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In Re Application of Cook Cty Treasurer

OPINION FILED OCTOBER 31, 1983.

IN RE APPLICATION OF THE COOK COUNTY TREASURER AND EX-OFFICIO COLLECTOR — (JOYCE VISO, PETITIONER-APPELLEE,

v.

EDWARD J. ROSEWELL, COOK COUNTY TREASURER, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Martin F. Brodkin, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 5, 1983.

Joyce Viso (petitioner) was evicted from her home after issuance of a tax deed. Petitioner filed an amended petition for indemnity from the County Treasurer of Cook County as Trustee of the Indemnity Fund (respondent), which the trial court allowed. (Ill. Rev. Stat. 1981, ch. 120, par. 728a(4).) The respondent has appealed.

Petitioner failed to pay a special assessment for 1976. As a result, petitioner's property was sold at a January 1978 tax sale. The period of redemption was extended to July 25, 1980.

In July of 1979, the Madison Bank and Trust Company of Chicago, which held the mortgage on petitioner's property, received notice of the tax sale. The bank immediately forwarded a cashier's check to the county clerk and attempted to redeem the property.

The check was returned by the county clerk with a letter stating the property had already been redeemed on July 23, 1979. The clerk's letter was based on an entry in his judgment records which was later discovered to be in error. A redemption intended for a different parcel of property had been credited to petitioner's property. Although the error was subsequently discovered and corrected, no notice of this action was given to the bank, or to petitioner.

In March of 1980, petitioner received a "Take Notice" from the tax purchaser informing her that the property had been sold for the 1976 special assessment and that petitioner had until July 25, 1980, to redeem. In June of 1980, petitioner attempted to redeem. Petitioner went to the county clerk's office and tendered her personal check. She was told to return with cash or a cashier's check. The notice received by petitioner in March 1980 made no mention of the necessity of paying only with cash or a cashier's check. There is no evidence that petitioner was told to return by July 25, 1980.

On August 8, 1980, petitioner returned to the county clerk's office with the necessary cash. The money petitioner paid was credited to the delinquent 1977 special assessment. The 1976 special assessment remained unredeemed. Accordingly, a tax deed was issued on November 14, 1980.

After a hearing, the trial court entered an order finding petitioner to be equitably entitled to just compensation pursuant to section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 728a).

Respondent contends petitioner did not prove she was equitably entitled to compensation; the finding by the trial court regarding value of the property is not supported by the evidence; and the trial court erred in refusing to deduct the unpaid mortgage on the property from the amount awarded to petitioner. Petitioner contends the finding of the trial court awarding compensation is in accordance with the evidence; the evidence of value of the property is sufficient; and the order appealed from did in fact deduct the amount of the mortgage from the award in accordance with the pertinent statute.

I

The relevant statute provides in pertinent part (Ill. Rev. Stat. 1981, ch. 120, par. 728a):

"(4) Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner of property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.

(5) * * *. The Court shall liberally construe this Section to provide compensation wherever in the discretion of the Court the equities warrant ...


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