Village of Maywood v. LLC 1 07CH12487 , 2023 IL App (1st) 220653-U ( 2023 )

2023 IL App (1st) 220653-UFIRST DISTRICT,
FIRST DIVISION
August 21, 2023
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
IN THE MATTER OF THE APPLICATION OF ) Appeal from the
THE COUNTY TREASURER AND EX-OFFICIO ) Circuit Court of
COUNTY COLLECTOR OF COOK COUNTY, ) Cook County, Illinois.
ILLINOIS FOR ORDER OF JUDGMENT AND )
SALE, ET AL ) Nos. 2018COTD004235,
) 2018COTD004236,
(Village of Maywood, ) 2018COTD004237, &
Petitioner-Appellant, ) 2018COTD004238
v. )
) Honorable
LLC 1 07CH12487, ) Paul Karkula,
Respondent-Appellee). ) Judge Presiding.
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Lavin and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: (1) Failure to obtain leave of court to file amended tax deed petition did not deprive
circuit court of jurisdiction to adjudicate said petition. (2) Tax deed petitioner’s
failure to obtain leave of court to extend the period of redemption after filing a tax
deed petition did not render subsequently issued tax deeds void.
¶2 LLC 1 07CH12487 (“respondent”) filed a section 2-1401 petition to void tax deeds
issued to the Village of Maywood (“Village”) regarding properties to which respondent held
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
legal title. Respondent alleged the tax deeds were void because the Village failed to obtain leave
of court to file an amended tax deed petition and to extend the period of redemption. The circuit
court granted summary judgment to respondent. For the reasons that follow, we reverse.
¶3 BACKGROUND
¶4 The subject property, located at 415 Roosevelt Road in Maywood, Illinois (“property”)1,
is commercial property with a “vacant and abandoned” structure and a paved lot. Due to
nonpayment of taxes for 2011, the property was offered for sale at the 2013 Cook County annual
tax sale, but it was not sold and was forfeited to the State of Illinois. Cook County purchased the
delinquent taxes and was issued a tax certificate which it assigned to the Village on February 27,
2018.
¶5 The original period of redemption was set to expire on June 12, 2018. Prior to filing any
petition for tax deed, the Village extended the period of redemption twice: once on May 1, 2018,
to June 12, 2018, and again on May 30, 2018, to December 12, 2018. On July 13, 2018, the
Village filed its initial petition for tax deed, alleging that it was “entitled to the issuance of a tax
deed if [the property] is not redeemed *** within the time allowed by law.”
¶6 Pursuant to section 22-10 of the Property Tax Code (Code) (35 ILCS 200/22-10 (West
2016)),
“[a] purchaser or assignee shall not be entitled to a tax deed *** unless, not less than 3
months nor more than 6 months prior to the expiration of the period of redemption, he or
she gives notice of the sale and the date of the expiration of the period of redemption to
the owners, occupants, and parties interested in the property.”
1
This appeal was consolidated with three other appeals filed by the Village, each concerning a
different parcel of real property that was subject to the tax sale and tax certificate of purchase issued to
the Village. The legal issues are identical in each case. For purposes of clarity, we shall refer only to the
property that is the subject of the initial appeal.
-2-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
Since the property’s redemption date was December 12, 2018, the statutory period for providing
section 22-10 notices ran from June 12 to September 12, 2018. On August 8, 2018, the Village
delivered the requisite notices to the clerk of the circuit court to be sent by certified mail to the
relevant parties. On September 24, 2018, the Clerk’s Office sent the Village an email advising
that the notices had not been “mailed out by the Clerk’s Office in a timely manner.” It is
undisputed that the Clerk’s office mailed the notices on September 18, 2018, six days after the
statutory period ended.
¶7 On October 2, 2018, despite the fact that the original petition for tax deed had been filed
on July 13, 2018, the Village unilaterally extended the redemption date to March 12, 2019
without leave of court. On November 19, 2018, the Village unilaterally extended the redemption
date again to March 30, 2019. On November 30, 2018, the Village filed a pleading styled
“Amended Petition for Tax Deed” stating that it would be entitled to the issuance of a tax deed if
the property was not redeemed by the extended redemption date of March 30, 2019. It is
undisputed that the Village did not request or obtain leave of court to file an amended petition.
