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04/03/96 APPLICATION LAKE COUNTY COLLECTOR v.

April 3, 1996

IN RE APPLICATION OF LAKE COUNTY COLLECTOR, PETITION OF GOLDMAN OR PIERSMA, AGENT FOR TAX DEED (FIRST INDIANA BANK, PETITIONER-APPELLEE,
v.
GOLDMAN OR PIERSMA, AGENT, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Lake County. No. 90-TX-4. Honorable David M. Hall, Judge, Presiding.

Petition for Rehearing Denied May 24, 1996. Released for Publication May 24, 1996. As Corrected May 24, 1996.

The Honorable Justice Thomas delivered the opinion of the court: Mclaren, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

The petitioner, First Indiana Bank (Bank), filed a motion pursuant to section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1994)) to set aside a tax deed that had been issued to the respondent, Goldman or Piersma, agent (hereinafter Goldman). The Bank alleged that the deed was obtained fraudulently and in violation of a federal bankruptcy court's automatic stay. Goldman filed a motion to dismiss, and the Bank filed a motion for summary judgment. The trial court granted the Bank's motions and vacated the tax deed. In so doing, the court found that Goldman named the wrong party as owner of the property and violated the automatic stay of the bankruptcy court. The court subsequently ordered the Bank to pay Goldman $41,831.23 in costs pursuant to section 270 of the Revenue Act of 1939 (35 ILCS 205/270 (West 1992)). Goldman appeals.

The record reveals that on September 7, 1988, Dwayne and Elaine Schiefelbein owned a parcel of real estate located in Kildeer, Illinois. On that same date, the couple executed and delivered a promissory note for $250,000 to Yegen Equity Loan Corporation (Yegen). To secure the note, the Schiefelbeins also executed a mortgage, which they delivered to Yegen. Yegen then assigned its interest in the note and mortgage to the Bank.

On December 11, 1990, Goldman purchased the delinquent real estate taxes on the property and received a certificate of purchase. The redemption period was scheduled to expire on December 11, 1992. On September 15, 1992, the Schiefelbeins filed for bankruptcy. In the bankruptcy proceeding, the Kildeer property was listed as the Schiefelbeins' residence and as one of their assets in which creditors held a secured claim. On March 2, 1993, the bankruptcy court lifted the automatic stay against the property for the limited purpose of allowing the Bank to liquidate its interest in the real estate and to proceed with a foreclosure. Thereafter, the Bank proceeded to foreclose on the property and obtained a sheriff's deed on October 27, 1993.

On June 9, 1993, Goldman filed a notice to extend the period to redeem until November 18, 1993. On June 18, 1993, Goldman filed a petition for an order directing the issuance of a tax deed. Notice of the petition was sent to various parties, including the Bank. However, Goldman did not send notice to the bankruptcy trustee. The Schiefelbeins received a discharge in bankruptcy on May 5, 1993, but the bankruptcy case was not closed until July 15, 1993.

The property in question was not redeemed by November 18, 1993. On November 23, 1993, Goldman filed a supplemental petition requesting an order directing the issuance of a tax deed. Notice of the supplemental petition was not given. A hearing on the petition for tax deed was held on November 23, 1993. The Bank did not appear at that hearing. Goldman's attorney did not mention that the petitioner Bank was the true owner of the property at the time of the hearing. Instead, the attorney stated that the record owner was the First National Bank of Des Plaines. On December 3, 1993, the court issued a tax deed to Goldman.

On March 11, 1993, the Bank filed a section 2--1401 petition to vacate the order issuing a tax deed. Goldman filed a motion to dismiss the Bank's motion, and the Bank subsequently filed a motion for summary judgment. On August 17, 1994, the trial court entered an order: (1) denying Goldman's motion to dismiss; and (2) granting the Bank's motions to vacate the tax deed and for summary judgment. In so doing, the court found that (1) Goldman named the wrong party as owner and did not give proper notice to the Bank; (2) Goldman violated the automatic stay of the bankruptcy court; (3) Goldman failed to give the required notice to the Bank in its capacity as owner; (4) Goldman fraudulently procured the tax deed by failing to give proper notice and naming the wrong party as owner; (5) Goldman should have known of the Bank's actual interest at the time of application based on documents in Goldman's possession; and (6) the Bank acted diligently in pursuing its rights.

On September 15, 1994, Goldman filed a motion to recover the $41,831.23 in costs it was entitled to by statute (35 ILCS 250/270 (West 1992)) and asked the court to enter an order making the August 17, 1994, order final and appealable. On December 30, 1994, the trial court entered an order finding that the Bank had paid Goldman the statutory costs and that there was no just reason to delay enforcement or appeal of its August 17, 1994, order vacating the tax deed. On that same day, Goldman filed a motion requesting that the trial court stay enforcement of its order pending appeal pursuant to Supreme Court Rule 305(b) (134 Ill. 2d R. 305(b)). The trial court denied the motion.

On January 19, 1995, Goldman filed a motion to reconsider the August 17, 1994, order. The trial court denied the motion to reconsider on April 19, 1995. In denying the motion, the trial court addressed the merits and then concluded that it did not have jurisdiction because it had already decided a post-trial motion on December 30, 1994. On May 18, 1995, Goldman filed a notice of appeal from the trial court's orders entered on August 17, 1994, and December 30, 1994.

As a preliminary matter, we note that the Bank has filed a motion to dismiss Goldman's appeal for lack of jurisdiction. The Bank contends that Goldman filed a post-trial motion on December 30, 1994, which was denied on that same day. The Bank contends that because Goldman did not file a notice of appeal within 30 days from December 30, 1994, this court lacks jurisdiction. The Bank further contends that this court is without jurisdiction because Goldman did not appeal from the April 19, 1994, order in which the court denied Goldman's motion to reconsider and found that it lacked jurisdiction.

We find both of the Bank's arguments as to lack of jurisdiction to be without merit. Supreme ...


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