in-re-application-of-the-county-collector-for-judgment-order-of-sale ( 2015 )

Illinois Official Reports
Appellate Court
In re Application of the County Collector for Judgment & Order of Sale
Against Lands & Lots Returned Delinquent for Nonpayment of
General Taxes for the Year 2009,
2015 IL App (4th) 140810Appellate Court In re: the Application of the County Collector for Judgment and Order
Caption of Sale Against Lands and Lots Returned Delinquent for Nonpayment
of General Taxes for the Year 2009, VINOD C. GUPTA,
Petitioner-Appellant, v. RAY ELDRIDGE, JR., Beneficial Owner of
Magna Trust Company Land Trust No. 3832 Created by Trust
Agreement Dated October 25, 1988, Respondent-Appellee.
District & No. Fourth District
Docket No. 4-14-0810
Filed September 3, 2015
Decision Under Appeal from the Circuit Court of Macon County, No. 13-TX-96; the
Review Hon. Albert G. Webber, Judge, presiding.
Judgment Affirmed.
Counsel on Vinod C. Gupta, of Boca Raton, Florida, appellant pro se.
Appeal
Frank H. Byers II, of Frank H. Byers II, Ltd., of Decatur, for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Vinod C. Gupta, appeals the trial court’s denial of his petition for issuance of a
tax deed and finding of a sale in error pursuant to section 22-50 of Property Tax Code (Code)
(35 ILCS 200/22-50 (West 2012)). He argues the court erred in finding he failed to comply
with the relevant statutory requirements for notice to interested parties. Alternatively,
petitioner maintains the court should have found a sale in error under a different section of the
Code–section 21-310(a)(5) (35 ILCS 200/21-310(a)(5) (West 2012)). We affirm.
¶2 I. BACKGROUND
¶3 On November 19, 2010, petitioner purchased real property at a county tax sale for
$44,306.26, representing the amount of delinquent 2009 real estate taxes, interest, and fees
owed on the property. He received a certificate of purchase which identified the legal
description of the property as 1800 East Pershing Road, Lot 1 Dowd’s Commercial Park.
¶4 On June 17, 2013, petitioner filed a petition seeking an order from the trial court to direct
the county clerk to issue him a tax deed to the property. The record reflects he sent “take
notices,” identifying the property at issue as having been sold for delinquent taxes, to
individuals or entities he believed were required to receive such notice under the Code.
Specifically, petitioner sent notice to (1) K’s Merchandise Mart, Inc. (K’s Merchandise), in
care of David Kay Eldridge; (2) K’s Merchandise, to the attention of Tim Viewig; (3) CT
Corporation System, as the registered agent for K’s Merchandise; and (4) Gordon Brothers
Retail Partners, LLC (Gordon Brothers).
¶5 On October 23, 2013, David Kay Eldridge filed a motion to dismiss and objection to
issuing a tax deed. He argued petitioner failed to comply with the Code’s notice requirements,
asserting petitioner sent notice to parties who had no interest in the property at issue and failed
to send notice to the parties who did have an interest in the property. David asserted interested
parties included (1) Magna Trust Company, Land Trust No. 3832, the record owner of the
property; (2) Patricia Kay Eldridge (now known as Patricia Kay Sammons), David Christopher
Eldridge, Lynn Eldridge, and Tempest Grader, who held a recorded mortgage on the property;
(3) the City of Decatur, which held a weed lien on the property; and (4) Ray Eldridge, Jr., and
Tempest Grader, who were tenants and in current possession of the property by virtue of an
oral lease. He further alleged that K’s Merchandise had been a month-to-month tenant of the
property until its tenancy was terminated four years prior. He denied that K’s Merchandise had
ever been a record owner of the property or had any recorded interest in the property. Finally,
he alleged Gordon Brothers was not an interested party in the property, in that it had never been
a record owner of the property, never had a recorded interest in the property, and had never
been a tenant of the property. David asked the court to sustain his objection to issuing a tax
deed and dismiss the petition for a tax deed with prejudice.
