In re Application of the County Treasurer & ex officio County Collector of Cook County

2023 IL App (1st) 220070No. 1-22-0070
Order filed June 30, 2023
Sixth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re APPLICATION OF THE COUNTY TREASURER ) Appeal from the Circuit Court
AND ex officio COUNTY COLLECTOR OF COOK ) of Cook County, Illinois.
COUNTY, ILLINOIS, for Order of Judgment and Sale of )
Lands and Lots Upon Which All or a Part of the General ) No. 2015 COTD 003154
Taxes for Three or More Years Are Delinquent )
) The Honorable
(DJJ Investments, LLC, ) Maureen O. Hannon,
) Judge, Presiding.
Petitioner-Appellant, )
)
v. )
)
Neldava, LLC, )
)
Respondent-Appellee). )
JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment and
opinion.
OPINION
¶1 On January 9, 2014, Millennium Land Development Corporation (Millennium) purchased
the 2007 to 2011 delinquent property taxes on a property located at 116 N. Pulaski Road, Chicago,
Illinois (Guyon Hotel), and the county clerk of Cook County issued a certificate of purchase to
No. 1-22-0070
Millennium. In October 2015, Millennium assigned the certificate of purchase to Illinois Land
Trust No. 8002359629 (Land Trust). In May 2017, the Land Trust assigned the certificate to
appellee Neldava, LLC (Neldava). The circuit court substituted Neldava as the tax deed petitioner
and entered an order directing the county clerk to issue a tax deed on May 26, 2017. About two
months later, appellant DJJ Investments, LLC (DJJ), filed a petition to void tax deed or vacate the
order issuing the tax deed as well as subsequent amendments. In the third amended petition, count
I alleged the tax deed was void under section 22-85 of the Property Tax Code (35 ILCS 200/22-
85 (West 2016)). Count II alleged the court should vacate the order issuing the tax deed under
section 22-45 of the Property Tax Code (id. § 22-45) and section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2016)) and issue an order directing DJJ to pay the
reimbursement amount under section 22-80 of the Property Tax Code (35 ILCS 200/22-80 (West
2016)). Neldava filed an answer to the third amended petition raising an affirmative defense of
ratification as to DJJ’s allegations that the certificate assignments were fraudulent and void. DJJ
filed a motion to dismiss the affirmative defense of ratification, which the court denied. The case
proceeded to trial, and after the presentment of evidence, DJJ filed a renewed motion to dismiss
and alternative answer to the affirmative defense of ratification. The court entered judgment in
favor of Neldava and against DJJ. On appeal, DJJ argues the circuit court erred in denying (1) the
motion to dismiss Neldava’s affirmative defense of ratification, (2) count I of the third amended
petition alleging the tax deed was void, and (3) count II of the third amended petition alleging the
order issuing the tax deed should be vacated. For the following reasons, we affirm the circuit
court’s judgment.
¶2 I. BACKGROUND
-2-
No. 1-22-0070
¶3 On January 9, 2014, Millennium purchased the 2007 to 2011 delinquent property taxes on
a property located at 116 N. Pulaski Road, Chicago, Illinois. The subject property is commonly
known as the Guyon Hotel. The county clerk of Cook County issued a certificate of purchase on
the Guyon Hotel to Millennium on March 19, 2014. On September 29, 2014, DJJ acquired a
judicial deed to the Guyon Hotel through a foreclosure of a receiver’s lien.
¶4 On October 1, 2015, Millennium, through its attorney, Kenneth Pilota, assigned the
certificate of purchase to the Land Trust. The Land Trust beneficiary was a trust titled
O.M.A.M.E.G.A.N. trust. Hildegard Szkirpan was the trustee and primary beneficiary of the
O.M.A.M.E.G.A.N trust and had power of direction of the O.M.A.M.E.G.A.N. trust. Hildegard is
also the mother of Daniel Szkirpan, the president of Millennium. The O.M.A.M.E.G.A.N trust
owns Millennium’s corporate shares. On October 28, 2015, Pilota, on behalf of the Land Trust,
filed a petition for tax deed. The petition states the period of redemption for the sale expired on
March 17, 2016. The court granted a motion to extend the redemption expiration date to June 10,
2016. The Guyon Hotel was not redeemed by June 10, 2016.
¶5 Between February 2016 and May 2017, Noah Weininger and his law firm, Johnson,
Blumberg & Associates, LLC (Johnson, Blumberg & Associates), 1 acted on behalf of DJJ
concerning the Guyon Hotel. On February 2, 2016, Johnson, Blumberg & Associates ordered an
estimate of redemption regarding the Guyon Hotel from the Cook County Clerk’s Office. The
estimate of redemption invoice references the subject tax sale and certificate of purchase number.
After being informed that someone was attempting to sell the Guyon Hotel, Weininger sent a letter
1
The estimate of redemption invoice lists the customer as “Johnson, Blumberg & Associated” at
“230 West Monroe Street #1125 Chicago, IL 60606.” The entity listed on the letterhead of Weininger’s
letters is “Johnson, Blumberg & Associates, LLC” at “230 West Monroe Street, Suite 1125, Chicago,
Illinois 60606.”
-3-
No. 1-22-0070
to Brian Ploszay of Altura Realty on November 3, 2016, stating “DJJ is the owner of the Property
by virtue of a Judicial Sale Deed” and Ploszay should “immediately terminate any and all
advertisements or listings on the Property for any purpose.” On November 8, 2016, Johnson,
Blumberg & Associates ordered a second estimate of redemption from the Cook County Clerk’s
Office. The estimate provides that the Guyon Hotel was sold to Millennium in a scavenger sale
and the final redemption date was June 10, 2016. After being informed about another attempt to
sell the Guyon Hotel, Weininger sent a letter to Nick Pancotto of Coldwell Banker Residential on
May 22, 2017, stating “DJJ is the owner of the Property by virtue of a Judicial Sale Deed” and
Pancotto should “immediately terminate any and all advertisements or listings on the Property for
any purpose.”
¶6 On May 23, 2017, Daniel assigned the certificate of purchase to Neldava as attorney in fact
for the Land Trust. On May 26, the court granted a motion to substitute Neldava as the tax deed
petitioner. The same day, after finding Neldava had “fully complied with all the statutes and the
Constitution of the State of Illinois relating to sales of real estate for taxes and the issuance of Tax
Deeds,” the court entered an order directing the county clerk to issue a tax deed to Neldava.
