Newline Holdings, LLC v. ND Financial, LLC , 2024 IL App (1st) 230136-U ( 2024 )

2024 IL App (1st) 230136-UTHIRD DIVISION
July 3, 2024
No. 1-23-0136
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
______________________________________________________________________________
NEWLINE HOLDINGS, LLC, ) Appeal from the
) Circuit Court of
Appellant, ) Cook County
)
v. )
)
ND FINANCIAL, LLC, ) No. 22 COTD 1195
)
Petitioner-Appellee )
)
(Maria Pappas, as Cook County Treasurer and Ex Officio ) Honorable
Cook County Collector, ) Maureen O. Hannon,
) Judge Presiding.
Respondent-Appellee). )
____________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: Dismissing an appeal as moot where the appellee’s certificate of purchase of
delinquent property taxes was returned and the purchase amount was refunded by the
county treasurer during the pendency of the appeal.
¶2 ND Financial, LLC (ND Financial) purchased certain delinquent property taxes on real
estate located in the 5400 block of South Wabash Avenue in Chicago (the property) at a
scavenger tax sale held by the Cook County Treasurer (Treasurer). ND Financial initially filed a
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petition for tax deed in the circuit court of Cook County but subsequently filed a petition for a
declaration of sale in error, based on a defect in one of its required notices under the Property
Tax Code (35 ILCS 200/1-1 et seq. (West 2022)). Newline Financial, LLC (Newline)—which
held certificates of purchase of delinquent taxes on the same property for different tax years than
ND Financial—filed a motion to dismiss ND Financial’s petition for tax deed. In the dismissal
motion, Newline suggested that ND Financial engaged in tax sale fraud based on its purported
affiliation with the owner of the property. ND Financial responded, in part, that Newline was not
a party to the circuit court proceedings and did not seek leave to intervene in the proceedings.
The circuit court ultimately denied ND Financial’s petition for tax deed and vacated its
certificate of purchase as a sale in error; Newline’s motion to dismiss was also denied.
¶3 On appeal, Newline advances various challenges to the circuit court’s consideration of
and rulings on ND Financial’s sale in error. For the reasons discussed herein, we find that
ND Financial’s surrender of its certificate of purchase and the Treasurer’s refund of its payment
render the instant appeal moot, and we thus dismiss the appeal.
¶4 BACKGROUND
¶5 ND Financial Purchases Delinquent Taxes
¶6 ND Financial purchased certain delinquent taxes on the property at a scavenger tax sale
held by the Treasurer in February 2022. A certificate of purchase numbered 21S-0003766 was
issued to ND Financial; the certificate listed the delinquent tax years as 2012 through 2018.
ND Financial subsequently filed a “notice of sale and redemption rights” pursuant to section 22-
5 of the Property Tax Code (35 ILCS 200/22-5 (West 2022)) (section 22-5 notice).
¶7 On August 22, 2022, ND Financial filed a petition for tax deed in the circuit court of
Cook County. A notice issued by the clerk of the circuit court on August 30, 2022, stated that a
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“petition has been filed for a tax deed which will transfer title and the right of possession of this
property if redemption is not made on or before February 3, 2023.”
¶8 On January 3, 2023, ND Financial filed a petition for a declaration of a sale in error.
In the petition, ND Financial stated that it learned in December 2022 that the section 22-5 notice
incorrectly listed the tax years sold as “2010-2018” instead of “2012-2018.” Representing that it
was unable to prove that it complied with section 22-5 of the Property Tax Code, ND Financial
sought an order vacating the tax sale and directing the Treasurer to refund the amount of the
certificate of purchase plus any subsequent taxes and costs which it had paid.
¶9 Newline’s Appearance and Motion to Dismiss
¶ 10 On January 11, 2023, attorney Bryan Hughes (Hughes) filed an “additional appearance”
on behalf of Newline and then an “appearance” on behalf of Newline “as Respondent.” On the
same date, Hughes moved to withdraw his additional appearance, which was “filed incorrectly.”
¶ 11 On January 13, 2023, Newline filed a motion to dismiss ND Financial’s petition for tax
deed pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)
(West 2022)). Newline asserted that it maintained an interest in the property through its
purchase of the 2013 through 2015 taxes on September 20, 2017, as evidenced by certificate of
purchase number 17S-0005093. According to Newline, the owner of the property (i.e., the real
estate in the 5400 block of South Wabash) was affiliated with ND Financial, and therefore
ND Financial lacked standing to prosecute the tax deed proceeding.
¶ 12 Newline also argued that ND Financial’s section 22-5 notice falsely claimed to include
years which were not included in the scavenger sale. Specifically, Newline contended that
ND Financial’s certificate only contained the taxes for four years—2012, 2016, 2017, and
2018—and that Newline’s 2017 certificate of purchase reflected its ownership of the taxes for
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2013, 2014, and 2015. According to the motion, Newline’s certificate of purchase was the
subject of separate proceedings in the circuit court of Cook County under case number 17 COTD
3820.