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¶6 On March 5, 2014, Patricia Kay Sammons filed an objection to issuing the tax deed. She
also maintained petitioner failed to follow the notice requirements set forth in the Code and
raised the same allegations set forth in David Kay Eldridge’s motion to dismiss and objection.
¶7 On March 7, 2014, the trial court conducted a hearing in the matter. Petitioner appeared on
his own behalf and testified he complied with the Code’s requirements for issuance of a tax
deed. He noted his certificate of purchase showed taxes on the property had been assessed to
K’s Merchandise. Petitioner testified he sent notice as required by statute and David Kay
Eldridge was personally served notice by the sheriff on June 20, 2013. He stated the circuit
court clerk also sent a notice addressed to K’s Merchandise and David Kay Eldridge by
certified mail. He submitted a certified mail return receipt, which he testified was signed by
“Mr. Eldridge.” Finally, petitioner testified notice of his petition for a tax deed was also
published three times in the newspaper.
¶8 On cross-examination, petitioner testified he relied on “somebody who was familiar with
doing some work for the title companies” to go to the courthouse and retrieve documents
related to the property at issue. He acknowledged that for the purpose of filing his petition, he
did not personally go to the recorder of deed’s office to look for owners of record of the
property. Petitioner admitted he did not send any notice of the underlying proceedings to
Patricia Kay Sammons, Tempest Grader, Magna Trust Company, Lynn Eldridge, David
Christopher Eldridge, or the City of Decatur.
¶9 Mary Eaton testified she was the Macon County recorder. She stated the records in her
office showed the owner of record of the property at issue was Magna Trust Company, Trust
No. 3832. Eaton testified that deed, recorded on November 10, 1988, was the last deed of
record for the property. She also noted that a mortgage on the property had been recorded by
her office between David Kay Eldridge and Ray Eldridge, Jr., as sole beneficial owners of
Trust No. 3832, and mortgage holders Patricia Kay Sammons, David Christopher Eldridge,
Lynn Eldridge, and Tempest Grader. Eaton testified that, by her office’s records, the mortgage
had never been released. David Kay Eldridge submitted a copy of the mortgage into evidence,
which showed the mortgage was filed and recorded on April 18, 1991, and was due within five
years. Finally, Eaton identified a lien dated July 1, 2013, and claimed by the City of Decatur
for cutting weeds on the property. She testified that lien was also recorded in her office.
¶ 10 Laura Wheeling testified she was a mapping specialist for the Macon County supervisor of
assessments’ office. She testified her office mailed notices of assessments and agreed the
records in her office showed that, for the property at issue, “the mailing address is K’s
Merchandise.” Wheeling further agreed that the mailing address documented in the supervisor
of assessments’ office did not necessarily reflect the owner of record for a particular property.
Rather, she acknowledged that, to find the owner of record, one would have to go to the
recorder of deeds’ office. On cross-examination, Wheeling agreed that 2008 and 2009 tax bills
submitted by petitioner were also directed to K’s Merchandise.
¶ 11 Tempest Grader testified she held a mortgage on the property at issue along with her sister
and cousins. She stated that, until recently, she received regular payments on the mortgage.
Grader’s understanding was that her father and uncle, who were the beneficial owners of the
land trust, sold the property on contract to Tim Viewig, who did not make the necessary
mortgage and tax payments on the property. Grader testified she continued to view the
mortgage as valid and active and asserted it had not been released. Further, she stated that,
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although she had lived at the same address for the previous 14 years, she did not receive any
notices from petitioner regarding the underlying proceedings.
¶ 12 Patricia Sammons testified she was a mortgage holder on the property at issue and filed an
objection to petitioner’s request for a tax deed. She denied ever receiving notice of the
underlying proceedings from petitioner. Sammons testified that for many years she received
monthly payments on the mortgage in the amount of $1,000. She noted that “a few years ago,”
the property was sold to Tim Viewig on contract and he quit making payments. However,
Sammons still considered the mortgage on the property to be valid and active. She further
agreed that the mortgage identified David Kay Eldridge and Ray Eldridge, Jr., as the sole
beneficial owners of Land Trust No. 3832. To her knowledge, they continued to remain the
sole beneficial owners. Sammons also testified that, as of 2007, the address identified in the
mortgage as the address where mortgage payments were to be made was no longer a valid
address.
