In re Application of the County Collector ( 2017 )

Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity
of this document
Appellate Court Date: 2017.04.20
09:40:17 -05'00'
In re Application of the County Collector, 2017 IL App (3d) 150809Appellate Court In re APPLICATION OF THE COUNTY COLLECTOR, for the Sale
Caption of Delinquent Real Estate Taxes (Steve Sodeman, Petitioner-
Appellant, v. The Rock Island County Collector, Respondent-
Appellee).
District & No. Third District
Docket No. 3-15-0809
Filed January 6, 2017
Decision Under Appeal from the Circuit Court of Rock Island County, No. 14-TX-68;
Review the Hon. Clarence M. Darrow, Judge, presiding.
Judgment Affirmed.
Counsel on James B. Eagle, of Eagle & Eagle, of Rock Island, for appellant.
Appeal
Christopher E. Sherer and Matthew R. Trapp, of Giffin, Winning,
Cohen & Bodewes, P.C., of Springfield, for appellee.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Justices McDade and Wright concurred in the judgment and opinion.
OPINION
¶1 Petitioner Steve Sodeman bought a property owned by Mary Gatewood at a tax sale and
filed for a tax deed. The trial court denied his petition because Sodeman failed to serve the
property owner and taxpayer. He subsequently sought a sale in error, which the trial court also
denied, finding that Sodeman did not make a bona fide attempt to comply with the statutory
notice requirements. We affirm.
¶2 FACTS
¶3 Petitioner Steve Sodeman paid the taxes and received a tax sale certificate of purchase for
real estate located at 525 9th Street in Rock Island at the annual tax sale in Rock Island County
in December 2011. The owner and taxpayer of the property was Mary Gatewood. Sodeman
thereafter bought the taxes due on the property in 2012 and 2013. In July 2014, Sodeman
obtained a title search, visited the property, and determined the identity of the property’s
occupants.
¶4 On August 4, 2014, Sodeman filed a petition for tax deed and take notices for the interested
parties, including Gatewood. Sodeman delivered the take notices to the sheriff’s department
and the circuit clerk for the appropriate service, and he published notice. On August 18, the
take notice was filed with a certified mail receipt from the clerk’s office indicating the notice
for Gatewood was delivered to Marissa Martin at the subject address. The sheriff’s
department’s certified mail receipt also indicated Martin accepted notice at the subject address.
The return sheet from the sheriff’s department stated that the notice was not personally served
and the “subject [was] unknown.” An affidavit in support of the petition was signed by
Sodeman and provided that Sodeman searched various county records and published notice
and that Gatewood was served by the sheriff or by mail at the subject address.
¶5 At hearings in February and March 2015, service of interested parties, including
Gatewood, was discussed. Sodeman acknowledged Gatewood as the property’s owner and
taxpayer and admitted she no longer lived at the subject address. Sodeman stated that his
affidavit provided that Gatewood was served via abode service. The trial court determined that
there was no return of service indicating abode service. The trial court noted that Sodeman did
not present any documentation regarding service or lack of service, either personal, substitute,
or abode, or any evidence Gatewood could not be found, such as the sheriff’s department
diligent search form.
¶6 In April 2015, another hearing took place. Sodeman presented the testimony of Joel Keim,
an employee of the Rock Island County Sheriff’s Department. He served notice on the
occupants of the property. Gatewood was not there and the occupants did not know her
whereabouts. Keim did not attempt any other means to serve Gatewood and did not engage in
any further inquiry to discover her whereabouts, such as inquiring at the post office or through
a skip trace.
¶7 Sodeman testified that he used information from the county treasurer’s and assessor’s
offices and an Internet search to locate Gatewood, which all showed her address as the subject
property. The Internet search revealed her phone number was connected to the address at issue.
He did not call the phone number he found. He did not check the post office or ask relatives or
the property’s occupants where Gatewood could be found. He did not check the county clerk’s
-2-
office or the files in either of the foreclosure cases pending against Gatewood in Rock Island
County. The limited title search he did in July 2014 did not reveal the foreclosures. The trial
court observed that the clerk’s docket revealed foreclosures against Gatewood in 2012 and one
pending in 2014 and that those files showed a different address for Gatewood. The court
denied Sodeman’s petition for tax deed, finding Sodeman failed to make a diligent inquiry and
effort to locate Gatewood.
¶8 Sodeman filed a petition for sale in error in August 2015. The County objected and a
hearing took place to determine whether Sodeman made a bona fide attempt to comply with the
statutory notice requirements. Sodeman testified he did not know the address he obtained for
Gatewood from the treasurer’s and assessor’s offices was incorrect. He did not check the
county court files. The sheriff’s department filed a return notice but did not send a return of
service to him. The sheriff’s department did not notify him that it served Gatewood or that it
was unable to serve her. He also stated that the postcard notice of the tax sale he mailed to
Gatewood was not returned, so he concluded it had been delivered to her. Sodeman located
Gatewood’s name on the Judici website, but he did not know how the website worked and did
not obtain any information from it. Sodeman was familiar with the homestead and senior
property tax exemptions available to Illinois residents and acknowledged that the treasurer’s
document from which he obtained Gatewood’s address indicated the subject property did not
have homestead exemption. He stated that some people do not know to apply for the
exemptions.