The Village additionally directed that statutory notices be sent to all interested parties reflecting
the extended period of redemption and the filing date of the amended petition.
¶8 The property was not redeemed by March 30, 2019. Following a hearing, on August 26,
2019, the circuit court issued an order directing the issuance of a tax deed to the Village for the
property. The Cook County Clerk issued a tax deed to the Village on the same day.
¶9 On November 18, 2019, respondent filed the petition which is the subject of the instant
appeal, styled as a “Petition to Void Order Directing Issuance of Tax Deed” under section 2-
1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)). Respondent raised two
contentions of error: First, the Village failed to obtain leave of court to file its Amended Petition
-3-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
for Tax Deed. Citing In re Estate of Zander, 242 Ill. App. 3d 774, 776 (1993), respondent argued
that “[a]mendments filed without leave of court are said to be a nullity which should be
stricken.” According to respondent, the amended petition was “a nullity,” there was no valid
petition pending, and the circuit court lacked jurisdiction to issue a tax deed.
¶ 10 Respondent also argued that the Village had failed to obtain leave of court to extend the
period of redemption, in violation of section 21-385 of the Code. 35 ILCS 200/21-385 (West
2018). Finally, respondent argued that the section 22-10 notices sent out in connection with the
Village’s Amended Petition for Tax Deed (which reference the extended period of redemption)
were “invalid[].”
¶ 11 The parties filed cross-motions for summary judgment. On April 13, 2022, the trial court
granted summary judgment to respondent, stating:
“It appears to me that the Village of Maywood just kind of unilaterally decided to change
the whole procedure here, and you can’t do that. If I allow you to continue to do that back
and forth, back and forth, it wouldn’t make any sense because people are left in the dark.
Without leave of Court and proper procedure everyone has to do on my call. I will grant
LLC1’s petition and—rather their motion, and that’s that basically.”
Subsequently, on May 6, 2022, the trial court entered an order finding that the August 26, 2019
order for tax deed and the subsequent tax deed granted to the Village were void.
¶ 12 ANALYSIS
¶ 13 We review the trial court’s grant of summary judgment de novo (Williams v. Manchester,
228 Ill. 2d 404, 417 (2008)), keeping in mind that summary judgment is appropriate where “there
is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a
-4-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
matter of law” (735 ILCS 5/2–1005(c) (West 2018)) and construing the record strictly against the
movant and liberally in favor of the nonmoving party.
¶ 14 Normally, the grounds for section 2-1401 relief in tax deed proceedings are limited to
those enumerated in section 22-45 of the Code, namely, proof that (1) the taxes were paid prior
to sale, (2) the property was exempt from taxation, (3) the tax deed was procured through the tax
purchaser’s fraud or deception, or (4) the owner “was not named as a party in the publication
notice as set forth in Section 22-20, and *** 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.” 35 ILCS 200/22-45 (West 2018). Respondent does not allege that any of
these grounds for relief exist. Rather, respondent relies on the language of section 2-1401 stating
that “[n]othing contained in this Section affects any existing right to relief from a void order or
judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2-1401(f) (West
2018). See also Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002) (“[a]
judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the
subject matter, or which lacks the inherent power to make or enter the particular order involved,
is void, and may be attacked at any time or in any court” (internal quotation marks omitted)).
¶ 15 The Village’s Amended Petition
¶ 16 Respondent argues that the circuit court’s tax deed order is void because the Village’s
amended petition, filed without leave of court, was “a nullity” and, without a valid petition
pending, the circuit court lacked jurisdiction to issue a tax deed. Illinois law does not support this
proposition. On the contrary, “[t]he idea that the filing of an amended [pleading] was a void act
***, was a nullity, and constituted error that was ‘jurisdictional’ has been rejected by this court.”
Fischer v. Senior Living Properties, L.L.C., 329 Ill. App. 3d 551, 555 (2002).
-5-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
¶ 17 In Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 353-55 (1998), our supreme
court found that a party’s failure to gain leave to amend its complaint to add a prayer for
prejudgment interest did not deprive the circuit court of jurisdiction to award such interest. The
Ragan court reasoned that interpreting the failure to obtain leave to amend as a jurisdictional
defect would frustrate the liberal pleading provisions in the Code of Civil Procedure aimed at
doing justice between the parties despite technical defects in the pleadings. Id. at 354; see also
VC & M, Ltd. v. Andrews, 2013 IL 114445, ¶ 22 (reaffirming Ragan).