¶ 13 David Kay Eldridge testified that he and his brother, Ray Eldridge, Jr., were the beneficial
owners of a land trust at the Magna Trust Company, identified as Trust No. 3832. He stated the
trust had been in existence since 1988 and owned the property at issue. In 1991, he and Ray
took out a mortgage from Tempest Grader, Lynn Eldridge, Christopher Eldridge, and Patricia
Sammons. David testified they made payments of $1,000 per month on the mortgage to each of
those individuals until the property was sold on contract to Tim Viewig. He stated Viewig was
also supposed to pay the taxes on the property. At some point, he learned Viewig had stopped
making payments. David testified that when he received notice of the underlying proceedings,
he was in the process of trying to get Viewig to make his payments.
¶ 14 Following the parties’ arguments, the trial court stated it agreed with petitioner’s
contention that the City of Decatur, which held a weed lien on the property, was not “a
necessary party” due to a provision of the Code which prevented issuance of a tax deed unless
the city’s lien was paid off. See 35 ILCS 200/22-35 (West 2012) (“[A]n order for the issuance
of a tax deed *** shall not be entered affecting the title to or interest in any property in which a
city *** has an interest under the police and welfare power by advancements made from public
funds, until the purchaser or assignee makes reimbursement to the city *** of the money so
advanced or the city *** waives its lien on the property for the money so advanced.”).
However, as to the remaining issues, the court asked both parties to submit memoranda of law
within 45 days, after which it would issue a written order.
¶ 15 On April 21, 2014, David Kay Eldridge filed his memorandum. He, again, maintained
petitioner failed to follow the notice requirements set forth in the Code. Specifically, David
argued petitioner failed to conduct a diligent inquiry to determine the parties entitled to notice,
i.e., “owners, occupants, and parties interested in the property” as set forth in section 22-10 of
the Code (35 ILCS 200/22-10 (West 2012)).
¶ 16 On April 22, 2014, petitioner filed his memorandum. He asserted he relied on records from
the supervisor of assessments’ office and the Macon County treasurer’s office when
determining the appropriate parties to notify. Petitioner asserted assessment notices were
mailed to K’s Merchandise and tax bills identified K’s Merchandise as the owner of the
property. Additionally, he argued Magna Trust Company was not entitled to notice because it
had been dissolved on November 14, 1997, and no longer existed. Petitioner attached a
printout from the Illinois Secretary of State’s website, which contained the heading
“CORPORATION FILE DETAIL REPORT” and identified the “status” of Magna Trust
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Company as “dissolved.” Petitioner further asserted Ray Eldridge, Jr., was not entitled to
notice because he was not a record owner of the property and documents identified him merely
as a beneficiary of the trust. Finally, he argued Patricia Sammons was not entitled to notice of
the underlying proceedings because the recorded mortgage showed the mortgage was executed
by the beneficial owners of the trust, who had no authority to mortgage the property. Petitioner
maintained that “[s]ince Magna Trust Company, as Trustee[,] did not execute the mortgage,
the said mortgage is not valid and has no binding effect.”
¶ 17 Finally, Petitioner argued that, in the event the trial court determined he was not entitled to
a tax deed, it should find a sale in error under section 22-50 of the Code (35 ILCS 200/22-50
(West 2012)). Petitioner maintained such a finding was appropriate because he made a
bona fide attempt to comply with statutory requirements.
