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06/13/94 MATTER APPLICATION COUNTY TREASURER AND

June 13, 1994

IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, ILLINOIS; FOR JUDGMENT AND SALE OF REAL ESTATE IN CONNECTION WITH THE TAX SALE CONDUCTED FOR DELINQUENT TAXES FOR THE YEAR: 1985; FIRST CENTRAL CORPORATION, PETITIONER-APPELLANT.
v.
EDWARD J. ROSEWELL, COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, RESPONDENT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MARTIN BRODKIN, CURTIS HEASTON and STEPHEN YATES, JUDGES PRESIDING.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This consolidated appeal involves three separate petitions to vacate tax sales as "sales in error" brought by petitioner First Central Corporation ("First Central"), pursuant to section 260 of the Revenue Act of 1939, 35 ILCS 205/1 et seq. (West 1992) ("Act"). In each case, respondentCounty Treasurer and Ex-Officio County Collector of Cook County Edward J. Rosewell ("the Collector") objected, claiming that First Central failed to file its petitions within one year after the period of redemption in accordance with section 271 of the Act (35 ILCS 205/271 (West 1992)). The trial court denied all of First Central's petitions; First Central now appeals.

Although First Central failed to include a "Statement of Facts" in its brief, its characterization of the facts in its statement of the "Nature of the Action" is supported by the Collectors "Statement of Facts" and the record on appeal. These statements and the record reveal certain facts common to all three cases. In each case, First Central purchased property in the 1985 Annual Tax Sale conducted by the Collector. In each case, the redemption period was extended and First Central filed tax deed petitions. However, in each case, no redemption from the tax sale occurred.

The relevant dates for each case may be summarized by the appellate court docket numbers. In case number 92-0187, First Central purchased the parcels on 12/9/86, filed a tax deed petition on 6/6/89, and the redemption period was extended to 10/19/89. In case numbers 92-0799 and 92-0800, First Central purchased the parcels on 2/3/87, filed tax deed petitions on 10/31/88, and the redemption period for the parcels was extended to 3/16/89.

First Central subsequently filed petitions to vacate tax sales as "sales in error," pursuant to section 260 of the Act, which provides in relevant part as follows:

"Whenever upon application of the county collector, tax purchaser or a municipality which owns or has owned the property ordered sold it shall be made to appear to the satisfaction of the court which ordered the property sold * * * solely upon application of the tax purchaser that the improvements upon property sold have been substantially destroyed or rendered uninhabitable or otherwise unfit for occupancy subsequent to the tax sale and prior to the issuance of a tax deed * * * the court which ordered the property sold shall declare such sale to be a sale in error * * * and the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid, pay any interest and costs as may be ordered pursuant to Section 260.1 of this Act, and cancel such certificate so far as it relates to such tract or lots." (35 ILCS 205/260 (West 1992).)

First Central alleged a substantial destruction of improvements to the property occurred in each case. In case number 92-0187, First Central filed its petition to vacate on 10/4/91, almost two years after the redemption period. In case number 92-0799, First Central filed its petition to vacate on 5/31/91, approximately 26 months after the redemption period. In case number 92-0800, First Central filed its petition to vacate on 9/4/91, approximately 31 months after the redemption period.

In each case, the Collector objected, claiming that First Central failed to file its petitions within one year after the period of redemption in accordance with section 271 of the Act, which provides in relevant part as follows:

"Unless the holder of the certificate for real estate purchased at any tax sale under this Act takes out the deed in the time provided by law, and files the same for record within one year from and after the time of redemption expires, 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 with no right to reimbursement. If the holder of such certificate is prevented from obtaining such deed by injunction or order of any court, or by the refusal or inability of any court to act upon the application for a tax deed, or by the refusal of the clerk to execute the same, the time he or she is so prevented shall be excluded from computation of such time. * * *" (35 ILCS 205/271 (West 1992).)

In each case, the trial courts denied First Central's petitions, ruling that section 271 rendered First Central's certificates null and void. First Central filed a timely Notice of Appeal for each case; this court consolidated the cases for review.

On appeal, First Central contends that the trial courts erred in applying section 271 of the Act to deny petitions to vacate based on section 260 of the Act. First Central argues that these cases should be governed by the general five year statute of limitations set forth in section 13-205 of the Illinois Code of Civil Procedure (735 ILCS 5/13-205 (West 1992)) ("Code").

This argument was addressed by this court in In re Petition for Declaration of Sale in Error (3d Dist. February 2, 1994), Nos. 3-93-0350, 3-93-0353, 3-93-0354, 3-93-0356, 3-93-0357 (consolidated) (hereinafter Petition of Dean L. Johnson). In that case, the trial court had granted a number of petitions for sales in error. The appellate court held that: (1) the statute of limitations was five years; (2) section 271 applies in section 260 cases; (3) tax purchasers are not required to engage in the process of acquiring a tax deed while pursuing a sale in error; and (4) the trial court ...


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