s ruling regarding in personam jurisdiction is error.
¶ 17 Respondent claims that Devon’s in personam jurisdictional analysis is dispositive. Devon,
397 Ill. App. 3d at 548. It is, however, distinguishable on its facts and this court declines to
extend it to include matters involving actual attempts of notice to the known property owner. In
Devon, the court found that the property owner’s due process rights were violated because the
tax deed petitioner failed to attempt or provide any notice whatsoever of the tax deed purchase
or the property owner’s redemption rights. Id. The tax deed petitioner in that case did not
conduct a diligent inquiry to ascertain the identity of all interested parties of the property. Id. at
545. He used a significantly insufficient and expressly unreliable tract search index, as well as
conducted an expanded search of several lots instead of just the property in question. Id. at 546.
This resulted in his failure to identify the property owner as an interested party and his
subsequent failure to provide the property owner with notices required by the Tax Code. Id.
The court reasoned that because (1) a property owner has interest in the property for purposes
of due process and (2) due process requires some notice prior to a governmental taking of an
owner’s property, as well as the fact that (3) the statutory notices of the Tax Code do comport
with due process, the trial court would have to acquire in personam jurisdiction when there is a
total lack of notice. Id. at 548.
¶ 18 In the present case, the Will County collector ordered the property for sale and the property
was purchased by the petitioner on November 6, 2010. The trial court acquired in rem
jurisdiction over the property at issue when the Will County collector made an application for
judgment and order of sale. The petitioner adhered to the requirements of the Tax Code in
identifying the respondent as a party in interest through a commitment for title insurance order.
It also attempted to serve the respondent with Take Notices I and II, as well as employed the
use of a licensed process server who attempted 11 times to personally serve the respondent.
Notwithstanding the technical defectiveness of the Take Notices I and II, to be discussed later,
in personam jurisdiction is not required in this case because the property owners were
identified and reasonable attempts required by statute were made to serve them with notice.
¶ 19 The trial court’s finding that its order issuing a tax deed to the petitioner was void because
it lacked in personam jurisdiction was erroneous; the defects in the notice did not divest the
trial court of in rem jurisdiction to resolve the matter.
¶ 20 Sufficiency of Combined Motion
¶ 21 Moving now to address the petitioner’s challenge to the sufficiency of the combined
motion, the respondent argues that she was not given proper notice of the property sale or her
redemption rights because the petitioner did not include the county clerk’s address and phone
number on Take Notices I and II in strict compliance with the Tax Code. Because of this failing
under section 22-45(4) of the Tax Code, she claims her prayer for relief in the combined
motion was sufficient and the order issuing the tax deed to the petitioner is void. We agree.
¶ 22 Once the trial court has issued a tax deed to a tax deed petitioner it is incontestable except
by direct appeal from the order directing the entry of the tax deed or by a petition pursuant to
section 2-1401 of the Code. See 35 ILCS 200/22-45 (West 2010). The party seeking to have
the tax deed set aside bears the burden of proving its invalidity. Devon, 397 Ill. App. 3d at 542.
If the trial court grants a section 2-1401 petition after an evidentiary hearing, we review that
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judgment under a manifest weight of the evidence standard. Domingo v. Guarino, 402 Ill. App.
3d 690, 699 (2010); S.I. Securities v. Powless, 403 Ill. App. 3d 426, 440 (2010). However, in
People v. Vincent, 226 Ill. 2d 1, 14 (2007), the supreme court held that a de novo standard of
review was appropriate in cases in which the trial court either summarily dismissed the section
2-1401 petition or ruled on the petition based on the pleadings alone, without an evidentiary
hearing. Id. at 14-18.
¶ 23 In the case at hand, the trial court ruled on the section 2-1401 petition on the pleadings
alone. Therefore, we review de novo whether the order issuing the tax deed was void and the
section 2-1401 petition was properly granted.2
¶ 24 A judgment is void when, inter alia, the court lacks jurisdiction over the subject matter or
the parties. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). As
previously noted, a void judgment may be attacked either directly or collaterally at any time.
Id. Section 2-1401 of the Code provides a means for collaterally attacking void judgments. 735
ILCS 5/2-1401(a) (West 2010); Sarkissian, 201 Ill. 2d at 104.