¶ 18 On April 29, 2014, the trial court made a lengthy docket entry setting forth its decision in
the matter. Ultimately, the court sustained the objections of David Kay Eldridge and Patricia
Kay Sammons to the petition for issuance of a tax deed and declared a sale in error pursuant to
section 22-50 of the Code (35 ILCS 200/22-50 (West 2012)). In reaching its decision, the court
stated as follows:
“Here, the Petitioner relied on mailing addresses used by the county assessor and
county clerk, rather than the records of the recorder’s office to determine the identity of
parties interested in the real estate. This result is [sic] one interested party–David Kay
Eldridge–receiving actual notice of the tax delinquency and petition for issuance of a
tax deed.”
The court found strict adherence to statutory notice requirements was necessary before a tax
deed could be issued and petitioner’s “[f]ailure to send notice to interested parties of
record–Magna Trust Company and the mortgagees–prevent[ed]” it from granting his petition.
¶ 19 With respect to specific issues raised by the parties at the hearing and in the memoranda of
law, the trial court additionally stated as follows:
“Even though Magna Trust Company was dissolved, diligent inquiry could reveal its
successor in interest. On the other side of the coin, careful beneficial owners would
cause a notice of successor land trustee to be recorded to protect their chain of title.
Likewise, Magna Trust Company would have been the proper mortgagor, not the
beneficial owners who had no record title. This potential defect addresses the nature of
the security interest provided by the mortgage, but does not excuse a failure to notify
the mortgagees named on it. Again, careful mortgagees might have recorded a notice of
a new address, especially given the fact of the defaulted agreement for deed. In
summary, both sides failed to take all necessary and prudent steps to protect their
interests. Given this fact, and actual notice of all proceedings received by David Kay
Eldridge, and the close business and personal relationship of him to the other interested
parties, the record before the Court does support a conclusion that the Petitioner made a
bona fide attempt to comply with statutory notice requirements, but failed to strictly
comply with them.”
¶ 20 At the conclusion of its docket entry, the trial court directed petitioner to prepare an order
declaring a sale in error, which petitioner failed to do. Instead, on June 13, 2014, petitioner
filed a motion to modify and for reconsideration and rehearing. He again argued he was
entitled to issuance of a tax deed. Alternatively, petitioner asked the court to modify its
decision and find a sale in error pursuant section 21-310(a)(5) of the Code (35 ILCS
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200/21-310(a)(5) (West 2012)), which provides that a court may declare a sale in error when
“the assessor, chief county assessment officer, board of review, board of appeals, or other
county official has made an error.” That section also provides for refund of the amount paid to
the owner of a certificate of purchase along with “any interest and costs.” 35 ILCS
200/21-310(d) (West 2012). Petitioner argued that although the recorder’s office identified the
owner of the property at issue as Magna Trust Company, the Macon County treasurer’s records
identified K’s Merchandise as the owner of the property, the tax sale certificate issued by the
Macon County clerk identified the property as being “assessed to” K’s Merchandise, and the
assessor sent assessment notices to K’s Merchandise.
¶ 21 On August 18, 2014, the trial court conducted a hearing on petitioner’s motion to modify
and for reconsideration and rehearing. Ultimately, the court denied petitioner’s motion. The
same date, it entered an order denying issuance of a tax deed based on petitioner’s failure to
comply with statutory requirements and declaring a sale in error pursuant to section 22-50 of
the Code (35 ILCS 200/22-50 (West 2012)).
¶ 22 This pro se appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, petitioner first argues the trial court erred in denying his petition for issuance of
a tax deed on the basis that he failed to comply with the Code’s notice requirements. He
maintains that Magna Trust Company; David Kay Eldridge and Ray Eldridge, Jr., as beneficial
owners of the land trust; and the mortgagees were not entitled to notice of the underlying
proceedings.
¶ 25 The Code sets forth various notice requirements for obtaining a tax deed. Pursuant to
section 22-5 of the Code (35 ILCS 200/22-5 (West 2012)), within 4 months and 15 days after a
tax sale, the tax purchaser must “deliver to the county clerk a notice to be given to the party in
whose name the taxes are last assessed.” The notice–entitled “TAKE NOTICE”–advises the
recipient that the specified property has been sold for delinquent taxes, the amount which must
be paid to redeem the property, the date upon which the redemption period will expire, and that
a petition for issuance of a tax deed transferring title and right to possession of the property will
be filed if redemption is not made. 35 ILCS 200/22-5 (West 2012).
