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06/30/94 MATTER APPLICATION COUNTY COLLECTOR FOR

June 30, 1994

IN THE MATTER OF THE APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1985 AND PRIOR YEARS. R. HUFFMAN, PETITIONER-APPELLANT,
v.
DAVID KLOPFER, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Dorothy K. Kinnaird, Judge Presiding.

Cahill, Hoffman, Johnson

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

We address a matter of statutory construction raised by the Illinois mailing statute, Ill. Rev. Stat. 1989, ch. 1, par. 1026. The respondent, at a hearing on a motion to expunge a tax redemption, testified that the envelope postmark on a redemption of the tax-delinquent property was wrong and that the redemption documents were mailed before the deadline. The trial court agreed. Petitioner bought the property at a county tax sale and contends on appeal that the trial court misinterpreted the Illinois mailing statute and that we should declare the redemption void. We agree and reverse.

Gerhardt and Audrey Damrau owned and lived in a house in Chicago. They did not pay their 1985 real estate taxes. At a tax sale on February 12, 1987, their property was put up for sale. The petitioner, R. Huffman, successfully bid on the property. Under the Illinois redemption statute, Ill. Rev. Stat. 1989, ch. 120, par. 734, property can be redeemed within 2 1/2 years of the sale. The deadline for the Damraus was August 14, 1989. Huffman filed a petition for a tax deed in the circuit court of Cook County on April 14, 1989, seeking conveyance of the Damrau property if it was not redeemed by August 14.

The respondent David Klopfer appeared at the Damrau home at about 8 p.m. on Monday, August 14, 1989. Klopfer did not know Mr. and Mrs. Damrau. He learned of the tax sale through a notice published in a local newspaper. He appeared at their home with several legal documents: a warranty deed for conveyance of the property, an estimate of redemption costs prepared by the county clerk, and an option for repurchase of the property.

Klopfer made the following offer to Mr. and Mrs. Damrau: if they immediately conveyed the property to him, he would pay the redemption cost that evening. In exchange, he offered them the right to re-purchase the property from him by December 31, 1989, for $9,000, roughly twice the redemption amount. Mr. and Mrs. Damrau agreed. A warranty deed was executed, conveying the property to Steven Levin, Klopfer's business partner. The parties also signed the re-purchase agreement.

According to Klopfer, he mailed the redemption documents at about 10 p.m. that evening by certified mail. The county clerk received the redemption on August 18, 1989, deposited the funds, and later issued a refund to Klopfer for an overpayment.

On September 25, 1989, Huffman filed a motion to expunge redemption, alleging that it was not timely filed.

An evidentiary hearing was held on October 23, 1992. Klopfer testified that he went to the Irving Park branch of the Chicago post office at about 10 p.m. on the evening of August 14, 1989. The branch was open 24 hours a day. He placed a redemption estimate and two certified checks, one for $1,000 and one for $3,000, into an envelope. The envelope was addressed to the county clerk. He filled out a return card, then went to a clerk and paid for the envelope to be sent by certified mail. He told the clerk to postmark the envelope and mail it that day. Klopfer then left the post office. He later received a refund from the county clerk for overpaying the redemption amount. Klopfer called no other witnesses.

The mailing envelope was offered in evidence. It bears three dated stamps. The postal meter strip is dated August 14, 1989, and bears the meter number 3324057, the number of the machine located at the Irving Park branch. The cancellation mark, commonly referred to as the postmark, is dated August 16, 1989. The county clerk's "received stamp" is dated August 18, 1989.

Huffman presented three witnesses, including himself. Bill Vaselopolus, an employee at the county clerk's office, testified that tax redemptions are stamped "received" within a few hours of arriving in the clerk's office. He further testified that if the date on the postal meter strip is different from the postmark date, the clerk's office adopts the postmark date to determine if the deadline is met. If the postmark date is beyond the deadline date, the clerk's office returns the redemption documents and payment to the sender.

After examining the envelope in this case, Mr. Vaselopolus testified that the clerk's office accepted Klopfer's redemption in violation of office policy. He said again that the controlling date on the envelope was the postmark date of August 16, 1989. He testified that because the deadline for redemption of the subject property was August 14, the office should not have accepted the redemption.

Huffman then called Donald Clark, a 14-year employee of the United States Post Office in Chicago. Clark was familiar with the general practices and procedures of the post offices in the Chicago area in August of 1989. Clark testified that the post office used meters which were essentially the same as those owned or rented by the public. Dates can be freely changed on these machines. Clark testified that it cannot be determined from a meter strip whether it is generated by a post office meter or one privately owned or rented. He also testified that a ...


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