In re Application of the County Treasurer

2014 IL App (2d) 130995No. 2-13-0995
Opinion filed June 30, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re APPLICATION OF THE COUNTY ) Appeal from the Circuit Court
TREASURER AND ex officio COUNTY ) of Boone County.
COLLECTOR, For Judgment and Order of )
Sale Against Real Estate Returned Delinquent )
for Nonpayment of General Taxes and/or ) No. 12-TX-7
Special Assessments for the Year 2008 and/or )
Prior Years )
)
(John Zajicek, d/b/a Z Financial, Petitioner- ) Honorable
Appellee, v. Lloyd Giordano, Respondent- ) Brendan A. Maher,
Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Birkett concurred in the judgment and opinion.
OPINION
¶1 On April 5, 2012, the petitioner, John Zajicek, d/b/a Z Financial, filed a petition for a tax
deed as to property owned by the respondent, Lloyd Giordano. On October 2, 2012, the
respondent redeemed his property under protest, arguing that the funds he paid should be
returned to him because the petitioner had not complied with the requisite provisions of the
Property Tax Code (35 ILCS 200/1-1 et seq. (West 2012)). After the trial court struck the
respondent’s protest, the respondent filed a timely notice of appeal. For the reasons that follow,
we reverse and remand for additional proceedings.
¶2 BACKGROUND
2014 IL App (2d) 130995¶3 The respondent owns property in Boone County. He failed to pay his 2008 real estate
taxes on that property in a timely fashion. On November 6, 2009, Z Financial, LLC, purchased
the unpaid taxes and received a tax certificate.
¶4 On February 3, 2010, Z Financial (an entity distinct from Z Financial, LLC) provided
notice to the respondent that the period for redemption was extended to June 4, 2012.
¶5 On April 5, 2012, Z Financial provided notice to the respondent that the period for
redemption was extended to October 4, 2012. On that same day, Zajicek, as managing member
of Z Financial, LLC, filed a document indicating that it was assigning all of its rights in the tax
certificate to the petitioner. Also on that day, the petitioner filed a petition for a tax deed.
¶6 On October 2, 2012, the respondent redeemed his property by paying the unpaid taxes,
plus fees and interest. The respondent also filed a document indicating that he was redeeming
his property under protest pursuant to section 21-380 of the Property Tax Code (35 ILCS 200/21-
380 (West 2012)). The respondent argued that, because the petitioner had not complied with all
of the requisite provisions of the Property Tax Code in attempting to obtain a tax deed, the
respondent was entitled to all of the funds he had paid to redeem his property.
¶7 On February 25, 2013, the trial court struck the respondent’s protest. The trial court
further dismissed the petition for a tax deed in light of the redemption and ordered the Boone
County clerk to remit all posted funds to the petitioner upon surrender of the tax certificate.
Following the denial of his motion to reconsider, the respondent filed a timely notice of appeal.
¶8 ANALYSIS
¶9 The respondent raises four contentions on appeal. However, as the respondent’s second
contention is dispositive, we address only that issue. In that contention, the respondent argues
that the trial court should have sustained his protest because the petitioner failed to comply with
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2014 IL App (2d) 130995the requisite notice provisions of the Property Tax Code and thus could not have obtained a tax
deed. Specifically, the respondent argues that any tax deed had to be recorded by November 6,
2012, unless the respondent was given notice that the redemption period had been extended.
Although Z Financial provided such notice on February 3, 2010, that notice was not valid,
because Z Financial did not have any rights in the tax certificate when it gave such notice.
Because the petitioner failed to comply with the requisite notice provisions of the Property Tax
Code, the respondent insists, the trial court should have ordered that all of the funds that he
deposited with the Boone County clerk be returned to him.
¶ 10 The respondent’s argument requires us to construe the following provisions of the
Property Tax Code. Section 21-380 of the Property Tax Code pertains to the redemption of
delinquent real estate taxes under protest. That section provides in pertinent part:
“Redemption under Protest. Any person redeeming under this Section at a time
subsequent to the filing of a petition under Section 22-30 or 21-445 [(35 ILCS 200/22-30,
21-445 (West 2012))] who desires to preserve his or her right to defend against the
petition for a tax deed, shall accompany the deposit for redemption with a writing [setting
forth the objections].
***
*** The specified grounds for the objections shall be limited to those defenses as
would provide sufficient basis to deny entry of an order for issuance of a tax deed. ***
***
The county clerk shall enter the redemption as provided in section 21-230 [(35
ILCS 200/21-230 (West 2012))] and shall note the redemption under protest. The
redemption money so deposited shall not be distributed to the holder of the certificate of
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2014 IL App (2d) 130995purchase but shall be retained by the county clerk pending disposition of the petition filed
under Section 22-30.