¶ 26 Further, to be entitled to a tax deed, section 22-10 of the Code (35 ILCS 200/22-10 (West
2012)) requires a tax purchaser to send a take notice to “owners, occupants, and parties
interested in the property, including any mortgagee of record.” Such notices must be given
“not less than 3 months nor more than 6 months prior to the expiration of the period of
redemption” and must give “notice of the sale and the date of expiration of the period of
redemption.” 35 ILCS 200/22-10 (West 2012).
¶ 27 The Code provides for service of the take notice “(i) personally by the sheriff; (ii) by
registered or certified mail with return receipt requested; and (iii) by three publications in a
local newspaper.” In re Application of the County Treasurer & ex officio County Collector,
2015 IL App (1st) 133693, ¶ 33, 33 N.E.3d 248 (citing 35 ILCS 200/22-15, 22-20, 22-25
(West 2012)). Finally, “within 6 months but not less than 3 months prior to the expiration of
the redemption period for property sold pursuant to judgment and order of sale *** the
purchaser *** may file a petition in the circuit court *** asking that the court direct the county
clerk to issue a tax deed if the property is not redeemed from the sale.” 35 ILCS 200/22-30
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(West 2012). “Notice of filing the petition and the date on which the petitioner intends to apply
for an order on the petition that a deed be issued if the property is not redeemed shall be given
to occupants, owners[,] and persons interested in the property ***.” 35 ILCS 200/22-30 (West
2012).
¶ 28 “It is well established a tax purchaser must strictly comply with the statutory notice
requirements and such notice provisions are to be ‘rigidly enforced.’ ” In re Application of the
Douglas County Treasurer & ex officio County Collector, 2014 IL App (4th) 130261, ¶ 34, 5
N.E.3d 214 (quoting In re Application of the County Treasurer & ex officio County Collector,
403 Ill. App. 3d 985, 990, 935 N.E.2d 570, 574 (2010)) (hereinafter Ballinger). “The petitioner
for a tax deed carries the burden of demonstrating that it complied with the Code and provided
the requisite notice.” In re Application of the County Treasurer & ex officio County Collector,
2011 IL App (1st) 101966, ¶ 44, 955 N.E.2d 669 (hereinafter Glohry).
¶ 29 “The *** Code requires the tax purchaser to conduct a ‘diligent inquiry’ to locate property
owners and interested parties.” Ballinger, 2014 IL App (4th) 130261, ¶ 42, 5 N.E.3d 214. “[A]
‘diligent inquiry’ is an inquiry ‘as full as the circumstances of the situation will permit.’ ”
Ballinger, 2014 IL App (4th) 130261, ¶ 34, 5 N.E.3d 214 (quoting Liepelt v. Baird, 17 Ill. 2d
428, 432-33, 161 N.E.2d 854, 858 (1959)). Further, it “is that inquiry which a diligent person
who is intent on discovering a fact would reasonably make.” Glohry, 2011 IL App (1st)
101966, ¶ 44, 955 N.E.2d 669. “Illinois courts have held ‘a tax purchaser has failed to act with
minimal diligence if he has not made reasonable efforts to notify all persons whose interest
may reasonably be inferred from the public records regarding the property’s ownership.’ ”
Ballinger, 2014 IL App (4th) 130261, ¶ 42, 5 N.E.3d 214 (quoting Glohry, 2011 IL App (1st)
101966, ¶ 44, 955 N.E.2d 669).
¶ 30 “Whether the purchaser’s actions are sufficient to comprise due diligence in determining
the identities of, and providing notice to, those who hold an interest in the property is a
question of fact.” Banco Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 213, 780
N.E.2d 1113, 1127 (2002). The trial court’s determination as to diligence “will not be reversed
on appeal unless it is against the manifest weight of the evidence.” Gacki v. La Salle National
Bank, 282 Ill. App. 3d 961, 964, 669 N.E.2d 936, 938 (1996); see also In re Application of the
Cook County Collector for Judgment & Order of Sale Against Lands & Lots Returned
Delinquent for Nonpayment of General Taxes for the Year 1987 & Prior Years, 271 Ill. App.
