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In Re App. of Cook County Collector

OPINION FILED MAY 8, 1986.

IN RE APPLICATION OF COOK COUNTY COLLECTOR (BERNARD ALLEN FRIED, COOK COUNTY COLLECTOR, PETITIONER-APPELLANT,

v.

NAHUM ROSARIO, OBJECTOR-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Marjan Peter Staniec, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 26, 1986.

Petitioner Bernard Allen Fried, appeals from an award of attorney fees and expenses to the objector, Nahum Rosario, under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611). Petitioner contends that the award was inappropriate and excessive.

BACKGROUND

On September 19, 1975, Dusan Stevanovich and his wife, Jovanka Stevanovich, acquired the property located at 3901 West North Avenue, Chicago. On October 23, 1978, Dusan Stevanovich, by a quitclaim deed, conveyed his interest in the property to Momir Matich. His wife did not execute the quitclaim deed. On June 20, 1983, petitioner purchased the property for $425 at a scavenger sale for nonpayment of $11,095.01 in real estate taxes and received a certificate of purchase evidencing the sale (Year 1983 Certificate No. 4101). Prior to the sale, several liens and memoranda of judgments had been filed against the property. The sale was confirmed on August 9, 1983.

On September 12, 1983, Dusan Stevanovich and Jovanka Stevanovich entered into a contract to sell the property to the objector for $30,000. On October 24, 1983, petitioner extended the period of redemption from December 20, 1983, to June 8, 1984. Petitioner filed his petition for deed either on February 28, 1984, or March 9, 1984. *fn1 On or about March 7, 1984, Dusan Stevanovich met with Ed Sanchez, a real estate salesman, the objector and his attorney and stated that he had paid $5,000 to petitioner for a deed to the property which would be forthcoming after the redemption period terminated. Stevanovich showed to them a receipt for $5,000 signed by petitioner. The record reflects that on March 7, 1984, petitioner assigned his certificate of purchase to Sladjan Stevanovich, the son of Dusan and Jovanka Stevanovich. On the same date, petitioner extended the period of redemption to July 20, 1984. On July 31, 1984, the objector's attorney spoke with Jovanka Stevanovich on the telephone and asked her if she had paid $5,000 to petitioner for the deed to 3901 West North Avenue. She replied, "Oh! More than that."

On August 2, 1984, petitioner filed his application for an order directing the county clerk to issue a tax deed. In paragraph one of his affidavit in support of the application, petitioner averred that he was "duly authorized to make this Affidavit." Petitioner, however, requested issuance of a tax deed conveying the parcel of real estate to himself, not his assignee, and left blank that part of the affidavit form on which the assignment should have been indicated. Petitioner did not disclose the assignment in his application nor did he indicate that he was acting in a representative capacity.

On August 7, 1984, the objector was given leave to file his objections to petitioner's application for the issuance of a tax deed. His objections were filed on August 31, 1984. Amended objections were filed on November 7, 1984, setting for the facts discussed above. Petitioner did not file an answer. Although petitioner filed a motion to strike and dismiss the amended objections (apparently on the ground that objector lacked standing), that motion has not been included in the record on appeal.

On January 22, 1985, the objector filed a motion to strike petitioner's application for the issuance of a tax deed and to invalidate the sale of the property under the scavenger act. At the hearing on this motion, counsel for petitioner informed the court that he also represented Sladjan Stevanovich. On February 14, 1985, the court denied petitioner's motion to strike and dismiss the amended objections and allowed the objector's motion to deny and strike petitioner's petition and application for issuance of a tax deed. (It is not clear whether there was another hearing on February 14, 1985.) The court found:

"The series of transactions in this case clearly show an intent to circumvent the statutory bar of Illinois Revised Statutes, Chapter 120, Section 716a, which prohibits title owners or their agents from bidding for their property in a scavenger sale. Although it is likely that an affidavit required by Section 716a may have been executed and delivered to the County Clerk prior to the sale of the Certificate of Purchase, the Legislature clearly intended that a delinquent taxpayer [may] not benefit from the nonpayment of his taxes."

On March 15, 1985, the objector filed a motion for attorney fees and expenses under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611). Petitioner filed a response denying that there were any untrue statements in his application for issuance of a tax deed and asserting that section 2-611 does not apply to motions to dismiss. The response did not question the reasonableness of the fees sought in the motion.

Argument on the motion was heard on May 20, 1985. The court found that petitioner's affidavit in support of his application for issuance of a tax deed implied that the certificate of purchase had not been sold, assigned or transferred, thereby suggesting that petitioner was the owner of the certificate at the time he filed his application. Although prior to the hearing counsel for petitioner had obtained voluminous documents from the objector's counsel relating to the motion for fees, he declined the court's offer to continue the case to respond further in writing and simply characterized the statement of time and services in the motion as "ridiculous."

On July 2, 1985, the court ordered petitioner to pay $9,325 in attorney fees and $484.30 in expenses to the objector. On August 1, 1985, petitioner filed a motion to vacate the order entered on July 2, 1985. Petitioner disputed both the award and the amount of fees. Argument was heard on August 26, 1985. On September 11, 1985, the court denied the motion to vacate and requested counsel for the objector to submit an itemization for his fees for five days listed in the motion for fees. A supplemental itemization was filed on September 20, 1985. A brief hearing was conducted on October 1, 1985. At that hearing, counsel for petitioner was given an opportunity to comment on the amount of fees shown in the supplemental itemization. Although counsel questioned all of the fees generally and certain amounts specifically, he informed the court that they were "just fighting over straws" and urged ...


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