¶ 13 Newline further maintained ND Financial failed to provide proper notice to all interested
parties pursuant to section 22-10 of the Property Tax Code (35 ILCS 200/22-10 (West 2022)). In
addition to its alleged interest in the property based on the 2017 certificate of purchase, Newline
represented that it had purchased the 2019 taxes on the property in a tax sale held in May 2022.
¶ 14 Proceedings on January 13, 2023
¶ 15 On January 13, 2023, ND Financial filed a motion to strike Newline’s appearance,
contending that Newline was not a “party/respondent” and that Newline had failed to move to
intervene in the action on any recognized basis.
¶ 16 During a hearing on the same date on its motion for sale in error, ND Financial stated that
Newline had brought the error in the section 22-5 notice to its attention “in another proceeding.”
The Treasurer—represented by the Cook County State’s Attorney—objected to ND Financial’s
sale in error application on two grounds. The Treasurer initially argued that a petitioner’s
application for tax deed must be denied prior to requesting the sale in error under section 22-50
of the Property Tax Code (35 ILCS 200/22-50 (West 2022)). The Treasurer further maintained
that ND Financial did not present sufficient evidence to establish it had made a bona fide attempt
to comply with the statutory requirements for a tax deed, as is contemplated by section 22-50.
ND Financial asserted that it provided sufficient evidence to demonstrate that its defective notice
amounted to a bona fide attempt since the defect was inadvertent, and, in the interest of judicial
economy, the circuit court could grant the sale in error without first formally denying the petition
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for tax deed.
¶ 17 Over ND Financial’s objection, Hughes (Newline’s counsel) argued that Newline agreed
that ND Financial was not entitled to a tax deed, but that Newline challenged whether a sale in
error should be granted and whether only the State’s Attorney (on behalf of the Treasurer) could
participate in the proceedings on the sale in error. Hughes further argued that the sale in error
“should be held in abeyance” until the circuit court determined whether the sale should have
occurred. Newline requested a “ruling on the merits” prior to consideration of the petition for
sale in error.
¶ 18 The circuit court granted ND Financial’s petition for a declaration of sale in error. In a
written order entered on January 13, 2023, the circuit court (a) denied the petition for tax deed
with prejudice, (b) vacated and set aside certificate of purchase 21S-0003766 as a sale in error
under section 22-50 of the Property Tax Code, and (c) directed the Treasurer to refund taxes and
costs without interest to ND Financial upon its surrender of the certificate of purchase.
¶ 19 Proceedings on January 20 and January 23, 2023
¶ 20 Following a hearing on January 20, 2023, the circuit court entered a written order which
stated that Newline’s additional appearance was withdrawn. Newline’s motion to dismiss was
set for ruling on January 23, 2023.
¶ 21 On January 23, 2023, the circuit court entered a written order which (a) characterized
ND Financial’s motion to strike Newline’s appearance as “moot,” based on the circuit court’s
January 13 order granting the sale in error and (b) noted that the January 13 sale in error order
“stands.” The circuit court also denied Newline’s motion to dismiss pursuant to section 2-619
“for reasons stated in open court.” During the January 23 hearing, the circuit court stated, in
part, that any fraud in connection with the scavenger sale could be prosecuted by the State’s
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Attorney, but that the purported fraud was not “relevant to this case which is before us,” where
the circuit court had granted the sale in error. The circuit court’s written order closed and
dismissed the case.
¶ 22 On January 23, 2023, Newline filed a notice of appeal challenging the orders entered on
January 20, 2023, and January 23, 2023.
¶ 23 ANALYSIS
¶ 24 Arguments in Appellate Briefs
¶ 25 Newline advances three primary arguments on appeal. It initially contends that the
circuit court erred “when it failed to follow controlling law regarding the jurisdiction it possessed
to entertain” ND Financial’s right to obtain a sale in error. Newline also maintains that the
circuit court erred by finding that it lacked standing to respond to the petition for a declaration of
a sale in error. Newline further asserts that the circuit court erred in finding that ND Financial
was entitled to a sale in error based on a bona fide attempt to comply with the statutory
requirements for the issuance of the tax deed (see 35 ILCS 200/22-50 (West 2022)) without first
conducting an evidentiary hearing.
¶ 26 Both the Treasurer and ND Financial have filed appellee briefs. The Treasurer argues
that the circuit court properly declined Newline’s participation in the sale in error proceeding, as
Newline was not a party and did not petition to intervene. ND Financial raises the same
argument and contends, more broadly, that the denial of its petition for tax deed and the grant of
the section 22-50 sale in error was not against the manifest weight of the evidence. ND Financial
further maintains that Newline assigned its 2017 certificate on March 13, 2023, to another
entity—Blue Ocean 21-1, LLC—and thus Newline “has absolutely no interest or standing to
proceed with this appeal.” Newline replies, in part, that at the time ND Financial filed its
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petition for tax deed, Newline had “an existing interest in the property by virtue of both *** prior
and subsequent tax certificates.”