Neldava recorded the tax deed on June 6, 2017.
¶7 On August 4, 2017, DJJ filed a petition to void the tax deed or vacate the order issuing the
tax deed. The petition was subsequently amended three times, and DJJ filed the final third amended
petition to void the tax deed or vacate the order issuing the tax deed on May 28, 2021. DJJ raised
three counts in the third amended petition. Under count I, DJJ alleged the motion to issue tax deed
was void under section 22-85 of the Property Tax Code (35 ILCS 200/22-85 (West 2016)) because
(1) the redemption period expired without a request for extension and before the filing of the
-4-
No. 1-22-0070
petition for tax deed; (2) the certificate assignments were invalid and, therefore, the true holder of
the certificate, Millennium, did not take out and record the tax deed within one year from and after
the time for redemption expired; and (3) Daniel did not have authority to direct the Land Trust to
be the tax deed petitioner and “direct and submit fraudulent assignments.” Under count II, DJJ
alleged the motion to issue tax deed must be vacated under section 22-45 of the Property Tax Code
(id. § 22-45) and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016))
because (1) the tax deed petitioner failed to diligently ascertain, name, or direct notice to DJJ’s
registered agent in accordance with the notice requirements of the Property Tax Code and (2) the
tax deed was procured by fraud under section 22-45(3) of the Property Tax Code (35 ILCS 200/22-
45(3) (West 2016)). Under count III, DJJ requested indemnity.
¶8 Neldava filed an answer to the third amended petition. In the answer, Neldava raised the
affirmative defense of ratification as to the allegations that the certificate assignments were
fraudulent and void. Neldava attached an executed ratification to the answer. The ratification stated
(1) the beneficiary of the Land Trust is O.M.A.M.E.G.A.N. trust; (2) Hildegard was the trustee of
O.M.A.M.E.G.A.N. trust and held power of direction with respect to the Land Trust; (3) Hildegard
granted Daniel power of attorney to execute certain duties associated with the Land Trust on her
behalf; (4) the Land Trust was “unaware” that Millennium assigned the certificate of purchase to
it; (5) Pilota filed a petition for tax deed on behalf of the Land Trust; and (6) Daniel, as attorney in
fact for the Land Trust, assigned the certificate of purchase to Neldava. Furthermore, the trustee
of the Land Trust averred that he would have (1) accepted the assignment of the certificate into the
Land Trust, (2) authorized Pilota to file the petition for tax deed, and (3) authorize the assignment
of the certificate to Neldava. DJJ filed a motion to dismiss Neldava’s affirmative defense pursuant
-5-
No. 1-22-0070
to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)). The trial court
denied the motion to dismiss.
¶9 The case proceeded to trial from July 22 to 26, 2021. At the trial, the parties called eight
witnesses and admitted 62 exhibits into evidence. Pertinent to this appeal, Daniel testified that the
certificate of purchase was issued to his company, Millennium, in 2014. Daniel hired Pilota to
perform duties pertaining to the certificate. In particular, Daniel directed Pilota to assign the
certificate to the Land Trust and to file a petition for tax deed on behalf of the Land Trust. Daniel
subsequently assigned the certificate as attorney in fact for the Land Trust to Neldava. Daniel
believed he had authority to assign the certificate to Neldava as power of attorney for Hildegard,
who was the trustee and had power of direction of the O.M.A.M.E.G.A.N. trust, the beneficiary of
the Land Trust, and as one of the successor beneficiaries of the O.M.A.M.E.G.A.N. trust. When
asked who sold the certificate to Neldava, Daniel responded, “I don’t know if you want to say I
did personally, but myself and/or Millennium and/or the Land Trust.” Daniel acknowledged that
the contract concerning the sale of the certificate to Neldava stated that the transfer of the property
was Millennium and Skirp Construction, Inc. Daniel explained Hildegard was the president of
Skirp Construction prior to her death and Daniel was an officer of Skirp Construction. When asked
why the contract does not state that the Land Trust is selling the certificate, Daniel explained, “both
Millennium Land Development Corporation and Skirp Construction, Inc., the shares of those
companies are owned by the same entity, namely the O.M.A.M.E.G.A.N. Trust, which is the
beneficiary of the Chicago Title Land Trust.”
¶ 10 Pilota testified that he was an attorney and practiced in tax deed and tax indemnity
proceedings. Pilota stated Daniel originally retained Pilota to represent “Millennium at that time.”
-6-
No. 1-22-0070
Daniel also retained Pilota as an agent for the Land Trust. Pilota assigned the certificate of purchase
to the Land Trust on behalf of Millennium on October 1, 2015. Pilota also prepared the petition
for tax deed on behalf of the Land Trust.
¶ 11 Patrick O’Flaherty testified that Neldava was his business. O’Flaherty stated he had “been
driving by [the Guyon Hotel] for years” and “[n]obody called me back on the for sale sign that
was on the property.” In 2013, O’Flaherty contacted Daniel “to see if the taxes were paid and if it
could be obtained that way.” Daniel had previously performed property tax reduction work for
O’Flaherty. After conducting research, Daniel informed O’Flaherty that the property taxes had not
been paid and that the property was up for auction. Both Daniel and O’Flaherty agreed to
participate in the tax sale with the understanding that Daniel would pay for the certificate of
purchase for O’Flaherty. O’Flaherty explained, “It was my understanding that Dan was going to
procure the amount that was owed to the county, whatever fines and fees had to go along with it,
do the paperwork, and I would pay the county their taxes, and the deed would be issued to me.”
¶ 12 Donald Jones testified he was the manager of DJJ. Jones currently owned his primary
residence and paid taxes on the property. Jones also owned “[m]ore than ten” other properties in
the past including four in Illinois. Jones became aware of the Guyon Hotel through a friend and
later acquired the property through a judicial deed. Jones did not investigate the status of the
property before DJJ acquired the judicial deed. Jones neither transferred the tax bills to DJJ nor
received any tax bills. Jones stated he first became aware of the tax sale “[w]hen we had a contract
on the property, the buyer came back with a whole bunch of issues, and we were alerted then.”
