Appeal from the Circuit Court of Cook County. Honorable Martin Brodkin, Judge Presiding.
As Corrected April 15, 1996.
The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Buckley, J., concur.
The opinion of the court was delivered by: Braden
The Honorable Justice BRADEN delivered the opinion of the court:
Petitioner, D.S. Associates, appeals from (1) an October 15, 1992, order by the circuit court of Cook County, granting summary judgment in favor of respondent, Commercial Credit Loans, Inc. (Commercial Credit); (2) a January 12, 1993, order denying petitioner's' motion for reconsideration; and (3) a March 4, 1993, order vacating the trial court's December 10, 1991, order and declaring the issued tax deed null and void.
Petitioner argues that the trial court erroneously concluded that service of a take notice upon Commercial Credit was improper and that absence of fraud by the petitioner precluded Commercial Credit from receiving section 2-1401 relief. 735 ILCS 5/2-1401 (West 1994).
Commercial Credit, an Illinois corporation, was the holder of a mortgage dated March 23, 1988, between Joan A. Hawthorne, mortgagor, and Commercial Credit, mortgagee. This mortgage was recorded on March 24, 1988, with the Cook County recorder of deeds as document number 88122185 and was secured by a property commonly known as 11729 South Justine, Chicago, Illinois (property).
On May 3, 1991, petitioner filed a petition for a tax deed, alleging it had purchased the taxes for the property. The record indicates that the sheriff of Cook County subsequently mailed the take notice to Commercial Credit notifying it that the property had been sold for delinquent taxes. This notice was mailed to Commercial Credit, via certified mail, at 679 North Cass Avenue, Westmont, Illinois. This address was obtained from a copy of the mortgage for the subject property. C.M. Forster signed for the certified mailing on behalf of Commercial Credit. The record does not indicate whether C.M. Forster was an agent, employee, officer, or registered agent of Commercial Credit. Petitioner subsequently published statutory notice for three consecutive days in the Chicago Law Bulletin.
On October 25, 1991, petitioner filed an application for an order directing the county clerk to issue a tax deed. In support of its application, petitioner attached an affidavit from its attorney, Dewey D. Suster (Suster), in which he stated the following:
"Commercial Credit Loans, Inc. under Mortgage Recorded as Doc. #88122185, was not personally served with a copy of the Notice of the Expiration of the Period of Redemption by the Sheriff of Cook County Illinois inasmuch as it was not located in Cook County, Illinois."
"In lieu thereof, the Sheriff of Cook County, Illinois caused a copy of the Notice of the Expiration of the Period of Redemption to be sent within the Notice Serving Period by Certified Mail - Return Receipt Requested to Commercial Credit Loans, Inc. at 679 North Cass Avenue, Westmont, Illinois, on May 6, 1991 by Certified Mailing Number P-430-065-839."
The trial court subsequently entered an order on December 10, 1991, directing the county clerk to issue ...