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08/03/88 Dan Vinar, v. Davenport Packing Company

August 3, 1988

DAN VINAR, PLAINTIFF-APPELLEE

v.

DAVENPORT PACKING COMPANY, A/K/A DAVENPORT PACKING COMPANY, INC., ET. AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 159, 172 Ill. App. 3d 800, 122 Ill. Dec. 787 1988.IL.1209

Appeal from the Circuit Court of Rock Island County; the Hon. Clarke C. Barnes, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and WOMBACHER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This action was brought by the purchaser of real estate at tax sale to obtain a tax deed. After a duly noticed hearing on the merits, the trial court entered an order directing the county clerk to issue a deed. Upon defendant-appellant Rudolph Lipkowitz' (Lipkowitz') motion to vacate, the trial court entered a modification of its prior order and directed the county clerk to issue a deed upon payment of real estate taxes owing for years subsequent to the year the property was sold for taxes. Defendant appeals from both of these orders. No questions are raised on the pleadings.

Certain commercial real estate belonging to Davenport Packing Company (Davenport Packing) was sold for unpaid taxes levied and assessed for 1983 and previous years. Plaintiff-appellee, Dan Vinar (Vinar), purchased the real estate at tax sale and was duly issued a tax sale certificate of purchase on December 31, 1985.

Davenport Packing is a closely held corporation and defendant-appellant Rudolph Lipkowitz is one of its shareholders.

Under section 253 of the Revenue Act of 1939, the redemption period for commercial real estate is six months. (Ill. Rev. Stat. 1985, ch. 120, par. 734.) On July 2, 1986, plaintiff's attorney filed a first notice of extension of the period of redemption with the county clerk, extending the redemption period of the real estate to December 31, 1986. Section 263 of the Revenue Act allows the tax sale purchaser to extend the period of redemption by filing a written notice with the county clerk where the real estate is located prior to the expiration of two years from the date of sale or thereafter prior to the expiration of any extended period. Ill. Rev. Stat. 1985, ch. 120, par. 744.

Plaintiff next filed a petition for tax deed. Davenport Packing moved to dismiss the petition, challenging the propriety of the purported extension of the redemption period. This motion was denied, but plaintiff subsequently caused his petition to be voluntarily dismissed without prejudice and, thus, no appeal was taken on the denial of the motion to dismiss. Plaintiff then filed a second notice of extension of the period of redemption on February 9, 1987, purportedly extending the redemption period to August 7, 1987.

On April 29, 1987, plaintiff again filed a petition for tax deed. On August 28, 1987, plaintiff and his attorney appeared at the hearing on the merits of the petition. No other interested person appeared. By order dated September 4, 1987, the trial court found, among other things, that all parties had received proper notice, that the redemption period had expired, and that plaintiff furnished the court, and filed for record, a report of the proceedings, being an affidavit in support of complaint for issuance of a tax foreclosure deed. Therefore, the court ordered the county clerk to make, execute and deliver a deed to plaintiff and also ordered that plaintiff be awarded immediate possession of the premises.

Shortly after the August 28 hearing, plaintiff caused chains and locks to be cut off of the gates on the subject premises and began removing defendant Lipkowitz' personal property from an office he maintained there. On September 4, 1987, Lipkowitz filed a motion to vacate order for issuance of tax deed and a motion for preliminary injunction. By agreement, an injunction was granted pending a hearing on the motion to vacate. At the hearing, Lipkowitz presented documentation stating that real estate taxes on the premises were owing for the years 1984, 1985 and 1986 totaling roughly $87,000 and plaintiff's attorney stipulated that the taxes for those years were unpaid. The trial court thereafter denied the motion to vacate but modified its prior order by order dated October 1, 1987. In the modified order the court found, in part, that: (1) there had been a prior tax proceeding that had involved the same litigants and subject matter and that one of the issues previously litigated was the effect of filing a notice of extension of a redemption period pursuant to statute beyond the statutory redemption period for the subject real estate, and the court therein ruled that the redemption period may be extended notwithstanding the expiration of the prior period of redemption as long as it is done before the expiration of two years; (2) the second notice of extension was filed by plaintiff after the expiration of the first extended period of redemption but prior to the expiration of two years from the date of sale and the reasoning of the court in the prior proceeding was applicable to the instant proceeding and, therefore, the redemption period was properly extended to August 7, 1987; (3) Lipkowitz received proper notice of the proceedings and that failure to receive notice from the circuit clerk by registered mail as provided by statute was not fatal; (4) Lipkowitz presented no evidence to the court as to why he failed to appear at the original hearing on August 28, 1987; (5) the period of redemption as extended expired on August 7, 1987, without the property being redeemed; (6) there were taxes for years subsequent to the sale which remain due and payable; and (7) that a transcript of the prior default proceedings was not available and no verbatim record was taken, but failure to do so did not preclude that court from directing the clerk to issue a tax deed. Therefore, the court ordered, in part, that defendant's motion to vacate was denied and that the prior order of September 4, 1987, was modified as follows: (1) the clerk shall issue a tax deed to plaintiff upon plaintiff paying all taxes which became due and payable subsequent to the sale; (2) plaintiff shall not have possession of the premises until he has been issued a tax deed; and (3) plaintiff has one year from and after the expiration of the redemption period to record the tax deed or the deed is absolutely null and void.

Lipkowitz raises the following issues on appeal: (1) whether under section 266 of the Revenue Act the petitioner for a tax deed must pay all taxes subsequent to the tax sale before the court can enter an order directing issuance of the tax deed; (2) whether under section 263 of the Revenue Act a notice of extension of redemption period may be given after the expiration of the previously extended period of redemption; and (3) whether under section 266 of the Revenue Act a petitioner ...


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