Jones does not recall the date of this event but acknowledged that the date of the contract was July
31, 2017. Jones stated that he was never advised about a tax sale, never been to the Cook County
-7-
No. 1-22-0070
Clerk’s Office, and never ordered an estimate of redemption. Jones was aware that someone was
trying to list the property for sale. When asked if he knew what Weininger was doing for DJJ in
2015, Jones testified, “Like I know he had—the property was listed by someone that wasn’t a—it
was listed by a realtor that wasn’t someone I hired. So, he was sending a cease and desist letter
and doing some other items.” Jones was aware that Weininger sent a cease and desist letter to
Ploszay of Altura Realty on November 3, 2016, and to Pancotto of Coldwell Banker Residential
on May 22, 2017. When asked if he received a letter dated November 11, 2016, from Samuel
Macaluso, Daniel’s attorney, stating Millennium paid the taxes on the property and DJJ failed to
meet the tax sale redemption period, Jones responded, “I don’t recall.” When shown interrogatories
wherein he stated that he discovered the taxes were delinquent on August 30, 2013, Jones
responded “I don’t recall.” Jones testified, if he had known about the delinquent taxes, he would
have paid the taxes.
¶ 13 Weininger testified he represented DJJ concerning the Guyon Hotel. At the time,
Weininger was employed with Johnson, Blumberg & Associates. He primarily handled “mortgage
foreclosure but other liens as well, receiver lien foreclosure, judgment liens,” and “it wasn’t
uncommon for me to come across some tax sale issue.” Regarding his November 2016 letter,
Weininger explained, “I wrote this letter to tell the real estate agent to terminate the listing because
DJJ was the owner.” When asked if he remembered reading a letter from Samuel Macaluso in
2016, Weininger responded, “Yes. I remember it but I don’t remember like any of the other
context.” Weininger could not specifically remember taking any action pertaining to the property
taxes after receiving Macaluso’s letter. Weininger also could not specifically remember ordering
an estimate of redemption in November 2016. Regarding the May 2017 letter, Weininger stated,
-8-
No. 1-22-0070
“I remember again there was some indication someone had listed the property, and we just notified
them that DJJ was the owner, and that they should remove the listing.” Weininger never received
a formal notice that a tax sale and redemption date was pending on the Guyon Hotel.
¶ 14 Following the trial, the parties submitted briefs to the court. DJJ also filed a renewed
section 2-615 motion to dismiss and alternative answer to the affirmative defense of ratification.
The court entered judgment in favor of Neldava and against DJJ in its amended written order on
December 17, 2021. As to count I, the court found a Trust may hold and convey any right, title,
and interest in a certificate of purchase based on witness testimony and the Land Trust Beneficial
Interest Disclosure Act (765 ILCS 405/0.01 et seq. (West 2020)). The court also found the transfer
of the certificate from Millennium to the Land Trust and subsequently from the Land Trust to
Neldava was proper where Daniel and Pilota had the authority under their respective roles to assign
the certificate and the Land Trust trustee ratified prior unauthorized acceptance and transfer of the
assignments.
¶ 15 As to count II, the court held DJJ failed to exercise due diligence. Specifically, the court
found that, throughout the tax sale proceedings, (1) DJJ’s attorney ordered an estimate of
redemption for the tax sale on February 2, 2016, and November 8, 2016; (2) Weininger sent letters
on behalf of DJJ demanding the Guyon Hotel not be listed for sale; and (3) Weininger received a
letter from Macaluso stating Weininger’s client failed to redeem the property by the redemption
expiration date and advising Weininger to contact the county to confirm the information. Based
on this evidence, the court determined “the knowledge of the pending tax sale proceeding must be
imputed to DJJ at the very least by November of 2016, and at the earliest by February 2016,
because the law firm was necessarily aware of the tax sale proceeding.” The court also found “the
-9-
No. 1-22-0070
claim that DJJ and the relevant players were unaware of the tax deed delinquency when they had
been involved in the mortgage foreclosure litigation seems incredible.” The court further held DJJ
failed to state a meritorious claim because “[t]here was no evidence of fraud presented to the
[c]ourt regarding purchase or assignments of the certificate between Neldava, Chicago Title Land
Trust, or Millennium.” This appeal follows.
¶ 16 II. JURISDICTION
¶ 17 DJJ filed a third amended petition on May 28, 2021. The circuit court denied the petition
in an amended order on December 17, 2021. On January 13, 2022, DJJ filed a notice of appeal.
We have jurisdiction over this appeal pursuant to article VI, section 6, of the Illinois Constitution
(Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), Rule 303
(eff. July 1, 2017), and Rule 304 (eff. Mar. 8, 2016).
¶ 18 III. ANALYSIS
¶ 19 On appeal, DJJ argues the circuit court erred in denying (1) the section 2-615 motion to
dismiss the affirmative defense of ratification, (2) count I of the third amended petition alleging
the tax deed was void under section 22-85 of the Property Tax Code, and (3) count II of the third
amended petition alleging the court should vacate the order issuing the tax deed pursuant to section
22-45(3) of the Property Tax Code and section 2-1401 of the Code of Civil Procedure and issue
an order directing DJJ to pay the reimbursement amount under section 22-80 of the Property Tax
Code. We review each issue respectively.
¶ 20 A. Motion to Dismiss
- 10 -
No. 1-22-0070
¶ 21 DJJ argues the circuit court erred in denying the section 2-615 motion to dismiss the
affirmative defense of ratification. 2 Specifically, DJJ claims the court improperly considered
matters outside of Neldava’s ratification defense allegations. DJJ also contends Neldava failed to
state a legally recognized claim of ratification because (1) a land trust cannot hold a certificate of
purchase, (2) Pilota’s and Daniel’s unauthorized assignments cannot be ratified, and (3) the
trustee’s ratification has no legal effect. Neldava asserts that DJJ waived any defect in the
affirmative defense pleading.
¶ 22 A motion to dismiss brought under section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 2016)) is used to attack defects in the pleading. An affirmative defense must allege
facts with the same degree of specificity required to establish a cause of action. JPMorgan Chase
Bank, N.A. v. East-West Logistics, L.L.C., 2014 IL App (1st) 121111, ¶ 31. As with all section 2-
615 motions, a 2-615 motion to dismiss affirmative defenses admits all well-pleaded facts
constituting the defenses and attacks only the legal sufficiency of those facts. Id. An affirmative
defense should not be stricken where well-pleaded facts raise the possibility that the party asserting
2
In the circuit court, DJJ challenged Neldava’s affirmative defense of ratification on three
occasions: DJJ (1) filed a section 2-615 motion to dismiss before trial, (2) moved to dismiss the
affirmative defense of ratification during trial, and (3) filed a renewed section 2-615 motion to dismiss at
the end of trial. In its appellate brief, although not explicitly stated, it appears DJJ challenges the renewed
section 2-615 motion to dismiss based on its argument that the circuit court improperly relied on trial
evidence in denying the motion. The record shows the circuit court did not make an independent ruling on
the motion but, instead, held that the Land Trust trustee ratified the assignments in its final written order.
