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In Re App. of County Treasurer

OPINION FILED JUNE 16, 1986.

IN RE APPLICATION OF COUNTY TREASURER (BEVERLY EPSTEIN, PETITIONER-APPELLANT,

v.

THE PEOPLE OF THE STATE OF ILLINOIS ET AL., OBJECTORS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Robert J. Dempsey, Judge, presiding.

JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 16, 1987.

Petitioner, Beverly Epstein, appeals the dismissal of her petition for tax deed for failure to comply with court-ordered discovery. For the reasons set forth below, we affirm the dismissal.

The record reveals that on June 29, 1983, attorney Bernard Allen Fried purchased property at 6200 South Ellis Avenue in Chicago at a scavenger sale conducted by the Cook County collector pursuant to section 235a of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 716a). Fried bought the property for $50. On August 9, 1983, an order confirming the sale was entered by Cook County circuit court Judge Joseph Schneider, and a certificate of purchase was thereafter issued to Fried. On August 12, 1983, Fried assigned the certificate of purchase to petitioner Epstein. On February 6, 1984, Epstein filed her petition for tax deed as the holder of the certificate of purchase. The petition was assigned to circuit court Judge Robert Dempsey.

Thereafter, on May 21, 1984, Judge Dempsey was presented with an objection to the petition filed by the treasurer and clerk of Cook County. *fn1 The objectors alleged that Fried was ineligible to purchase the property at the scavenger sale because he was "the party or the agent of the party who is responsible for the payment of the delinquent taxes" in contravention of section 235a of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 716a). The objection traced the chain of title for the property in question during the tax delinquency period. Specifically, it alleged that in August 1976 the property was conveyed to the First Church of Deliverance, which in December 1976 conveyed the property to Community Redemption Corporation. In February 1980, Community Redemption conveyed the property to Evangelist James Baker Evangelistic Association. The objection alleged that Fried was the attorney for all three religious corporations and that all of the transfers were made by quitclaim deeds prepared by Fried. Copies of the deeds were attached to the objection.

It was further alleged in the objection that Fried had powers of attorney from the officers of each of the above corporations to acquire or dispose of real property in their names. He allegedly executed conveyances in the names of the corporations by signing the officers' names without affixing his own name or disclosing that he has signed on behalf of another. Finally, it was alleged that petitioner Beverly Epstein is Fried's sister-in-law and that her attorney, Phillip Radmer, is employed by Fried's law office. Based upon these allegations, the objectors concluded that Fried obtained the certificate of purchase through "fraud, trickery, and deceit" by delivering to the county treasurer a false affidavit that he was not the party or the agent of the party who is responsible for the payment of delinquent taxes.

On June 12, 1984, Fried, as attorney for petitioner, filed a motion to deny and dismiss the objection. The motion alleged that the objection constituted an attack on the order confirming the sale of the property entered by Judge Schneider, and that Judge Dempsey therefore had no jurisdiction to hear it. On July 3, 1984, the motion was denied by Judge Dempsey.

The court set the matter for trial on September 12, 1984. On July 19, 1984, the objectors filed and served interrogatories on the petitioner. Petitioner failed to answer the interrogatories, and the objectors filed a motion to compel on September 6, 1984. The motion to compel alleged that petitioner had repeatedly ignored the objectors' oral and written requests pursuant to Supreme Court Rule 201(k) (87 Ill.2d R. 201(k)) *fn2 that their interrogatories be answered. The motion further alleged that a notice of deposition had been directed to Epstein on August 22, 1984, setting her deposition for August 30, 1984, but that counsel for petitioner refused to produce his client for the deposition.

On September 20, 1984, after a hearing on the motion to compel, the court ordered petitioner to file answers to the interrogatories on or before October 19, 1984. Petitioner failed to comply with the order and instead filed a motion for voluntary dismissal. The objectors thereafter filed a motion for sanctions. On October 26, 1984, following a hearing, the court entered an order allowing petitioner to withdraw her motion to dismiss. The court further stated in the order that "based upon the representation by counsel for petitioner that petitioner will not provide answers to discovery or otherwise comply with discovery rules," the objectors' motion for sanctions is granted and the petition is dismissed with prejudice pursuant to Supreme Court Rule 219(c)(87 Ill.2d R. 219(c)).

I

On appeal, petitioner initially argues that the objection to her petition was improperly considered by the trial court in the action for tax deed, and that it instead should have been filed pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) as a direct attack on the order confirming the sale. Section 2-1401 provides a statutory mechanism for seeking relief from final judgments more than 30 days after their entry. Petitioner fails to cite any legal authority in support of her proposition. After examining the relevant provisions of the Revenue Act, we find no merit to this argument.

Under the Revenue Act, the first matter which comes before the court with respect to a tax sale is the entry of a "judgment for sale" of the property to be sold for delinquent taxes. (Ill. Rev. Stat. 1985, ch. 120, par. 716a.) Following the tax sale, section 235a of the Revenue Act provides that the purchaser of property is to have the sale confirmed by the court. (Ill. Rev. Stat. 1985, ch. 120, par. 716a.) Section 235a further provides that upon the court's confirmation of the sale, the county clerk and the county collector shall issue to the purchaser a "certificate of purchase." However, before a certificate of purchase may be received, the purchaser is required to execute and deliver to the county clerk an affidavit that "such person has not bid upon any lot or tract of land at such sale who is the party or the agent of the party who is responsible for the payment of the delinquent taxes." Ill. Rev. Stat. 1985, ch. 120, par. 716a.

• 1 Section 266 of the Revenue Act provides that once a certificate of purchase is received, the purchaser or his assignee may file a petition for tax deed in the circuit court, praying that the court direct the county clerk to issue a tax deed if the real estate is not redeemed from the sale. (Ill. Rev. Stat. 1985, ch. 120, par. 747a.) Section 266 contemplates a summary judicial determination of the petitioner's entitlement to the tax deed; interested parties may appear and object. (Young v. Madden (1960), 20 Ill.2d 506, 170 N.E.2d 551.) At the hearing, it is the duty of the court to determine whether all conditions precedent to the issuance of a tax deed have been satisfied. (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468.) If no deed is issued and filed within one year following the expiration of the period of redemption, "the certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null and void." Ill. Rev. Stat. 1985, ch. 120, par. 752.

• 2 Here, the gravamen of the objection is that Fried was ineligible to purchase the property and thus executed a fraudulent affidavit in order to receive a certificate of purchase from the county treasurer and collector. The Revenue Act contains no requirement that an objection to the affidavit be raised prior to the trial court's confirmation of sale. To the contrary, under the provisions cited above, it is only after the confirmation of sale that the purchase is required to execute and deliver the affidavit in question to the county clerk to receive a certificate of purchase. Because the affidavit is not required under the Revenue Act ...


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