¶ 18 Respondent argues that Ragan’s jurisdictional analysis is mere dicta because the court
did not rely solely upon that analysis, but also found that the defendant waived its jurisdictional
argument by failing to raise it in the trial court. Id. at 355. However, it is well established that
“an expression of opinion upon a point in a case argued by counsel and deliberately passed upon
by the court, though not essential to the disposition of the cause,” is a judicial dictum that is
“entitled to much weight.” Exelon Corp. v. Dep’t of Revenue, 234 Ill. 2d 266, 277-78 (2009); see
also Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 237 (2010) (“Our opinion on this
matter can hardly be considered an ‘aside’ and, if a dictum, is a judicial dictum. Accordingly, it is
entitled to much weight and should be followed unless found to be erroneous”). Similarly, the
Ragan court’s detailed analysis of the jurisdictional issue can hardly be considered an “aside”
and is entitled to much weight. Subsequent appellate court cases have followed Ragan in holding
that failure to obtain leave to amend a pleading does not deprive the circuit court of jurisdiction
over the controversy. See, e.g., Fischer, 329 Ill. App. 3d at 555; Johnson v. Ingalls Memorial
Hospital, 402 Ill. App. 3d 830, 841 (2010).
¶ 19 In support of its argument that the Village’s amended filing was “a nullity,” respondent
relies primarily on the 1993 case of Zander, in which Zander’s estate appealed the trial court’s
-6-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
ruling in favor of the Department of Public Aid, arguing that “the amended claim, on which the
trial court granted judgment, was a nullity, since the Department failed to seek leave of court to
file it.” Zander, 242 Ill. App. 3d at 776. In this context, the Zander court stated: “Amendments
filed without leave of court are said to be a nullity which should be stricken.” Id. However, the
court did not find the amendment to be a nullity but held that the estate waived any such claim
by failing to raise it in the trial court. Id. at 777. Citing section 2-616 of the Code of Civil
Procedure, which provides that “[a]t any time before final judgment amendments may be
allowed on just and reasonable terms” (735 ILCS 5/2-616 (West 2018)), the court explained that
“[t]he provisions of section 2-616 *** requiring leave of court are directory, not mandatory, and
accordingly may be waived by the parties. An adverse party is not harmed by a failure to obtain
leave if there is no element of surprise or prejudice because of that failure.” Zander, 242 Ill. App.
3d at 777. Thus, Zander does not support the proposition that an amended petition filed without
leave of court is a nullity. Moreover, any such holding would be overruled by our supreme
court’s decision in Ragan.
¶ 20 Although we do not condone the Village’s failure to obtain leave of court before
amending its petition, it is well established that “[a]n order is rendered void not by error or
impropriety but by lack of jurisdiction by the issuing court.” Vulcan Materials Co. v. Bee
Construction, 96 Ill. 2d 159, 165 (1983). As our supreme court has explained, “a tax-sale
proceeding is in rem and the court acquires jurisdiction over the land when the county collector
makes his application for judgment and order for sale.” Id. Once acquired, the court retains
jurisdiction to issue all necessary orders to effectuate the tax sale and to issue tax deeds. Id.Since, as discussed, the Village’s failure to obtain leave to file its amended petition did not
-7-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
render its petition “a nullity,” the circuit court retained jurisdiction to hear the amended petition
and issue tax deeds for the subject property.
¶ 21 Extending the Period of Redemption
¶ 22 In the trial court, respondent raised a second ground for voiding the Village’s tax deed
order, namely, that after filing its petition for tax deed, the Village extended the period of
redemption without first obtaining leave of court. Section 21-385 of the Code, which governs
extensions to the period of redemption, provides:
“The purchaser or his or her assignee of property sold for nonpayment of general
taxes or special assessments may extend the period of redemption at any time before the
expiration of the original period of redemption, or thereafter prior to the expiration of any
extended period of redemption, for a period which will expire not later than 3 years from
the date of sale[.] *** If prior to the expiration of the period of redemption or extended
period of redemption a petition for tax deed has been filed under Section 22-30, upon
application of the petitioner, the court shall allow the purchaser or his or her assignee to
extend the period of redemption after expiration of the original period or any extended
period of redemption, provided that any extension allowed will expire not later than 3
years from the date of sale.” 35 ILCS 200/21-385 (West 2018).