A litigant’s failure to obtain a ruling on a motion does not translate into a denial of the motion by the
court. Hadley v. Ryan, 345 Ill. App. 3d 297, 303 (2003). It is the responsibility of the party filing a motion
to request the trial judge to rule on it, and when no ruling has been made on a motion, the motion is
presumed to have been abandoned absent circumstances indicating otherwise. Commerce Trust Co. v. Air
1st Aviation Cos., 366 Ill. App. 3d 135, 142 (2006). The argument raised in DJJ’s renewed motion to
dismiss is the same as the one in its initial motion to dismiss. The trial court denied the initial motion to
dismiss. As such, we review DJJ’s claim as it derives from the circuit court’s denial of the initial motion
to dismiss.
- 11 -
No. 1-22-0070
the defense will prevail. Id. A reviewing court should disregard any conclusions of fact or law not
supported by allegations of specific fact. Reverse Mortgage Funding, LLC v. Catchins, 2023 IL
App (1st) 221197, ¶ 23. When a defense is founded upon a written instrument, that instrument
must be attached to the pleading as an exhibit, and that exhibit constitutes a part of the pleading
for purposes of a motion to dismiss. F.H. Prince & Co. v. Towers Financial Corp., 275 Ill. App.
3d 792, 797 (1995). A trial court’s ruling on a section 2-615 motion to dismiss is subject to a
de novo review on appeal. Heastie v. Roberts, 226 Ill. 2d 515, 530-31 (2007).
¶ 23 We first address Neldava’s argument that DJJ waived its right to renew its section 2-615
motion to dismiss Neldava’s affirmative defense because it answered the affirmative defense and
proceeded to trial and judgment was entered against DJJ. Neldava relies on Adcock v. Brakegate,
Ltd., 164 Ill. 2d 54 (1994), to support its argument. The Adcock court recognized, where a circuit
court denies a party’s motion to dismiss, and that party elects to file an answer to the pleading, the
party waives any defect in the pleading. Id. at 60. “A corollary to the waiver principle is the
doctrine of aider by verdict.” Id. Under this doctrine, if a party allows an action to proceed to
verdict, the verdict cures technical and clerical errors as well as defective allegations of essential
facts. Id. at 60-61.
¶ 24 There is an exception to the doctrine of waiver and aider by verdict that allows a party to
raise at any time a claim that the pleading fails to state a cause of action. Id. at 61. “[T]his exception
applies only when a complaint fails to state a recognized cause of action. The exception does not
apply where the complaint states a recognized cause of action, but contains an incomplete or
otherwise insufficient statement of that cause of action.” Id. at 61-62. “Stated more succinctly,
courts draw a distinction between a complaint that alleges no cause of action, which may be
- 12 -
No. 1-22-0070
challenged at any time, and one which defectively or imperfectly alleges a cause of action.” Id. at
62. Indeed, this exception is equally applicable to motions to dismiss an affirmative defense under
section 2-615. Our supreme court stated, “The objection that *** a [pleading] does not state a
defense[ ] may be raised at any time, either before or after judgment.” Krachock v. Department of
Revenue, 403 Ill. 148, 153 (1949). Because DJJ challenges whether Neldava raised a legally
recognized defense, we review DJJ’s claim.
¶ 25 DJJ argues that a land trust can only hold title to real property and that Illinois case law has
classified a certificate of purchase as personal property. DJJ asserts that, therefore, a land trust
cannot hold a certificate of purchase and ratification of the unauthorized assignment from
Millennium to the Land Trust is impossible. Neldava claims a land trust may hold a certificate of
purchase because the certificate is a charge on real property. A finding that a land trust cannot hold
a certificate of purchase would defeat Neldava’s ratification defense. Hence, we first address, as
an issue of first impression, whether a land trust can hold a certificate of purchase issued in a tax
sale proceeding. This argument presents a question of law, which we review de novo. People
ex rel. T-Mobile USA, Inc. v. Village of Hawthorn Woods, 2012 IL App (2d) 110192, ¶ 39.
¶ 26 We begin by analyzing the applicable land trust law. The Illinois land trust is a unique
creation of the Illinois bar with its origins rooted in case law rather than statute. People v. Chicago
Title & Trust Co., 75 Ill. 2d 479, 487 (1979). “The land trust has, over the years, served as a useful
vehicle in real estate transactions for maintaining secrecy of ownership and allowing ease of
transfer.” Id. While a common law trust creates a split between the legal title in the trustee and the
equitable title in the beneficiary, an Illinois land trust places both the legal and equitable title in
the trustee. FirstMerit Bank, N.A. v. Soltys, 2015 IL App (1st) 140100, ¶ 22. “ ‘An Illinois land
- 13 -
No. 1-22-0070
trust is an arrangement under which legal and equitable title to real property is held by a trustee
and the interest of the beneficiary is personal property.’ ” Id. ¶ 19 (quoting Patrick v. Village
Management, 129 Ill. App. 3d 936, 939 (1984)). “ ‘A land trust is created by the execution and
recording of a deed in trust transferring all legal and equitable title to real property to a trustee.’ ”
Id. ¶ 21 (quoting Redfield v. Continental Casualty Corp., 818 F.2d 596, 607 (7th Cir. 1987)). “ ‘A
second document, the trust agreement, is contemporaneously executed and outlines the right of the
beneficiary to retain absolute control over the management, use, and disposition of the property
and to receive all proceeds from the property.’ ” Id. (quoting Redfield, 818 F.2d at 607).
¶ 27 Several Illinois statutes regulate specific functions of a land trust. See generally 765 ILCS
405/0.01 et seq. (West 2022); 765 ILCS 407/1 et seq. (West 2022); 765 ILCS 410/0.01 et seq.