¶ 27 Motions Taken with the Case
¶ 28 We further note that two motions were taken with the case in this appeal: one filed by ND
Financial, and the other by Newline.
¶ 29 ND Financial filed a motion to dismiss the appeal, arguing that the appellate court lacks
jurisdiction to consider the appeal, as (a) Newline was not a party to the tax deed proceeding and
failed to seek leave to intervene, and (b) Newline failed to list the correct orders in its notice of
appeal, i.e., Newline did not appeal from the order entered on January 13, 2023. ND Financial
further contends that the appeal is moot, as its surrender of the certificate of purchase and its
receipt of a refund from the Treasurer “negates the existence of an actual controversy.” Newline
responds that intervention was not necessary, as “Newline was clearly an interested party by
virtue of the tax certificates it held at the time of the filing of 22 COTD 1195.” Newline further
argues that its reference to the incorrect order in its notice of appeal was a scrivener’s error.
Finally, Newline maintains that the appeal is not moot as the key issue has not been resolved,
i.e., whether ND Financial had a right to file a tax deed petition given its alleged relationship
with the property owner. ND Financial argues in reply that since the judgment of the circuit
court was not stayed, “nothing prevented the cancellation of the certificate[,] and the Treasurer
accepted the certificate and issued a refund pursuant to the judgment.” ND Financial thus asserts
that the subject matter of the tax proceeding no longer exists.
¶ 30 The second motion taken with the case is Newline’s motion to amend the notice of appeal
to correct the dates of the circuit court orders being appealed, changing the dates from
(a) January 20, 2023, and January 23, 2023, to (b) January 13, 2023, and January 23, 2023.
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ND Financial responds, in part, that this relief should be denied, as Newline was not a party in
the circuit court proceedings, and Illinois Supreme Court Rule 303 (eff. July 1, 2017)—which
addresses appeals from final judgments of the circuit court in civil cases—does not apply to non-
parties.
¶ 31 As discussed below, we find that the surrender of ND Financial’s certificate and the total
refund by the Treasurer negated the existence of an actual controversy, and we thus dismiss the
appeal as moot.
¶ 32 Mootness
¶ 33 The existence of an actual controversy is necessary for appellate jurisdiction, as
reviewing courts “will generally not decide abstract, hypothetical, or moot questions.” In re
Andrea F., 208 Ill. 2d 148, 156 (2003). Accord In re Benny M., 2017 IL 120133, ¶ 17. “An
appeal is considered moot where it presents no actual controversy or where the issues have
ceased to exist.” Andrea F., 208 Ill. 2d at 156. The test for mootness is whether the issues
involved in the circuit court proceedings no longer exist, as intervening events have rendered it
impossible for the appellate court to grant effectual relief to the complaining party. Id.;
Benny M., 2017 IL 120133, ¶ 17. See also Rasky v. Anderson, 62 Ill. App. 3d 633, 635 (1978)
(noting that “a court of review will not ordinarily dispose of an appeal on its merits where the
court has notice of facts that demonstrate that no actual rights or interests of the parties will be
affected thereby”).
¶ 34 In this case, we are unable to render any effective relief to Newline. Newline does not
contest that the judgment for a sale in error refund was not stayed (see Ill. S. Ct. R. 305 (eff. July
1, 2017)) or that ND Financial returned its certificate of purchase of delinquent property taxes to
the Treasurer, and the Treasurer fully refunded its payment during the pendency of this appeal.
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See Prospect Heights Fire Protection District v. Department of Employment Security, 2021 IL
App (1st) 182525, ¶ 23 (“[w]hen considering the issue of mootness, the court may take judicial
notice of events and materials that do not appear in the record to determine whether an actual
controversy exists or whether the matter is moot”). As ND Financial holds no interest of any
kind with respect to the property, the subject matter of the tax deed proceeding no longer exists.
¶ 35 We observe that Newline poses various questions on appeal, e.g., whether ND Financial
was a valid certificate holder with the ability to pursue a tax deed and whether the circuit court
was required to resolve Newline’s challenges regarding ND Financial’s standing prior to
considering its petition for sale in error. As Illinois courts do not decide moot questions or
render advisory opinions, however, we will not (and indeed cannot) address Newline’s
contentions. See Staake v. Department of Corrections, 2022 IL App (4th) 210071, ¶ 30.
Similarly, as we find that the issues on appeal have been rendered moot by the return of the
certificate and the subsequent refund from the Treasurer, we need not address ND Financial’s
other arguments, e.g., regarding Newline’s lack of standing, its failure to intervene, and its
assignment of its 2017 certificate.
¶ 36 CONCLUSION
¶ 37 As discussed above, the issues before this Court have been rendered moot, and we
therefore must dismiss the appeal. See Andrea F., 208 Ill. 2d at 156. ND Financial’s motion to
dismiss the appeal (which was taken with the case) is hereby granted, and Newline’s motion to
amend its notice of appeal (which was also taken with the case) is moot. Based on our dismissal
of this appeal on mootness grounds, we need not consider the parties’ other contentions.
¶ 38 Appeal dismissed.
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