In re Application of the County Treasurer and Ex-Officio County Collector of Cook county

SECOND DIVISION
NOVEMBER 25, 2008
1-07-1977
In re APPLICATION OF THE COUNTY TREASURER ) Appeal from the
AND EX-OFFICIO COUNTY COLLECTOR OF COOK ) Circuit Court of
COUNTY, ILLINOIS FOR ORDER OF JUDGMENT ) Cook County.
AND SALE OF LANDS AND LOTS RETURNED )
DELINQUENT FOR NON-PAYMENT OF ALL OR )
PART OF GENERAL TAXES AND/OR SPECIAL )
ASSESSMENTS FOR TAX YEAR 1997 AND )
PRIOR YEARS )
)
(Danny Hammond, ) No. 01 CD 4489
)
Petitioner-Appellant, )
)
v. )
)
S. I. BOO, L.L.C., and KYONNI OLAWUMI, ) Honorable
) Nathaniel Howse, Jr.,
Respondents-Appellees). ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the opinion of the court:
Following the sale of petitioner Danny Hammond’s real property due to delinquent unpaid
taxes, the circuit court entered judgment for tax deed in favor of respondent S. I. Boo, L.L.C. (S.
I. Boo). The petitioner then filed a petition to vacate the judgment for tax deed, which the circuit
court dismissed. On appeal from the circuit court’s April 26, 2007 dismissal of his petition under
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West Supp. 2007)) to vacate
judgment for tax deed, the petitioner contends that: (1) the tax deed is void; and (2) the circuit court
exceeded its authority and lacked the power to enter the tax deed order. For the following reasons,
we affirm.
1-07-1977
BACKGROUND
Beginning in 1997, the petitioner owned a home in Chicago Heights.1 The failure to pay
county taxes in 1997 resulted in the lot being sold to S. I. Securities on March 16, 1999. A “Take
Notice” (notice) was then personally served on the petitioner on November 2, 2001, which stated that
the petitioner could redeem the property before February 27, 2002, and described the process for
doing so. The notice also gave information about a hearing to be held at the “Richard J. Daley
Center, Chicago, Illinois” on March 13, 2002, but did not provide the address of the Richard J. Daley
Center. The petitioner subsequently failed to redeem the property within the time allowed as outlined
in the notice.
As a result, the circuit court entered judgment for tax deed in favor of respondent S. I. Boo,
L.L.C. (S. I. Boo) on May 10, 2002, and the tax deed for the property was recorded. The property
was later sold to respondent Kyonni Olawumi, who obtained a 30-year mortgage for the purchase
of the property and recorded the warranty deed in Cook County. At the time of the petitioner’s
appeal, Olawumi owed approximately $111,000 on the mortgage.
On January 5, 2007, almost five years after the court’s judgment for S. I. Boo, the petitioner
filed a petition, under section 2-1401 of the Illinois Code of Civil Procedure, to vacate the judgment
for the tax deed granted to S. I. Boo, arguing that the failure of the notice served on him on
November 2, 2001, to include an address for the Richard J. Daley Center rendered the judgment order
1
The lot was legally described as “Lot 8 in block 150 in Chicago Heights, a Subdivision of
parts of Sections 28 and 29, Township 35 North, Range14, East of the Third Principal Meridian,
in Cook County, Illinois.”
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granting a tax deed to S. I. Boo, void. 735 ILCS 5/2-1401 (West Supp. 2007). Each respondent
filed a motion to dismiss, which the circuit court granted on April 26, 2007. On June 22, 2007, the
court denied the petitioner’s motion to reconsider its ruling. A notice of appeal to this court was
filed by the petitioner on July 19, 2007.
ANALYSIS
Jurisdiction is properly before this court. We review de novo, the circuit court’s dismissal of
the section 2-1401 petition. Stahelin v. Forest Preserve District of Du Page County, 376 Ill. App.