(West 2022); 765 ILCS 415/0.01 et seq. (West 2022); 765 ILCS 420/1 et seq. (West 2022); 765
ILCS 425/0.01 et seq. (West 2022); 765 ILCS 430/0.01 et seq. (West 2022); 765 ILCS 435/1
et seq. (West 2022). Aside from the Sale of Residential Property Subject to Land Trust Act (765
ILCS 430/0.01 et seq. (West 2022)), which addresses the selling of property in a land trust, these
statutes define land trust as follows:
“[A]ny express agreement or arrangement whereof a use, confidence or trust is declared of
any land, or of any charge upon land, for the use or benefit of any beneficiary, under which
the title to real property, both legal and equitable, is held by a trustee, subject only to the
execution of the trust, which may be enforced by the beneficiaries who have the exclusive
right to manage and control the real estate, to have the possession thereof, to receive the
net proceeds from the rental, sale, hypothecation or other disposition thereof, and under
- 14 -
No. 1-22-0070
which the interest of the beneficiary is personal property only.” 765 ILCS 405/1 (West
2022).
See also 765 ILCS 415/2 (West 2022); 765 ILCS 420/2 (West 2022).
¶ 28 Notably, the statutory definition of land trust includes “any charge upon land.” This court
has found that a certificate of purchase constitutes a charge on the land. See City of Chicago v.
City Realty Exchange, Inc., 127 Ill. App. 2d 185 (1970). Specifically, this court stated,
“One of the interests a tax purchaser acquires through his certificate of purchase is the right
to be paid the price of the sale, interest, costs and any other taxes paid, if there is
redemption. This right is a charge on the real estate for payment of debt represented by the
taxes.” Id. at 190.
¶ 29 We also find guidance in the Modern Land Trust Practice manual from the Illinois Institute
for Continuing Legal Education authored by David Lanciotti. Lanciotti explained, “Although a
title interest created by a conventional deed in trust is by far the most common arrangement
established with a trustee, the land trust can hold non-title interests in real estate ***.” David J.
Lanciotti, Holding Non-Title Interests, in Modern Land Trust Practice § 3.12 (Ill. Inst. for Cont.
Legal Educ. 2020). For instance, “it is not unusual to see a land trust holding a bidder’s interest in
*** a real estate tax sale ***. If the bid ripens into the right to receive title, the trust becomes
permanently established. If redemption is made, the trust is closed.” David J. Lanciotti, Contract
Lessee’s, Purchaser’s, and Bidder’s Interest, in Modern Land Trust Practice § 3.14 (Ill. Inst. for
Cont. Legal Educ. 2020).
¶ 30 Indeed, a holder of a certificate of purchase has a lien that can ripen into title upon
compliance with statutory requisites of the Property Tax Code. If a court finds compliance with
- 15 -
No. 1-22-0070
the Property Tax Code, it enters an order directing the county clerk to issue a tax deed to the
purchaser of the certificate of purchase or his or her assignee—in this case a land trust. See 35
ILCS 200/22-40 (West 2016). The county clerk issues a tax deed to the land trust, and the trustee
holds title to the real estate. David J. Lanciotti, Contract Lessee’s, Purchaser’s, and Bidder’s
Interest, in Modern Land Trust Practice § 3.14 (Ill. Inst. for Cont. Legal Educ. 2020). Based on
our legal jurisprudence and supporting sources, we find a land trust may hold a certificate of
purchase. As such, a certificate of purchase may be assigned to a land trust.
¶ 31 In light of our holding, we next determine whether Neldava presented a legally recognized
affirmative defense of ratification of the unauthorized assignments of the certificate of purchase.
When an act is performed for the benefit of another by a person without authority, or by an
authorized agent in excess of his authority, the person for whose benefit the act was done may
ratify the act. Kulchawik v. Durabla Manufacturing Co., 371 Ill. App. 3d 964, 970 (2007).
Ratification occurs where the principal, with knowledge of the material facts of the unauthorized
transaction, either retains the benefits of the transaction or takes a position consistent with
affirmation of the transaction. Karetzkis v. Cosmopolitan National Bank, 37 Ill. App. 2d 484, 491
(1962); Schoenberger v. Chicago Transit Authority, 84 Ill. App. 3d 1132, 1138-39 (1980).
Ratification may be expressed or inferred. Schoenberger, 84 Ill. App. 3d at 1138. Ratification of
an unauthorized act is tantamount to an original authorization and confirms what was originally
unauthorized. Kulchawik, 371 Ill. App. 3d at 970. “The general rule is that the act of ratification
must be of the same nature as that which would be required for conferring the authority in the first
instance.” (Internal quotation marks omitted.) Prodromos v. Poulos, 202 Ill. App. 3d 1024, 1029
(1990).
- 16 -
No. 1-22-0070
¶ 32 An assignment operates to transfer some identifiable property right, interest, or claim from
the assignor to assignee. Department of Transportation v. Heritage-Pullman Bank & Trust Co.,
254 Ill. App. 3d 823, 826 (1993). “Generally, no particular form of assignment is required; any
document which sufficiently evidences the intent of the assignor to vest ownership of the subject
matter of the assignment in the assignee is sufficient to effect an assignment.” (Internal quotation
marks omitted.) Cincinnati Insurance Co. v. American Hardware Manufacturers Ass’n, 387 Ill.
App. 3d 85, 100 (2008). “A valid assignment needs only to assign or transfer the whole or a part
of some particular thing, debt, or chose in action and it must describe the subject matter of the
assignment with sufficient particularity to render it capable of identification.” (Internal quotation
marks omitted.) Id. “Whether an assignment has occurred is dependent upon proof of intent to
make an assignment and that intent must be manifested.” (Internal quotation marks omitted.) Id.Furthermore, “an assignment shall not be effective towards the obligor or a third party unless
accepted by the obligor or notified to him.” (Internal quotation marks omitted.) Overseas
Development Disc Corp. v. Sangamo Construction Co., 686 F.2d 498, 504 (7th Cir. 1982).
Assignments are “subject to the same requisites for validity as are other contracts, such as intent,
mutuality of assent, capacity to contract, legal subject matter, and consideration.” (Internal
quotation marks omitted.) American Hardware Manufacturers Ass’n, 387 Ill. App. 3d at 100.