***
When the party redeeming appears and presents a defense, the court shall hear and
determine the matter. If the defense is not sustained, the court shall order the protest
stricken and direct the county clerk to distribute the redemption money upon surrender of
the certificate of purchase and shall order the party redeeming to pay the petitioner
reasonable expenses, actually incurred, including the cost of withheld redemption money,
together with a reasonable attorneys fee. Upon a finding sustaining the protest in whole
or in part, the court may declare the sale to be a sale in error under Section 21-310 or
Section 22-45 [(35 ILCS 200/21-310, 22-45 (West 2012))] and shall direct the county
clerk to return all or part of the redemption money or deposit to the party redeeming.” 35
ILCS 200/21-380 (West 2012).
Section 22-40 requires strict compliance with the notice provisions of the Property Tax Code
before a deed is issued. That section states:
“If the redemption period expires and the property has not been redeemed and all taxes
and special assessments which become due and payable subsequent to the sale have been
paid and all forfeitures and sales which occur subsequent to the sale have been redeemed
and the notices required by law have been given and all advancements of public funds
under the police power made by a city, village or town under Section 22-35 have been
paid and the petitioner has complied with all provisions of law entitling him or her to a
deed, the court shall so find and shall enter an order directing the county clerk on the
production of the certificate of purchase and a certified copy of the order, to issue to the
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2014 IL App (2d) 130995purchaser or his or her assignee a tax deed. The court shall insist on strict compliance
with Section 22-10 through 22-25.” 35 ILCS 200/22-40 (West 2012).
Section 22-10 provides:
“Notice of expiration of period of redemption. A purchaser or assignee shall not be
entitled to a tax deed to the property sold 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 expiration of the period of redemption to the owners, occupants, and
parties interested in the property, including any mortgagee of record ***.” 35 ILCS
200/22-10 (West 2012).
Section 22-85 provides a basis to deny a tax deed. That section provides in pertinent part:
“Failure to timely take out and record deed; deed is void. Unless the holder of the
certificate purchased at any tax sale under this Code takes out the deed in the time
provided by law, and records the same within one year from and after the time for
redemption expires, the certificate or deed, and the sale on which it is based, shall, after
the expiration of the one year period, be absolutely void with no right to reimbursement.”
35 ILCS 200/22-85 (West 2012).
¶ 11 In interpreting a statute, the primary objective is to ascertain and give effect to the intent
of the legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010). The
legislature’s intent in enacting a statute is best determined by the plain and ordinary meaning of
the statutory language. Id. “In determining the plain meaning of the statute, we consider the
statute in its entirety, the subject it addresses, and the apparent intent of the legislature in
enacting it.” Id.-5-
2014 IL App (2d) 130995¶ 12 When the language of the statute is clear and unambiguous, the court must give it effect
without resorting to other aids of construction. Id. The statute is deemed ambiguous if it is
capable of being understood by reasonably well-informed persons in two or more different ways.
Id. Courts should construe statutes so as to yield logical and meaningful results and to avoid
constructions that render specific language superfluous or meaningless. In re Application of the
County Treasurer, 2012 IL App (1st) 101976, ¶ 37 (CCPI). Courts do not depart from plain
statutory language by reading into it exceptions, limitations, or conditions that conflict with the
expressed intent. Solon, 236 Ill. 2d at 441. Courts may also consider the consequences that
would result from construing the statute one way or the other. Id.¶ 13 A statute should be interpreted as a whole, meaning that different sections of the same
statute should be considered in reference to one another so that they are given harmonious effect.
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). One section of
a statute should not be interpreted in a way that renders another section of the same statute
irrelevant. CCPI, 2012 IL App (1st) 101976, ¶ 38.
¶ 14 Section 21-380 of the Property Tax Code provides that a redemption under protest may
be sustained only on those grounds that would provide a basis to deny the issuance of a tax deed.
35 ILCS 200/21-380 (West 2012). Section 21-350 of the Property Tax Code provides that the
period of redemption is two years from the date of sale, unless that period is extended. 35 ILCS
200/21-350 (West 2012). Section 21-385 of the Property Tax Code sets forth that the purchaser
or his assignee may extend the redemption period for one additional year if he provides notice to
the property owner that the redemption period has been extended. 35 ILCS 200/21-385 (West
2012). Section 22-85 of the Property Tax Code provides that, if a tax deed is not recorded within
one year of when the redemption period ends, the tax certificate holder loses his right to obtain a
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2014 IL App (2d) 130995tax deed. 35 ILCS 200/22-85 (West 2012). Section 22-40 of the Property Tax Code provides
that a court must insist on strict compliance with section 22-10 of the Property Tax Code before
it issues a tax deed. 35 ILCS 200/22-40 (West 2012). Section 22-10 of the Property Tax Code
provides that the purchaser or his assignee shall not be entitled to a tax deed unless he gives the
owner three to six months’ notice of the expiration of the redemption period. 35 ILCS 200/22-10
(West 2012).