3d 765, 771, 877 N.E.2d 1121, 1128 (2007). All well-pleaded facts must be taken as true and any
inferences drawn should be drawn in favor of the nonmovant, regardless of whether the motion to
dismiss was brought under section 2-615 or 2-619 of the Code of Civil Procedure (735 ILCS 5/2-
615, 2-619 (West 2006)). Stahelin, 376 Ill. App. 3d at 771, 877 N.E.2d at 1128; Geick v. Kay, 236
Ill. App. 3d 868, 873-74, 603 N.E.2d 121, 125 (1992).
We first address the issue of whether the circuit court had jurisdiction to render judgment for
a tax deed in favor of S. I. Boo on March 10, 2002. The petitioner argues that the circuit court
exceeded its authority and lacked the power to enter the tax deed order because the November 2001
notice was defective. Specifically, he argues that the notice failed to strictly comply with the notice
requirements of section 22-10 of the Property Tax Code (35 ILCS 200/22-10 (West Supp. 2007))
because it did not specify the exact address for the place of the hearing, thus rendering the tax deed
void. Void judgments, he argues, may be attacked at any time. 735 ILCS 5/2-1401(f) (West Supp.
2007); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104, 776 N.E.2d 195, 201-22
(2002). We disagree with the petitioner’s contention.
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Under section 22-10 (notice provision), notice of the sale and the expiration date of the
redemption period are required to be given to the owners, occupants or other interested parties before
a tax deed may be issued. The notice must include information such as the period of redemption,
legal description of the property at issue, and the address at which the hearing is to be held. 35 ILCS
200/22-10 (West Supp. 2007). The statute mandates that the court shall insist on strict compliance
with the notice provision. 35 ILCS 200/22-40 (West Supp. 2007). However, no authority exists to
deprive the circuit court of jurisdiction simply because the notice was defective.
Tax deed proceedings are in rem in nature, rather than in personam, and a court acquires
jurisdiction after the county collector makes his application for judgment and order of sale. In re
Application of County Treasurer, 194 Ill. App. 3d 721, 724, 551 N.E.2d 343, 346 (1990); Wilder v.
Finnegan, 267 Ill. App. 3d 422, 425, 642 N.E.2d 496, 499 (1994). The jurisdiction over the land
itself grants power to the court to act, and thus, any doubt about the fulfillment of the notice
requirements goes to whether the court should order the tax deed issued, not whether the court has
jurisdiction in the matter. Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499. Failure to satisfy the
criteria of the notice provision will neither divest the court of jurisdiction nor prevent the court from
otherwise ruling in issuing an order for tax deed. Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499.
The court, however, lacks jurisdiction over a property if the taxes had been paid or the property is
tax exempt. In re Application of Cook County Collector, 228 Ill. App. 3d 719, 731, 593 N.E.2d 538,
547 (1991).
Here, the circuit court acquired jurisdiction over the property at issue when the Cook County
treasurer made an application for judgment and order of sale. Once the circuit court had jurisdiction,
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it retained that jurisdiction regardless of whether the notice may have been defective for failing to
include the specific street address. There is nothing in the record that shows that the delinquent taxes
had been paid to the county or that the property was tax exempt so as to deprive the lower court of
its jurisdiction. Thus, once the circuit court acquired jurisdiction over the in rem proceeding, it had
the power to decide whether to issue the tax deed, and any defects in the notice did not render it void
but, at most, voidable. Elliott v. Johnson, 156 Ill. App. 3d 70, 74, 508 N.E.2d 1229, 1232 (1987).
We next determine whether the circuit court erred in ordering a judgment for tax deed in favor
of S. I. Boo. The circuit court granted the respondents’ motions to dismiss and held:
“(a) The failure to include the street address in the Take
Notice does not render the judgment void.
(b) The failure to include the street address on the Take Notice
is not a jurisdictional question.
(c) No due process rights of Hammond were violated.
(d) One can only attack the strict compliance of the notice
provision of the Property Tax Code within 30 days of entry of the
order for tax deed.
(e) Failure to strictly comply with the Take Notice provisions
of the Property Tax Code cannot be attacked in a §2-1401 petition.”