¶ 33 In its affirmative defense of ratification, Neldava alleged that following the tax sale for the
Guyon Hotel, a certificate of purchase was issued to Millennium. In October 2015, Millennium,
through its attorney Pilota, assigned the certificate to the Land Trust. In May 2017, Daniel, as
attorney in fact for the Land Trust, assigned the certificate to Neldava. Neldava noted DJJ’s
challenges to the assignments are that (1) Pilota had no authority to assign the certificate to the
- 17 -
No. 1-22-0070
Land Trust, (2) the Land Trust was not aware and did not accept the assignment, (3) Daniel did
not have authority to assign the certificate to Neldava, and (4) the Land Trust was not aware of the
assignment to Neldava. Neldava alleged, to the extent DJJ’s allegations were true, “the Land
Trust’s express ratification, acknowledgment, and acceptance of those specific acts approves what
was originally an unauthorized act.” In the ratification, the Land Trust trustee averred that the Land
Trust would have accepted Millennium’s assignment of the certificate and would have authorized
the assignment of the certificate to Neldava. Considering these allegations, we find Neldava
sufficiently pled a legally recognized defense of ratification.
¶ 34 To support its argument that Neldava cannot plead a ratification defense, DJJ asserts that
Neldava misconstrues the holding in Prodromos, 202 Ill. App. 3d 1024. In Prodromos, Jerry
Poulos agreed to sell parcels of real estate to John Prodromos. Id. at 1027. First National Bank of
Skokie held legal title to the real estate as trustee of trust No. 50102, and Poulos was the sole
beneficiary of the trust. Id. at 1026. Poulos signed the real estate sales contract as the agent of First
National Bank of Skokie. Id. at 1027. Subsequently, Prodromos sued First National Bank of Skokie
and Poulos for specific performance of the sales contract. Id. at 1026. The defendants filed a
motion to dismiss the action alleging, inter alia, Poulos did not have written authority to act as an
agent on behalf of the trust in executing the contract and the trustee never ratified the contract. Id.
The circuit court granted the motion. Id. On appeal, this court considered whether the trustee
ratified Poulos’s act and found no evidence of ratification. Id. at 1029-30. DJJ asserts, while the
Prodromos court applied principles of ratification in a case involving a land trust, there was no
issue as to whether the land trust could hold the property at issue. DJJ claims, here, the Land Trust
trustee could not ratify Daniel’s assignment of the certificate of purchase because a land trust can
- 18 -
No. 1-22-0070
hold only title to real property. However, as we previously held, a land trust may hold a certificate
of purchase. Furthermore, DJJ cites In re Estate of Crooks, 266 Ill. App. 3d 715 (1994), Feinberg
v. Great Atlantic & Pacific Tea Co., 131 Ill. App. 2d 1087 (1970), and Alward v. Jacob Holding
of Ontario LLC, 2019 IL App (5th) 180332, ¶ 17, for the proposition that a beneficiary of a land
trust may not step into the position of a trustee and convey title to property. However, none of
these cases address ratification. Here, we find that the circuit court properly found that Neldava
pled and proved the affirmative defense of ratification.
¶ 35 B. Count I of the Third Amended Petition
¶ 36 DJJ argues the circuit court erred in denying count I of the third amended petition as it
alleges that the tax deed is void under section 22-85 of the Property Tax Code. Section 22-85 of
the Property Tax Code 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
2016).
¶ 37 Specifically, DJJ claimed Millennium cannot legally convey a certificate of purchase into
a land trust, and therefore, Millennium’s assignment to the Land Trust was invalid and the Land
Trust did not have authority to assign the certificate to Neldava. Consequently, Millennium
remained the true holder of the certificate and failed to take and record the deed within one year
of the expiration of the redemption period in violation of section 22-85. DJJ claims that
- 19 -
No. 1-22-0070
Millennium’s failure to take and record the deed within the required time makes the certificate of
purchase void pursuant to section 22-85. Neldava asserts the assignments were valid because a
Land Trust may hold and transfer title, right, and interest in a certificate of purchase, and the Land
Trust trustee ratified all prior unauthorized transactions. Neldava further asserts the tax deed is not
void because the circuit court had jurisdiction over the case. The circuit court reviewed DJJ’s void
challenge pursuant to section 2-1401(f) of the Code of Civil Procedure. 3 A section 2-1401 petition
seeking relief based on an argument that the underlying judgment is void is reviewed de novo.
Bank of New York Mellon v. Thompson, 2013 IL App (1st) 122859-U, ¶ 12.
¶ 38 We first address DJJ’s voidness argument. Whether a judgment is void or voidable presents
a question of jurisdiction. LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27. Where jurisdiction
is lacking, any resulting judgment rendered is void and may be attacked either directly or indirectly
at any time. People v. Castleberry, 2015 IL 116916, ¶ 11. “Judgments entered in a civil proceeding
may be collaterally attacked as void only where there is a total want of jurisdiction in the court
which entered the judgment, either as to the subject matter or as to the parties.” (Internal quotation
marks omitted.) In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). A voidable judgment, in
contrast, “is one entered erroneously by a court having jurisdiction and is not subject to collateral
attack.” (Internal quotation marks omitted.) Castleberry, 2015 IL 116916, ¶ 11. When a court has
acquired jurisdiction, an order will not be rendered void merely because of an error or impropriety
in the issuing court’s determination of the law. Mitchell, 181 Ill. 2d at 174. A voidable judgment
3
Section 22-45 limits the grounds for relief that can be raised in a section 2-1401 petition
challenging an order issuing a tax deed. See 35 ILCS 200/22-45 (West 2016). However, this appellate
court found a petitioner is not required to comply with section 22-45 when void challenges are raised
under section 2-1401(f) because a void judgment may be attacked at any time. In re Application of the
Will County Collector, 2018 IL App (3d) 160659, ¶ 21; In re Application of the County Treasurer, 2012
IL App (1st) 101976, ¶ 31.
- 20 -
No. 1-22-0070
“is correctable on review [only] if a timely appeal is taken.” People v. Speed, 318 Ill. App. 3d 910,
914 (2001).
¶ 39 In this case, “ ‘[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.’ ” In re
Application for a Tax Deed, 2020 IL App (5th) 190168, ¶ 27 (quoting Vulcan Materials Co. v. Bee
Construction, 96 Ill. 2d 159, 165 (1983)). “Once the court acquires jurisdiction, it retains
jurisdiction ‘to make all necessary findings and enter all necessary orders supplemental to the
original tax sale.’ ” Id. (quoting Vulcan Materials Co., 96 Ill. 2d at 165). “Thus, while section 22-
85 purports to ‘void’ the tax deed, it is not clear that a violation of section 22-85 would divest the
court of jurisdiction, rending the order and tax deed void, and subjecting them to collateral attack
via a section 2-1401(f) petition.” Id. Here, DJJ does not challenge the circuit court’s jurisdiction.