¶ 23 Here, after filing its petition for tax deed, the Village unilaterally extended the period of
redemption on two occasions without making an application to the court. The trial court clearly
considered this to be in contravention of section 21-385, stating that the Village “just kind of
unilaterally decided to change the whole procedure here” and, as a result, “people are left in the
dark.” The court’s statements are consistent with the language of the statute, which provides that
-8-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
“[i]f *** a petition for tax deed has been filed,” an extension of the period of redemption shall be
granted by the court “upon application of the petitioner.” Id.¶ 24 However, assuming arguendo that the Village violated section 21-385, this procedural
impropriety does not render the tax deed order void. See Vulcan, 96 Ill. 2d at 165 (“An order is
rendered void not by error or impropriety but by lack of jurisdiction by the issuing court”). As
discussed, the court in a tax sale proceeding acquires in rem jurisdiction over the land when the
county collector makes his application for judgment and order for sale, and thenceforth retains
jurisdiction to issue all necessary orders to effectuate the tax sale and to issue tax deeds. Id. At
most, the Village’s procedural impropriety would render the trial court’s order voidable, but not
void, as would be necessary for respondent to obtain relief under section 2-1401. See 735 ILCS
5/2-1401(f) (West 2018) (“[n]othing contained in this Section affects any existing right to relief
from a void order or judgment” (emphasis added)).
¶ 25 Notice
¶ 26 As an alternative ground for affirming the trial court’s judgment, respondent argues, for
the first time on appeal, that the amended petition and the resulting tax deed are void because the
Village did not notify respondent of the filing of the amended petition. Citing In re Custody of
Ayala, 344 Ill. App. 3d 574, 586 (2003), respondent argues that “due process of law requires that
a party be accorded procedural fairness, i.e. given notice and an opportunity to be heard.
[Citation.] Parties who have properly appeared in an action are entitled to notice of any
impending motions or hearings.”
¶ 27 Although the Village did not notify respondent of the filing of the amended petition, the
record reflects that it subsequently sent respondent statutory notices advising that “THIS
PROPERTY HAS BEEN SOLD FOR DELINQUENT TAXES,” that the period of redemption
-9-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
would expire on March 30, 2019, and that a petition had been filed for a tax deed which would
transfer title and right to possession of the property if redemption was not made by March 30,
2019. Respondent was further advised that redemption could be made at any time prior to March
30, 2019 by applying to the County Clerk of Cook County and that the matter was set for hearing
on April 5, 2019. Thus, respondent was advised of the impending loss of its property if not
redeemed within the period of redemption and given an opportunity to appear and be heard at the
April 5 hearing.
¶ 28 More importantly, respondent provides no support for its assertion that, in a tax deed
proceeding, a tax purchaser’s failure to notify a property owner of the filing of an amended
petition renders the trial court without jurisdiction to issue a tax deed. Ayala, 344 Ill. App. 3d
574, which involves a custody dispute, is inapposite. Pursuant to Vulcan, 96 Ill. 2d at 165, the
trial court retained jurisdiction to issue the tax deed notwithstanding the Village’s alleged
procedural impropriety.
¶ 29 Respondent finally argues that the Village’s statutory notices were inadequate because
they referenced only the filing date of the amended petition and not the filing date of the original
petition. Respondent cites no authority for the proposition that the Village was required to
reference the filing date of its original petition in its notices and has therefore forfeited this
contention. See Gakuba v. Kurtz, 2015 IL App (2d) 140252, ¶ 19 (appellant forfeited issue by
failing to cite legal authority).
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, we find that the circuit court had jurisdiction to enter the
orders directing issuance of tax deeds to the Village. We reverse the judgment of the circuit court
granting summary judgment in favor of respondent on grounds that the tax deeds issued to the
-10-
Nos. 1-22-0653, 1-22-0654, 1-22-0655, 1-22-0656 (cons.)
Village were void. This matter is remanded to the circuit court for the entry of orders consistent
with this decision.
¶ 32 Reversed and remanded.
-11-