¶9 The trial court found that Sodeman’s efforts to serve Gatewood per the statutory
requirements were “cursory” and not diligent and denied Sodeman’s petition for sale in error.
He filed a motion to reconsider, which the trial court denied after a hearing. Sodeman
appealed.
¶ 10 ANALYSIS
¶ 11 The issue on appeal is whether the trial court erred when it denied Sodeman’s petition for a
tax sale. Sodeman argues that the trial court’s finding that he failed to make a bona fide attempt
to comply with the statutory requirements to serve Gatewood was in error. He maintains that,
except for lack of notice to Gatewood, he strictly complied with the statutory requirements and
put forth a bona fide effort sufficient for the trial court to find a sale in order.
¶ 12 To fulfill the statutory requirements for a tax deed, a buyer must (1) search the county
records to identify the interested parties, (2) physically examine the property to identify any
occupants, (3) file the petition for tax deed, (4) deliver a take notice form to the circuit clerk to
be mailed to all interested parties, (5) deliver a take notice to the county sheriff for service on
all interested parties, and (6) deliver a notice to be published. 35 ILCS 200/22-5 through 22-25
(West 2014); In re Application of the Kane County Collector, 297 Ill. App. 3d 745, 746-47
(1998).
¶ 13 Where a trial court refuses to order the issuance of a tax deed due to the buyer’s failure to
fulfill the statutory requirements and the buyer made a bona fide attempt to comply with
statutory requirements for a tax deed to issue, the buyer may petition the court to declare the
tax sale to be a sale in error. 35 ILCS 200/22-50 (West 2014). A sale in error ruling entitles the
buyer to receive a refund of all the amounts he has paid. In re Application of the County
Collector, 325 Ill. App. 3d 152, 156 (2001). It is the petitioner’s burden to establish that he
-3-
complied with the statutory requirements or made a bona fide attempt to comply. In re
Application of the County Collector, 219 Ill. App. 3d 396, 403 (1991).
¶ 14 “A bona fide attempt is one made ‘[i]n or with good faith; honestly, openly, and sincerely;
without deceit or fraud’ ” and “[i]t is ‘[r]eal, actual, genuine, and not feigned.’ ” Kane County
Collector, 297 Ill. App. 3d at 748 (quoting Black’s Law Dictionary 177 (6th ed. 1990)).
Whether a buyer made a bona fide attempt to comply with the statutory requirements is a
factual question, and we will not reverse a trial court’s determination unless it was against the
manifest weight of the evidence. Kane County Collector, 297 Ill. App. 3d at 748.
¶ 15 Sodeman maintains he demonstrated that he made a bona fide attempt to comply with the
statutory notice requirements and is entitled to a sale in error. The trial court found that he did
not exercise diligence in locating and serving Gatewood and therefore did not make a bona fide
attempt to obtain the tax deed. The trial court determined “the bare minimum” efforts to serve
Gatewood put forth by Sodeman did not support a bona fide attempt to comply. We agree with
the trial court.
¶ 16 To be entitled to a finding of a sale in error and a refund, Sodeman had to establish that he
made a good faith effort to fulfill the statutory steps necessary to obtain a tax deed. The
mandatory steps included providing notice to the property owner and taxpayer, Gatewood.
There is no dispute that Gatewood was never personally served notice of the tax sale of her
property. In fact, in his motion to reconsider the denial of his request for a sale in error,
Sodeman submitted that he complied with the statutory notice requirements with “one
exception,” Gatewood, to whom he had failed to give notice. He further submitted that his
strict compliance with all the statutory requirements, with the “one exception” of lack of notice
to Gatewood, constituted a bona fide attempt to comply.
¶ 17 His actions do not support a finding of a bona fide effort. When Sodeman made a personal
visit to the property, he was told by the occupants that Gatewood did not live there and they did
not know her whereabouts. Although this information conflicted with the address he received
from the treasurer’s and assessor’s offices, he did not contact any other public record keepers,
such as the circuit clerk’s office. Had he performed a search of the clerk’s website, he would
have found Gatewood’s current address in the foreclosure files. He was aware there was no
homestead exemption on the property. He did not call the phone number he obtained from an
Internet search. He did not receive a return of service from the sheriff’s department or check
the file for one. The certified mail receipt from the clerk’s mailing of the notice indicated the
notice was delivered to Marissa Martin at the subject address and that Gatewood was unknown
there.
¶ 18 Sodeman persisted in maintaining that he was entitled to the tax deed or to a finding of sale
in error despite knowing that Gatewood was not an occupant at the subject property and was
never properly served. He attested in his affidavit in support of his petition for a tax deed that
abode service was secured but did not present any information to support his claim. He knew
there was no homestead exemption on the property but surmised it was due to Gatewood’s
failure to claim it. Sodeman was aware she had not been served and, as the trial court observed,
did not take any further steps to find Gatewood. Sodeman’s actions do not demonstrate good
faith or a real, genuine attempt to comply with the statutory notice requirements. The trial court
found that although he made “some efforts,” Sodeman failed to comply with the minimum
requirements of the statute and did not demonstrate a bona fide attempt to comply. We find the
trial court did not err in denying his petition for a sale in error.
-4-
¶ 19 For the foregoing reasons, the judgment of the circuit court of Rock Island County is
affirmed.
¶ 20 Affirmed.
-5-