Rather, DJJ argues that the tax deed is void because Neldava failed to comply with section 22-85
of the Property Tax Code. Pursuant to case law, the tax deed is not void. Accordingly, the circuit
court did not err in finding in favor of Neldava on count I of the third amended petition alleging
the tax deed is void under section 22-85 of the Property Tax Code.
¶ 40 C. Count II of the Third Amended Petition
¶ 41 DJJ argues the circuit court erred in denying count II of the third amended petition alleging
the court should vacate the order issuing the tax deed under section 22-45(3) of the Property Tax
Code and section 2-1401 of the Code of Civil Procedure. Section 22-45 provides:
“Tax deeds issued under Section 22-40 are incontestable except by appeal from the order
of the court directing the county clerk to issue the tax deed. However, relief from such
order may be had under Sections 2-1203 or 2-1401 of the Code of Civil Procedure in the
- 21 -
No. 1-22-0070
same manner and to the same extent as may be had under those Sections with respect to
final orders and judgments in other proceedings. 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 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 2016).
¶ 42 Specifically, DJJ claims it set forth a meritorious claim that the tax deed was procured by
fraud and exercised its due diligence in presenting its claim and filing the 2-1401 petition. DJJ
asserts, as a result, the court should issue an order directing DJJ to pay the reimbursement amount
under section 22-80 of the Property Tax Code. Neldava asserts the circuit court’s finding that DJJ
failed to provide any evidence of fraud and failed to exercise due diligence was not an abuse of
discretion.
¶ 43 First, we address the discrepancy between the parties’ standards of review. Citing People
v. Vincent, 226 Ill. 2d 1, 14 (2007), DJJ claims the circuit court’s judgment is the functional
equivalent of a dismissal for failure to state a cause of action, and therefore, we must review this
issue de novo. Neldava argues that the standard of review is an abuse of discretion.
- 22 -
No. 1-22-0070
¶ 44 Clarifying Vincent’s application of de novo review, our supreme court held “Vincent must
be viewed in its narrow context of a section 2-1401 petition that raises a purely legal challenge to
a judgment by alleging that it is void under subsection (f) of section 2-1401.” Warren County Soil
& Water Conservation District v. Walters, 2015 IL 117783, ¶ 47. However, “[i]n stark contrast to
a Vincent-type petition, a section 2-1401 petition that raises a fact-dependent challenge to a final
judgment or order must be resolved by considering the particular facts, circumstances, and equities
of the underlying case.” Id. ¶ 50. Under a fact-dependent challenge, the circuit court’s decision on
the section 2-1401 petition is reviewed for an abuse of discretion. Id. ¶ 51.
¶ 45 In this case, DJJ claims Neldava procured the tax deed by fraud because Neldava,
Millennium, and Skirp Construction concealed that Millennium, and not the Land Trust, was the
true holder of the certificate. DJJ’s claim requires us to consider the particular facts of the case,
and thus, raises a fact-dependent challenge. Therefore, we review this issue for an abuse of
discretion. An abuse of discretion occurs only when the trial court’s ruling is arbitrary, fanciful, or
unreasonable or where no reasonable person would take the view adopted by the trial court.
Seymour v. Collins, 2015 IL 118432, ¶ 41.
¶ 46 Having determined the appropriate standard of review, we now consider whether the trial
court abused its discretion when it denied count II of the third amended petition pursuant to
sections 22-45 and 2-1401. Section 22-45 states, in relevant part:
“Tax deeds issued under Section 22-40 are incontestable except by appeal from the order
of the court directing the county clerk to issue the tax deed. However, relief from such
order may be had under Sections 2-1203 or 2-1401 of the Code of Civil Procedure in the
same manner and to the same extent as may be had under those Sections with respect to
- 23 -
No. 1-22-0070
final orders and judgments in other proceedings. The grounds for relief under Section 2-
1401 shall be limited to:
***
(3) proof by clear and convincing evidence that the tax deed had been procured by
fraud or deception by the tax purchaser or his or her assignee[.]” 35 ILCS 200/22-45
(West 2016).
¶ 47 Section 2-1401 establishes a statutory procedure that allows for the vacatur of a judgment
older than 30 days or a judgment that is void. 735 ILCS 5/2-1401 (West 2016). The purpose of a
section 2-1401 petition is to alert the circuit court to facts that, if they had been known at the time,
would have precluded entry of the judgment. Lofendo v. Ozog, 118 Ill. App. 3d 237, 240-41 (1983).
“[T]o be entitled to relief from a final judgment or order under section 2-1401, the petition
must set forth specific factual allegations supporting each of the following elements: (1) the
existence of a meritorious defense; (2) due diligence in presenting this defense or claim to
the circuit court in the original action; and (3) due diligence in filing the section 2-1401
petition for relief.” Walters, 2015 IL 117783, ¶ 37.
¶ 48 To prove the existence of a meritorious defense or claim, a petitioner must allege facts that
would have prevented entry of the judgment if they had been known by the circuit court.
Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457 (2000). Due diligence
requires the 2-1401 petitioner to have a reasonable excuse for failing to act within the appropriate
time. Smith v. Airoom, Inc., 114 Ill. 2d 209, 222 (1986). The petitioner must show that his failure
to defend against the lawsuit was the result of an excusable mistake and that under the
circumstances he acted reasonably, and not negligently, when he failed to initially resist the
- 24 -
No. 1-22-0070
judgment. Id. “No bright-line rule exists for judging whether a petitioner has acted diligently.
Rather, due diligence is judged by the reasonableness of the petitioner’s conduct under all of the
circumstances.” Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 99-100 (2006). In
determining the reasonableness of the excuse offered by the petitioner, the court must consider all
the circumstances attendant upon entry of the judgment, including the conduct of the litigants and
their attorneys. Airoom, 114 Ill. 2d at 222. “[T]he quantum of proof necessary to sustain a section
2-1401 petition is a preponderance of the evidence.” Walters, 2015 IL 117783, ¶ 37.