¶ 25 Section 22-45 of the Tax Code works in conjunction with section 2-1401 of the Code by
allowing a party to collaterally attack a tax deed. 35 ILCS 200/22-45 (West 2010); see Devon,
397 Ill. App. 3d at 543. As set forth in section 22-45 of the Tax Code, the grounds for relief
under section 2-1401 of the Code are limited to: (1) proof that the taxes were paid prior to the
sale; (2) proof that the property was exempt from taxation; (3) proof by clear and convincing
evidence that the tax deed was procured by fraud or deception; or (4) proof by a person or party
holding a recorded ownership or other interest in the property that he was not named as a party
in the section 22-20 publication notice and that the tax purchaser did not make a diligent
inquiry and effort to serve the person or party with the notices required pursuant to sections
22-10 through 22-30. 35 ILCS 200/22-45 (West 2010). Such a finding on any of these grounds
would render the order for the tax deed issuance void.3
¶ 26 This court reviews de novo the respondent’s argument that the notice was insufficient
according to section 22-45(4) of the Tax Code. Vincent, 226 Ill. 2d at 14. Additionally, we are
called upon to resolve a question of statutory interpretation of section 22-10 of the Tax Code in
reviewing the trial court’s allowance of the section 2-1401 petition. In doing so, we again apply
a de novo standard of review. CitiMortgage, Inc. v. Sharlow, 2014 IL App (3d) 130107, ¶ 14.
¶ 27 The petitioner’s argument regarding the respondent’s deficiency in complying with the
general requirements of section 2-1401 is without merit because “[a] section 2-1401(f) petition
alleging voidness is exempt from the general requirements of section 2-1401 petitions, such as
alleging a meritorious defense and due diligence.” In re Application of the County Treasurer,
2012 IL App (1st) 101976, ¶ 31.
2
Only void judgments can be collaterally attacked. People v. Davis, 156 Ill. 2d 149, 155-56 (1993).
Section 22-45 of the Tax Code provides grounds for relief under section 2-1401 of the Code to
collaterally attack judgments issuing tax deeds despite the desired finality of tax deed judgments.
Therefore, petitions validly granted under section 22-45 render the judgment issuing the tax deed void.
3
Petitioner incorrectly relies on In re Application of the County Collector, 217 Ill. 2d 1 (2005), and
failed to advise the court that the decision in that case has been vacated. Estate of Lowe v. Apex Tax
Investments, Inc., 547 U.S. 1145 (2006).
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¶ 28 Our courts have long striven to avoid involuntary divesture of property interests. The main
purpose of the tax deed process is to compel tax delinquent property owners to pay their taxes,
not to assist others in depriving the true owners of their property. In re Application of the
County Collector, 295 Ill. App. 3d 703, 710 (1998) (hereinafter Midwest Real Estate
Investment). Thus the tax purchaser must strictly comply with all of the mandatory notice and
procedural requirements of the Tax Code regardless of how minute. 35 ILCS 200/22-40 (West
2010); see In re Application of the County Treasurer & ex officio County Collector, 2013 IL
App (1st) 130463. “The court shall insist on strict compliance with Section 22-10 through
22-25.” 35 ILCS 200/22-40 (West 2010).
¶ 29 The Tax Code requires the petitioner to provide notice to the property owner and other
interested parties of the tax sale and the property owner’s redemption rights using detailed
formats provided directly in the statute. 35 ILCS 200/22-5, 22-10 (West 2010). Sections 22-5
and 22-10 of the Tax Code specifically state that the provided format must be “completely
filled in.” 35 ILCS 200/22-5, 22-10 (West 2010).
¶ 30 This court has previously noted and upheld the Tax Code requirement of strict compliance.
In re Application of the County Treasurer & ex officio County Collector, 361 Ill. App. 3d 504,
507 (2005) (hereinafter H&H Investments). In H&H Investments, the tax deed petitioner failed
to provide either proof of publication with a signed certificate of publication by the publisher
or an authorized agent and to name the interested party in the publication as required by section
22-20 of the statute. Id. at 508. The party was named using its former legal name and this court
held that due diligence could have revealed the current interested party, and found the
publication notice insufficient because it did not comply with the strict requirements of the Tax
Code. Id. at 509.
¶ 31 Midwest Real Estate Investment is instructive regarding the requisite level of strict
compliance when dealing with omitted information. Midwest Real Estate Investment, 295 Ill.
App. 3d at 710. In that case, the tax deed petitioner omitted the first four digits of the tax sale
certificate number, thereby failing to comply with the strict requirements of section 22-15 of
the Tax Code by not “ ‘completely fill[ing] in’ ” the notice forms. Id. at 707. The court even
acknowledged that the property owner had never been misled and had actually followed up
with the county clerk regarding the delinquent taxes. Id. at 708. It also rejected the tax deed
petitioner’s argument that the omitted certificate numbers were extraneous information and
that the omission was “harmless.” Id. at 707-10. The court noted that strict compliance was
necessary to further the legislative intent to create a “bulwark.” Id. at 710. A tax purchaser’s
failure to comply with the requirements without deviation must result in denial of a tax deed.