3d 12, 15, 648 N.E.2d 153, 156 (1995) (“Because diligence is a question of fact, the trial
court’s determination will only be reversed if it is against the manifest weight of the
evidence.”).
¶ 31 In this case, the record reflects petitioner relied on records from the assessor’s office and
the treasurer’s office when determining which parties were entitled to notice under the Code.
He neither discovered nor investigated the parties who held interests in the property as shown
by the records of the Macon County recorder’s office. Those records identified Magna Trust
Company, Trust No. 3832 as the owner of the property and reflected a recorded mortgage on
the property held by several individuals. Additionally, the mortgage document filed with the
recorder’s office identified David Kay Eldridge and Ray Eldridge, Jr., “as the sole beneficial
owners” of the land trust. Because Magna Trust Company, the beneficial owners of the land
trust, and the mortgagees all had interests reflected in the public records regarding the property
at issue, petitioner was required to make reasonable efforts to notify those parties. The record
here reflects no such effort and, thus, a lack of even minimal diligence.
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¶ 32 Petitioner contends that, although Magna Trust Company held the last recorded deed for
the property, the company was dissolved in 1997, and he could not send notice to an entity that
no longer existed. Petitioner asserts “Magna Trust Company was not served because it was
dissolved.” However, as the trial court found, “[e]ven though Magna Trust Company was
dissolved, diligent inquiry could [have] reveal[ed] its successor in interest.” The record
indicates petitioner was not aware of Magna Trust Company’s recorded interest in the property
until after the objections to his petition for issuance of a tax deed were filed. It further shows he
made no inquiry or investigation into that interest. In particular, he made no attempt to find a
successor in interest. Given these circumstances, the court’s determination that petitioner
failed to make a diligent inquiry to locate property owners and interested parties was not
against the manifest weight of the evidence.
¶ 33 Petitioner further argues neither David Kay Eldridge nor Ray Eldridge, Jr., was entitled to
notice under the Code because they were “merely beneficiaries of the trust” and did not hold
record title. However, “[i]nterested parties–whether legal owners or land trust
beneficiaries–whose names and addresses can readily be ascertained from public records have
a constitutional right to notice of tax deed proceedings, and the failure of the tax sale purchaser
to consult the public records to make this determination constitutes a lack of diligence.” In re
Application of the County Collector, 397 Ill. App. 3d 535, 545, 921 N.E.2d 462, 472-73
(2009); see also In re Application of the County Treasurer & ex officio County Collector of
Cook County for Order of Judgment & Sale Against Real Estate Returned Delinquent for the
Year 1985, 216 Ill. App. 3d 162, 171, 576 N.E.2d 255, 262 (1991) (holding land trust
beneficiaries were entitled to notice where their names were ascertainable from the public
record and their addresses “were obtainable either from the public documents themselves or
from telephone directories”).
¶ 34 Both David Kay Eldridge and Ray Eldridge, Jr., were identified as beneficial owners of the
land trust in the mortgage document recorded in the recorder’s office. The record shows David
Kay Eldridge was served with notice of the underlying proceedings but reflects no effort by
petitioner to notify Ray Eldridge, Jr. Petitioner argues a certified return receipt (submitted at
the March 2014 hearing as petitioner’s exhibit F) contains the signature of Ray Eldridge, Jr.,
indicating he was served with notice. However, that return receipt shows it was addressed to
K’s Merchandise and to the attention of David Kay Eldridge. Upon review by this court, the
return receipt appears to contain the signature of “Kay Eldridge” and not Ray Eldridge, Jr.