We may affirm the circuit court’s decision on any basis in the record. IMC Global v.
Continental Insurance Co., 378 Ill. App. 3d 797, 805, 883 N.E.2d 68, 76-77 (2007). Because the
notice was not void, the petitioner’s only recourse under section 2-1401 was to bring a direct attack
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within 30 days of the circuit court’s final order, petition for relief within 2 years of the entry of the
judgment, or plead fraud. 735 ILCS 5/2-1401(a), (c) (West Supp. 2007); see also 35 ILCS 200/22-
45 (3) (West Supp. 2007).
One can only attack the strict compliance of the notice provision within 30 days of entry of
the order for tax deed. Smith v. D.R.G., Inc., 63 Ill. 2d 31, 36, 344 N.E.2d 468, 470 (1976) (holding
that once a court finds that the required notices have been given, the tax deed order may only be
challenged by direct appeal or by a showing of fraud). Here, the petitioner forfeited his right to a
direct appeal by not acting within 30 days of the circuit court’s judgment and cannot now challenge
the deficiencies of the notice almost five years after the entry of the judgment order. We note that
the petition also does not seek relief on the grounds of fraud, which tolls the filing period under
section 2-1401.
If direct attack on a final judgment or order is not made within 30 days of its entry by the
court, the party desiring to challenge the judgment must file a petition to do so no later than 2 years
after the entry of the order or judgment. 735 ILCS 5/2-1401(c) (West Supp. 2007). The
computation of this two-year period excludes any time that the person seeking relief suffered from
a legal disability or duress. Here, the petition was filed almost five years after the entry of judgment
for a tax deed in the circuit court. The petitioner does not claim any legal disability or duress that
tolled the two-year period so as to make his petition timely.
Due diligence must also be shown in filing a section 2-1401 petition for relief. Due diligence
is shown when the “petitioner show[s] that his/her inaction was the result of an excusable mistake and
that petitioner acted reasonabl[y], not negligently, [in failing] to pursue the cause of action.” Salazar
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v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863, 871, 576 N.E.2d 552, 557-58 (1991). Here,
the petitioner failed to demonstrate due diligence in filing the section 2-1401 petition. He waited
almost five years before objecting to the judgment for tax deed. Nothing in the record explains why
the petitioner waited so long before seeking relief under section 2-1401. It is unclear from the record
when the petitioner first became aware or should have become aware of the defective notice of which
he now complains. He has not included any affidavits showing that his inaction was the result of an
excusable mistake or that he acted reasonably in waiting almost five years to file this petition. Absent
such information in the record, we cannot assume that the petitioner’s inaction was excusable.
Therefore, the petitioner has failed to show due diligence in filing his petition as required by section
2-1401. Accordingly, we agree with the respondents that the petitioner’s petition to vacate judgment
was untimely and thus, properly dismissed.
We also note that section 22-45 of the Property Tax Code must be read in conjunction with
section 2-1401 in governing the petition process for a tax deed. 35 ILCS 200/22-45 (West Supp.
2007). Section 22-45 states that tax deeds are appealable under section 2-1401 “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.” 35 ILCS 200/22-45 (West Supp. 2007). 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
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had been procured by fraud or deception by the tax purchaser or his
or her assignee; or
(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.” 35 ILCS 200/22-
45 (West Supp. 2007).
The petitioner argues that the circuit court failed to follow the specific language of section
22-45 because nothing in this section limits the applicability of section 2-1401(f) regarding relief from
void judgments. Because we have decided that the judgment was not void, we need not address this
point any further. We do note, however, that the petitioner failed to identify which of the four
grounds of section 2-1401 supports his argument. Therefore, his petition, on its face, was insufficient
as a matter of law. Thus, the circuit court properly dismissed it.
We hold that the circuit court did not err in granting the respondents’ motions to dismiss the
petition to vacate judgment for tax deed entered in 2002 and the judgment was not void.
Affirmed.
KARNEZIS, P.J., and SOUTH, J., concur.
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