Id. A favorable judgment would be void and subject to collateral attack. See supra ¶ 23 n.2.
The court found that strict compliance to the forms meant full and complete compliance with
all required information. Midwest Real Estate Investment, 295 Ill. App. 3d at 710.
¶ 32 In the present case, the petitioner did not include the address and phone number of the
county clerk following the statement “For further information contact the County Clerk,” thus
failing to strictly comply with the requirements of section 22-5 and section 22-10 of the Tax
Code. 35 ILCS 200/22-5, 22-10 (West 2010). This omission could be seen as far more
egregious than the incomplete sale certificate number which the Midwest Real Estate
Investment court found to be noncompliant with the statute. Midwest Real Estate Investment,
295 Ill. App. 3d at 710. The failure to include the contact information of the county clerk on
Take Notices I and II sent to the property owner both impedes the ease with which he or she
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can remedy the tax delinquency and keep the property and also frustrates the legislature’s
intent to encourage the property owner to pay the delinquent taxes rather than aid the purchase
efforts of tax deed petitioner.
¶ 33 Neither Take Notice I4 nor II was “completely filled in,” as required by section 22-5 and
section 22-10 of the Tax Code, and the petitioner did not, therefore, “serve that [respondent]
with the notices required by sections 22-10 through 22-30.” 35 ILCS 200/22-5, 22-10,
22-45(4) (West 2010). The trial court properly vacated the order issuing the tax deed to the
petitioner because the order was void for failure of proper statutory notice.
¶ 34 We affirm the trial court on the basis that the petitioner failed to provide proper notice to
the respondent by omitting the address and phone number of the county clerk on the take notice
forms. We decline to reach the parties’ additional arguments regarding the trial court’s ruling.
¶ 35 CONCLUSION
¶ 36 We find the trial court had jurisdiction to resolve this matter and affirm its order granting
the respondent’s combined motion and vacating its order issuing the tax deed.
¶ 37 Affirmed.
¶ 38 JUSTICE SCHMIDT, dissenting.
¶ 39 I agree with the majority’s finding that the trial court had in rem jurisdiction over the
subject property. This is where my agreement begins and ends. I would find that the technical
defect did not render the tax deed void and that respondent’s section 2-1401 motion was
insufficient. I would reverse the trial court. Therefore, I respectfully dissent.
¶ 40 The Tax Deed Is Not Void
¶ 41 Having determined that the trial court had in rem jurisdiction over the subject property, the
majority goes on to find that the tax deed is void. Supra ¶ 32. This is so, says the majority, due
to petitioner’s failure to include the circuit clerk’s address and telephone number in the written
notices, which respondent claimed she never received.
¶ 42 The majority cites no authority to support its holding that a technical defect renders the tax
deed void, nor have I uncovered any. In fact, once a trial court acquires jurisdiction over the
land, any subsequent challenge to the issuance of the tax deed renders its order voidable, not
void. Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159, 165 (1983); see also In re
Application of the County Collector for Judgment & Order of Sale Against Lands & Lots
4
In In re Application of the County Treasurer & ex officio County Collector, 2013 IL App (1st)
130463, ¶ 15, the court affirmed the vacating of the tax deed because the tax buyer failed to strictly
comply with the requirements of the first take notice form by omitting the municipality of the property.
There, the tax deed petitioner failed to include the municipality on the original postsale notice sent to
the property owner per the requirements of section 22-5 of the Tax Code. Id. Even though the
municipality was included on all of the other take notice documents sent to the property owner in
accordance with section 22-10, the court held that the omission rendered the postsale notice form
insufficient and the tax deed petitioner was not entitled to a tax deed. Id.
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Returned Delinquent for Non-Payment of General Taxes & Special Assessments for the Year
1983 & Prior Years, 206 Ill. App. 3d 22, 27 (1990). S.I. Securities v. Powless, 403 Ill. App. 3d
426, 444 (2010), held that minor mistakes do not render a tax deed void. The court stressed that
the incorrect description of the property contained in the notice, at most, rendered the tax deed
voidable, not void. Id.