Additionally, during the March 2014 hearing in the matter, David Kay Eldridge’s testimony
indicated it was his signature on the return receipt that petitioner references on appeal. The
following colloquy occurred between David Kay Eldridge and his attorney:
“Q. And at the time you signed for a notice from [petitioner], the signature card on
the–which is his Exhibit F, page 1, you were in the process of trying to get Mr. Viewig
to–pay up his payments?
A. Correct.”
¶ 35 The record shows petitioner could have inferred from public records that Ray Eldridge, Jr.,
had an interest in the property at issue as he was identified by name as a beneficial owner of the
land trust in the mortgage document filed with the recorder’s office. Again, petitioner’s failure
to make any effort to notify Ray Eldridge, Jr., of the underlying proceedings indicates the lack
of a diligent inquiry by petitioner and, thus, a failure to comply with the Code’s notice
provisions.
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¶ 36 Finally, petitioner argues the mortgagees, including Patricia Sammons, were not entitled to
notice. Initially, he argues the mortgagees did not hold a valid mortgage because the mortgage
was not executed by the owner of the property. He points out that the mortgage document
identified David Kay Eldridge and Ray Eldridge, Jr., as the mortgagors but contends that, as
beneficial owners of the trust, neither individual had an ownership interest in the property or,
consequently, the authority to mortgage the property.
¶ 37 A land trust is defined as any trust arrangement under which the trustee holds the legal and
equitable title to real estate while “the interest of the beneficiary of the trust is personal
property.” 735 ILCS 5/15-1205 (West 2012). Additionally, “the beneficiary or any person
designated in writing by the beneficiary has (i) the exclusive power to direct or control the
trustee in dealing with the title to the trust property, (ii) the exclusive control of the
management, operation, renting and selling of the trust property and (iii) the exclusive right to
the earnings, avails and proceeds of the trust property.” 735 ILCS 5/15-1205 (West 2012). In
the context of a land trust, “[t]he trustee’s interest is in the title to the real estate and if the
beneficiary wishes to deal with that title, he must do so through the trustee.” Schneider v.
Pioneer Trust & Savings Bank, 26 Ill. App. 2d 463, 466, 168 N.E.2d 808, 809 (1960).
¶ 38 Here, we find merit in petitioner’s contention that the beneficial owners of the trust lacked
authority to mortgage the property. In this case, only the trustee of the land trust held legal and
equitable title to the property and, therefore, the trustee was the one with authority to execute
the mortgage.
¶ 39 Nevertheless, we do not find such reasoning dispositive of the issues presented by this
case. The Code expressly provides that, to be entitled to a tax deed, a tax purchaser must send
notice to “owners, occupants, and parties interested in the property, including any mortgagee
of record.” (Emphasis added.) 35 ILCS 200/22-10 (West 2012). The mortgage at issue on
appeal was recorded and petitioner does not cite any authority for the proposition that a tax
purchaser may refuse to send notice to mortgagees of record whom the tax purchaser
unilaterally determines hold no valid mortgage. With respect to this issue the trial court stated
as follows:
“Magna Trust Company would have been the proper mortgagor, not the beneficial
owners who had no record title. This potential defect addresses the nature of the
security interest provided by the mortgage, but does not excuse a failure to notify the
mortgagees named on it.”
We agree with the trial court’s observation. Even if the mortgage was later judicially
determined to be invalid, at the time petitioner served the take notice, it was incumbent on him
to serve any nominal mortgagee of record. Here such nominal mortgagees of record included
Patricia Kay Sammons, David Christopher Eldridge, Lynn Eldridge, and Tempest Grader.
Moreover, in this case, petitioner did not discover the recorded mortgage or conduct any
investigation into the interests of the mortgagees until after the objections to his petition were
filed. Once again, such circumstances evidence a lack of diligence by petitioner.
¶ 40 Petitioner further argues that, even if the mortgagees held a valid mortgage, “the statute of
limitations to commence an action expired.” He cites section 13-115 of the Code of Civil
Procedure (735 ILCS 5/13-115 (West 2012)), which provides that “[n]o person shall
commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of
a mortgage, unless within 10 years after the right of action or right to make such sale accrues.”