¶ 15 Here, Z Financial, LLC, purchased the unpaid taxes and received a tax certificate on
November 6, 2009. The redemption period therefore expired on November 6, 2011, unless the
period was extended. 35 ILCS 200/21-350 (West 2012). Z Financial, LLC, did not extend the
redemption period. The petitioner therefore would be entitled to a tax deed only if he strictly
complied with section 22-10 of the Property Tax Code and gave the respondent three to six
months’ notice that the redemption period was ending on November 6, 2011. 35 ILCS 200/22-
40 (West 2012). Because the petitioner did not strictly comply with section 22-10 of the
Property Tax Code, the petitioner was not entitled to a tax deed. That was a proper basis to
sustain the respondent’s protest. 35 ILCS 200/21-380 (West 2012). The trial court therefore
erred in not sustaining the protest.
¶ 16 In so ruling, we reject the petitioner’s argument that the notice that Z Financial provided
to the respondent was sufficient to extend the redemption period. We note that a similar
argument was rejected by the Appellate Court, First District, in CCPI, 2012 IL App (1st)
101976. In that case, in June 2006, GJ Venture, LLC (GJ), bought property at a tax sale. The
original redemption expiration date was June 12, 2008. Id. ¶ 8. On July 11, 2006, GJ assigned
the certificate of purchase and all of its right, title, and interest in the property to Sabre Group,
LLC (Sabre). Id. ¶ 9. On April 10, 2008, GJ filed a notice to extend the period of redemption to
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2014 IL App (2d) 130995July 25, 2008. Id. ¶ 11. On February 4, 2009, Sabre assigned the certificate of purchase to
CCPI. Id. ¶ 17. On February 11, 2009, the trial court entered orders substituting CCPI as the tax
deed petitioner and directing the clerk to issue a tax deed to CCPI. CCPI recorded its tax deed
on November 4, 2009. Id.
¶ 17 In December 2009, the property owner filed a motion to declare the tax deed void
pursuant to section 22-85 of the Property Tax Code. Id. ¶ 18. The property owner alleged that
the tax deed was void because CCPI failed to record it within one year from June 12, 2008, the
original redemption expiration date. The property owner argued that the deed had to be recorded
by June 12, 2009, because GJ’s attempt to extend the redemption period was invalid where it had
previously assigned away any rights to the property. Id.
¶ 18 The trial court denied the property owner’s motion to dismiss, but the reviewing court
reversed. Id. ¶¶ 26, 45. The reviewing court explained that only the certificate holder could
extend the redemption period. Id. ¶ 39. Because GJ had already assigned away its rights in the
tax certificate to Sabre, GJ had no right to extend the redemption period. Id. ¶ 41 (“ ‘An
assignment shall vest in the assignee *** all the right and title of the original purchaser.’ ”
(quoting 35 ILCS 200/21-250 (West 2008))). Consequently, the extension filed by GJ was a
nullity, and the June 12, 2008, expiration date remained in effect. Id. Because no tax deed was
recorded by June 12, 2009, the tax deed that was ultimately recorded was untimely and therefore
void. Id.
¶ 19 Here, on February 3, 2010, Z Financial purportedly extended the redemption period until
June 4, 2012. However, Z Financial did not have any interest in the property until Z Financial,
LLC, assigned it its rights on April 5, 2010. Thus, the extension that Z Financial filed on
February 3, 2010, was a nullity and did not extend the redemption period.
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2014 IL App (2d) 130995¶ 20 We next consider whether the petitioner is entitled to the return of any of the money
spent for the tax certificate. In arguing that the petitioner is not, the respondent points to section
22-85 of the Property Tax Code, which provides that, if a tax purchaser does not timely record a
deed within one year of the end of the redemption period, then the tax certificate becomes void
and the tax purchaser is not entitled to any reimbursement for the money he spent acquiring the
tax certificate. 35 ILCS 200/22-85 (West 2012). Section 22-85 of the Property Tax Code does
not apply here, because the respondent redeemed his property under protest before the time
period set forth in that statute had expired. 1
1
We note a possible inconsistency between sections 21-350 and 21-380 of the Property
Tax Code. Section 21-350 of the Property Tax Code provides that a property owner has two
years from the date of the sale to redeem his property, unless the redemption period is properly
extended (which in this case it was not). 35 ILCS 200/21-350 (West 2012). Section 21-380
provides that a redemption under protest must be filed after a petition for a tax deed has been
filed. 35 ILCS 200/21-380 (West 2012). Section 21-380 does not specify the last date that a
redemption under protest may be filed, only that it must occur before the hearing on the petition
for a tax deed. Id. Thus, section 21-380 seemingly allows a redemption under protest to be filed
even after section 21-350’s period for a redemption has expired.