¶ 43 The government and homeowner hold competing interests with regard to collateral attacks
upon tax deed orders. In re Application of the County Collector, 217 Ill. 2d 1, 17 (2005). As the
majority identifies, the main purpose of the tax deed process is to compel delinquent
homeowners to pay taxes. In re Application of the County Collector, 295 Ill. App. 3d 703, 710
(1998). Marketable tax deeds aid the government in collecting taxes where the homeowner
fails to pay them. Killion v. Meeks, 333 Ill. App. 3d 1188, 1193 (2002). However, the forced
sale of a home can have serious consequences for the delinquent taxpayer; thus, a collateral
attack affords the delinquent homeowner an opportunity to ensure that the order was properly
obtained. Mary Lowe, 217 Ill. 2d at 17.
¶ 44 The majority’s holding that a technical defect voids tax deeds and thus subjects them to
collateral attack at any time (Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103
(2002)) will destroy the marketability of tax deeds. Query: What rational person would buy a
tax deed knowing that any technical deficiency in the notice renders the deed void and subject
to attack at any time? This reality did not escape the attention of the General Assembly, ergo,
section 22-45 of the Tax Code (35 ILCS 200/22-45 (West 2010)). The majority’s holding also
ignores section 22-45.
¶ 45 Section 22-45: Insufficiency of Petitioner’s Combined Motion
¶ 46 The majority finds that respondent’s petition is exempt from the general requirements of
section 2-1401 due to the fact that the petition alleges voidness. Supra ¶ 26. I agree that a
section 2-1401 petition based on voidness is exempt from the usual section 2-1401 pleading
requirements. However, respondent failed to satisfy any requirement necessary for relief.
¶ 47 Section 22-45 of the Tax Code works in conjunction with section 2-1401 of the Code of
Civil Procedure by allowing a party to collaterally attack a tax deed in limited circumstances.
Thus, in contrast to the majority’s position, even voidable tax deeds can be collaterally
attacked pursuant to section 2-1401. A tax deed need not be void for the property owner to
contest it. However, section 22-45 limits the grounds for relief on collateral attack:
Ҥ 22-45. Tax deed incontestable unless order appealed or relief petitioned. Tax
deeds issued under Section 22-40 are incontestable except by appeal from the order of
the court directing the county clerk to issue the tax deed. However, relief from such
order may be had under Sections 2-1203 or 2-1401 of the Code of Civil Procedure in
the same manner and to the same extent as may be had under those Sections with
respect to final orders and judgments in other proceedings. The grounds for relief under
Section 2-1401 shall be limited to:
(1) proof that the taxes were paid prior to sale;
(2) proof that the property was exempt from taxation;
(3) proof by clear and convincing evidence that the tax deed had been procured
by fraud or deception by the tax purchaser or his or her assignee; or
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(4) proof by a person or party holding a recorded ownership or other recorded
interest in the property that he or she was not named as a party in the publication
notice as set forth in Section 22-20, and that the tax purchaser or his or her assignee
did not make a diligent inquiry and effort to serve that person or party with the
notices required by Sections 22-10 through 22-30.” (Emphasis added.) 35 ILCS
200/22-45 (West 2010).
¶ 48 Respondent failed to allege any of the four grounds for relief in the section 2-1401 petition.
It is clear from the record that respondent had not paid the taxes prior to the sale of the property
and that the property was not exempt from taxes. Respondent requested that the court grant
relief under sections 22-45(3) and (4), but failed to support either ground. The petition did not
include any allegations regarding fraud or deception; thus respondent did not satisfy grounds
for relief under section 22-45(3). Respondent’s failure to allege that petitioner did not name her
in the notice prevented respondent from establishing grounds for relief under section 22-45(4).
Conspicuously absent from section 22-45 is the basis relied upon by the majority: a failure to
provide the name and phone number of the county clerk in the take notice.
¶ 49 Furthermore, respondent failed to comply with even the general requirements under
section 2-1401. Petitions under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010))
must meet several requirements. The petition must: (1) allege and prove due diligence in
defending the original action; (2) plead due diligence in bringing the petition to vacate the
order in question; and (3) plead a meritorious defense. Smith v. Airoom, Inc., 114 Ill. 2d 209,
221 (1986). “The petition must be supported by affidavit or other appropriate showing as to
matters not of record.” 735 ILCS 5/2-1401(b) (West 2010). The respondent did not sign the
affidavit; her attorney signed it. Furthermore, respondent did not include a statement
concerning respondent’s own due diligence in defending the original action, nor did the
petition allege a meritorious defense.
¶ 50 I find that respondent’s section 2-1401 petition is insufficient on its face. Therefore, I
would reverse the trial court’s ruling.
¶ 51 For the foregoing reasons, I respectfully dissent.
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