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We find section 13-115 involves circumstances wholly unrelated to the proceedings at issue as
it concerns proceedings to foreclose a mortgage.
¶ 41 Finally, to the extent petitioner argues he complied with the Code’s requirements because
the notices he published in the newspaper were sufficient to give all necessary parties
constructive notice of the underlying proceedings, we disagree. “Notice by publication in tax
deed proceedings is authorized only to those owners and interested parties who upon diligent
inquiry cannot be found and personally served.” In re Application of Hamilton County
Treasurer, 96 Ill. App. 3d 158, 161, 420 N.E.2d 1179, 1182 (1981). Further, this court has
previously rejected the contention that publication notice cures a tax purchaser’s failure to
conduct a diligent inquiry. Ballinger, 2014 IL App (4th) 130261, ¶ 47, 5 N.E.3d 214. Thus,
petitioner’s failure to perform a diligent inquiry in the instant case is not excused by the notices
he published in the newspaper.
¶ 42 The circumstances of this case support the trial court’s conclusion that petitioner failed to
conduct a diligent inquiry into the parties requiring notice under the Code. The court’s finding
as to diligence was not against the manifest weight of the evidence. Further, because petitioner
failed to conduct a diligent inquiry and comply with the Code’s notice requirements, he was
not entitled to issuance of a tax deed.
¶ 43 On appeal, petitioner alternatively argues he was entitled to a sale in error pursuant to
section 21-310(a)(5) of the Code (35 ILCS 200/21-310(a)(5) (West 2012)), rather than section
22-50 of the Code (35 ILCS 200/22-50 (West 2012)) as determined by the trial court.
¶ 44 Section 22-50 of the Code (35 ILCS 200/22-50 (West 2012)) provides as follows:
“If the court refuses to enter an order directing the county clerk to execute and deliver
the tax deed, because of the failure of the purchaser to fulfill any of the above
provisions, and if the purchaser, or his or her assignee has made a bona fide attempt to
comply with the statutory requirements for the issuance of the tax deed, then upon
application of the owner of the certificate of purchase the court shall declare the sale to
be a sale in error.”
Alternatively, section 21-310(a)(5) of the Code (35 ILCS 200/21-310(a)(5) (West 2012))
permits a court to declare a sale in error when “the assessor, chief county assessment officer,
board of review, board of appeals, or other county official has made an error (other than an
error of judgment as to the value of any property).” “If a sale is declared to be a sale in error
[pursuant to section 21-310], *** the county collector shall, on demand of the owner of the
certificate of purchase, refund the amount paid, pay any interest and costs ***.” 35 ILCS
200/21-310(d) (West 2012).
¶ 45 Petitioner argues that “[t]he assessor and other county officials” made errors because,
although records from the Macon County recorder’s office identified Magna Trust Company
as the owner of the property at issue, “other county departments erroneously show that [K’s
Merchandise] is the owner.” He notes that the certificate of purchase issued to him after the tax
sale stated the property was “assessed to” K’s Merchandise, the assessor’s office sent
assessment notices to K’s Merchandise, and the treasurer’s office identified the owner of the
property as K’s Merchandise.
¶ 46 We find petitioner has failed to demonstrate any error by county officials. Nothing in the
record reflects any error in designating K’s Merchandise as the entity to whom taxes were
assessed or to whom tax bills were mailed. As the trial court noted when addressing
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petitioner’s posthearing motion, “tax bills may go to only one of multiple owners of property”
or “be mailed to persons or entities who have no ownership interest in a piece of property.”
Further, contrary to petitioner’s assertions on appeal, Laura Wheeling, a mapping specialist for
the Macon County supervisor of assessments’ office, agreed that the mailing address
documented in the supervisor of assessments’ office did not necessarily reflect the owner of
record for a particular property. Given these circumstances, the court committed no error in
finding petitioner was not entitled to a sale in error pursuant to section 21-310(a)(5) of the
Code.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the trial court’s judgment.
¶ 49 Affirmed.
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