We need not resolve this possible inconsistency, however, because it would not impact
our ultimate resolution of the case. Under section 21-380 of the Property Tax Code, the
respondent’s redemption under protest was timely filed. See A.P. Properties, Inc. v. Goshinsky,
186 Ill. 2d 524, 533 (1999) (the provisions of section 21-380 apply to a person redeeming under
protest after a petition for tax deed has been filed and when the redeemer desires to preserve the
right to defend against the petition for a tax deed). Further under section 21-350 of the Property
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2014 IL App (2d) 130995¶ 21 We instead look to section 21-380 of the Property Tax Code. 35 ILCS 200/21-380 (West
2012). That section provides that a person may pay the required redemption amount under
protest by specifying defenses that would provide a sufficient basis to deny the entry of an order
for issuance of a tax deed. In his redemption under protest, the respondent correctly argued that
the tax certificate had expired. When the petitioner did not provide timely notice of the
expiration of the redemption period (35 ILCS 200/22-10 (West 2012)) or file a petition for a tax
deed within the required time, as the redemption period was not extended (35 ILCS 200/22-30
(West 2012)), the tax deed petition could have been successfully challenged. Under section 21-
380 of the Property Tax Code, if a protest is sustained, the court may declare the sale to be a sale
in error and shall direct the county clerk to return all or part of the redemption money to the party
redeeming. Here, the trial court should have sustained the protest and declared the sale in error.
A determination of the amounts to be returned to the parties requires that several sections of the
Tax Code, although our courts have found that a redemption filed after the end of the statutory
period is a nullity (In re Application of the County Treasurer & ex officio County Collector, 378
Ill. App. 3d 842, 846 (2007)), our courts have also determined that a trial court may equitably
extend the statutory redemption period (id. at 852) and that the tax purchaser may waive strict
adherence to the redemption period (In re Application of County Collector for Judgment of Sale
Against Certain Lands & Lots, 131 Ill. App. 2d 509, 512 (1970)). Here, as both the trial court
and the petitioner treated the respondent’s redemption under protest as having been timely filed
due to the petitioner’s attempt to extend the redemption period, we will also treat the redemption
under protest as timely filed. Based on this determination, the respondent may not argue on
remand that his redemption under protest was a nullity.
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2014 IL App (2d) 130995Property Tax Code be read together. See In re Application of the County Collector, 325 Ill. App.
3d 152, 156 (2001) (Darco).
¶ 22 In Darco, the court determined that, once a redemption under protest has been filed, the
character of the tax deed proceedings changes, “with the tax purchaser attempting to obtain the
statutory penalty interest and the delinquent taxpayer attempting to ward off the purchaser and
recover some of the funds it has deposited with the county clerk.” Id. at 155-56. The court noted
that the respondent in that case could have defended against the petitions for tax deeds without
redeeming, because defective notices precluded the tax deeds from issuing. Id. at 156. Had that
occurred, the petitioner would have been entitled to petition for a refund pursuant to section 22-
50 of the Property Tax Code (35 ILCS 200/22-50 (West 1994)) if she could establish that she
made a bona fide attempt to comply with the statutory requirements for the issuance of a tax
deed. See Darco, 325 Ill. App. 3d at 156. The court determined that the petitioner should not
receive any less after the respondent’s redemption than she would receive if she were to obtain a
refund pursuant to section 22-50 absent a redemption. Id. at 157.
¶ 23 Here, as in Darco, the respondent could have successfully defended against a tax deed
petition based on the expiration of the certificate. Then, the petitioner would have been entitled
to seek a refund under section 22-50, provided that it could show a bona fide attempt to comply
with the statutory requirements to procure a tax deed. Such a refund would consist of “the
purchase price and other taxes that were paid and were validly posted to the tax judgment, sale
redemption and forfeiture record after the tax sale [citation] but no penalty interest or costs.” Id.
at 156 (citing In re Application of the County Treasurer & ex officio Collector of Cook County,
305 Ill. App. 3d 995, 1000-01 (1999)). The respondent would receive a partial refund of the
redemption money. Should the petitioner fail to prove a bona fide attempt, the petitioner would
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2014 IL App (2d) 130995not be entitled to any refund and the respondent would be entitled to a full refund of the
redemption money.
¶ 24 Whether the petitioner made a bona fide attempt is a factual question. In re Application
of the Kane County Collector, 297 Ill. App. 3d 745, 748 (1998). Because the trial court did not
make that factual finding in this case, we remand for the trial court to make that determination.
¶ 25 CONCLUSION
¶ 26 For the foregoing reasons, the judgment of the circuit court of Boone County is reversed
and the cause is remanded for additional proceedings consistent with this decision.
¶ 27 Reversed and remanded with directions.
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