¶ 49 Here, the circuit court held DJJ failed to state a meritorious claim because “[t]here was no
evidence of fraud presented to the Court regarding purchase or assignments of the certificate
between Neldava, Chicago Title Land Trust, or Millennium.” The court also held DJJ failed to
exercise due diligence. The court found that, throughout the tax sale proceedings, (1) DJJ’s
attorney ordered an estimate of redemption for the tax sale on February 2, 2016, and November 8,
2016, (2) Weininger sent letters on behalf of DJJ demanding the Guyon Hotel not be listed for
sale, and (3) Weininger received a letter from Macaluso stating Weininger’s client failed to redeem
the property by the redemption expiration date and advising Weininger to contact the county to
confirm the information. Based on this evidence, the trial court determined “the knowledge of the
pending tax sale proceeding must be imputed to DJJ at the very least by November of 2016, and
at the earliest by February 2016, because the law firm was necessarily aware of the tax sale
proceeding.” The court also found “the claim that DJJ and the relevant players were unaware of
the tax deed delinquency when they had been involved in the mortgage foreclosure litigation seems
incredible.”
- 25 -
No. 1-22-0070
¶ 50 We agree with the trial court that DJJ failed to allege any facts showing Neldava procured
the tax deed by fraud pursuant to section 22-45(3). “Generally, fraud in a tax deed proceeding has
been defined as a wrongful intent—an act calculated to deceive.” (Internal quotation marks
omitted.) In re Application of the County Treasurer and ex officio County Collector of Cook
County, 2015 IL App (1st) 133693, ¶ 23. This court has more broadly defined fraud in tax deed
proceedings to include “[t]he failure to inform the court of any facts that might change the court’s
ruling.” (Internal quotation marks omitted.) Id. DJJ claims the tax deed was procured by fraud
because Daniel and Pilota “concealed from the trial court that Millennium and Skirp Construction
were selling the tax lien Certificate while falsely representing to the trial court that the Land Trust
owned the Certificate.”
¶ 51 The certificate of purchase sale contract between Neldava, Millennium, and Skirp
Construction wherein Millennium and Skirp Construction are listed as the sellers of the certificate
of purchase at issue may suggest how Millennium viewed its ownership of the certificate.
However, any inference that this evidence shows Millennium intentionally concealed itself as true
holder of the certificate from the circuit court is contradicted by the evidence that the certificate
was assigned to the Land Trust. At trial, Daniel testified he directed Pilota to assign the certificate
of purchase to the Land Trust and to file a petition for tax deed on behalf of the Land Trust. Pilota
testified he assigned the certificate of purchase to the Land Trust on behalf of Millennium on
October 1, 2015. The document evincing the assignment from Millennium to the Land Trust was
admitted into evidence. Furthermore, Daniel explained why Millennium and Skirp Construction
are listed as sellers of the certificate in the sale contract. Specifically, Daniel stated, “both
Millennium Land Development Corporation and Skirp Construction, Inc., the shares of those
- 26 -
No. 1-22-0070
companies are owned by the same entity, namely the O.M.A.M.E.G.A.N. Trust, which is the
beneficiary of the Chicago Title Land Trust.” Absent any evidence of an intent to deceive the court
or failure to inform the court of any facts pertaining to the judgment, DJJ failed to state a
meritorious fraud claim.
¶ 52 Furthermore, we acknowledge DJJ filed the original complaint raising a section 2-1401
claim shortly after the court entered its order issuing the tax deed to Neldava. However, DJJ failed
to exercise due diligence in presenting the claim before the circuit court. DJJ claims Weininger
“testified that he did not recall knowing about the tax sale on the property, did not receive any
notice of the tax sale, and if he would have, he would have sent it to DJJ.” The trial evidence
undermines Weininger’s testimony. On October 28, 2015, Pilota, on behalf of the Land Trust, filed
a petition for tax deed. Weininger’s then law firm, Johnson, Blumberg & Associates, ordered an
estimate of redemption regarding the Guyon Hotel from the Cook County Clerk’s Office on
February 2, 2016. The estimate of redemption invoice references the subject tax sale and certificate
of purchase number. On November 3, 2016, after being informed of an attempted sale of the Guyon
Hotel, Weininger sent a letter to Ploszay of Altura Realty stating that Ploszay should “immediately
terminate any and all advertisements or listings on the Property for any purpose.” On November
8, 2016, Johnson Blumberg & Associates ordered an estimate of redemption. The estimate states
that the property was sold to Millennium in a scavenger sale and the final redemption date was
June 10, 2016. On May 22, 2017, after being informed of another attempted sale, Weininger sent
a letter to Pancotto of Coldwell Banker Residential stating that Pancotto should “immediately
terminate any and all advertisements or listings on the Property for any purpose.” Moreover, when
asked if he remembered reading a letter from Macaluso in 2016 stating Millennium paid the taxes
- 27 -
No. 1-22-0070
on the property and DJJ failed to meet the redemption period, Weininger responded, “Yes. I
remember it but I don’t remember like any of the other context.”
¶ 53 Hence, DJJ, through its attorney, was aware of the tax sale proceedings since February
2016 but provides no reasonable excuse for failing to act in presenting its fraud claim to the circuit
court. Therefore, we find DJJ failed to establish due diligence under section 2-1401. Because DJJ
failed to meet the requisite elements to obtain relief, we find the circuit court did not abuse its
discretion in finding in favor of Neldava on count II of the third amended petition alleging the
court should vacate the order issuing the tax deed under section 22-45(3) of the Property Tax Code
and section 2-1401 of the Code of Civil Procedure and issue an order directing DJJ to pay the
reimbursement amount under section 22-80 of the Property Tax Code.
¶ 54 IV. CONCLUSION
¶ 55 We find the circuit court did not err in denying the motion to dismiss the affirmative
defense of ratification. We further find the circuit court did not err in finding in favor of Neldava
on count I of the third amended petition because the tax deed is not void. We also find DJJ failed
to satisfy the requisite elements to obtain relief under section 2-1401 of the Code of Civil Procedure
and, consequently, section 22-45(3) of the Property Tax Code. Therefore, the circuit court did not
abuse its discretion by finding in favor of Neldava on count II of the third amended petition.
Accordingly, we affirm the circuit court’s judgment.
¶ 56 Affirmed.
- 28 -
No. 1-22-0070
In re Application of the County Treasurer & ex officio County Collector of Cook County,
2023 IL App (1st) 220070Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2015-COTD-
003154; the Hon. Maureen O. Hannon, Judge, presiding.
Attorneys Mindy S. Salyer and Amanda L. Moressi, of Salyer Law Offices,
for LLC, and Ashley W. Brandt and Emily Knight, of Tucker Ellis
Appellant: LLP, both of Chicago, for appellant.
Attorneys Terry J. Carter and Jamie L. Schmidtke, of Carter Legal Group,
for P.C., of Chicago, for appellee.
Appellee:
- 29 -