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10/20/97 APPLICATION COUNTY TREASURER AND EX

October 20, 1997

IN RE APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, (SAFEWAY CONSTRUCTION COMPANY, PETITIONER-APPELLANT,
v.
EDWARD L. ROSEWELL, COOK COUNTY TREASURER, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County. No. VTS 951381. Honorable Francis Barth, Judge Presiding.

Released for Publication December 5, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Petitioner, Safeway Construction Company, bought various real estate parcels at a tax sale and received certificates of purchase evidencing the sale. The three-year period for the previous owners to redeem the parcels (see 35 ILCS 200/21-385 (West 1994)) expired on November 1, 1994. Petitioner then had one year from the expiration of the redemption period, until November 1, 1995, to take out and record tax deeds on the parcels, thereby obtaining title to the property. See 35 ILCS 200/22-85 (West 1994). Alternatively, petitioner could file a petition to vacate the tax sale and have the trial court declare the tax sale a "sale in error," in which case petitioner would receive a refund of the tax sale purchase price. See 35 ILCS 200/21-310 (West 1994). The failure to either record the tax deeds or have the tax sale declared a sale in error by November 1, 1995, would result in petitioner failing to obtain title to the property or receiving a refund.

On October 2, 1995, petitioner's attorney, Alan Meserow, scheduled court dates of October 23, 25, and 27, 1995, for the trial court to hear his petitions to vacate the tax sale. Meserow secured the court dates by writing in the court's "Petition to Vacate Tax Sale Book" (VTS book) his name, client, phone number, and number of petitions to be heard. On October 17, 1995, the trial court's clerk called Meserow and told him the court was deleting his reserved dates from the VTS book because Meserow had not written down the case numbers.

Meserow claims he then "scrambled to file the underlying petition so that a VTS number could be secured for purposes of reserving a court date." On October 25, 1995, Meserow filed a petition to vacate the tax sale under case number VTS 951381 and reserved the next available court date, November 22, 1995, to have his petition heard. Since the November 22 court date was more than one year beyond the redemption period, Meserow filed a motion to toll on October 27, 1995. On November 16, 1995, Meserow filed an amended motion to toll. On November 21, 1995, the trial court entered an order continuing the amended motion to toll until December 8, 1995. The November 21 order also stated that the "parties having agreed that several other cases, where Petitioner has filed like Amended Motions to Toll, involve the same issues and similar facts as the present matter, the Court's ruling as to the present matter shall apply to and govern all such other cases involving like issues and facts."

On December 15, 1995, the trial court entered orders denying the amended motion to toll and denying the underlying petition to vacate the tax sale because the one-year period had lapsed. The order stated that it applied to the following cases brought by petitioner: VTS numbers 951340, 951341, 951471, 951472, 951473, 951475, 951374, 951375, 951376, 951377, 951378, 951379, 951380, 951381, 951382, 951383, 951384, 951385, 951386, 951387, 951388, 951392, 951393, 951394, 951395, 951396, and 951370.

On January 16, 1996, petitioner filed a motion to vacate the December 15 order and to consolidate the above-stated VTS cases with case 94 CoTDS 1613. On February 1, 1996, the trial court granted the motion to consolidate and ruled that "the subject 'Petitions to Vacate Tax Sale' herein are denied, due to this Court's [December 15] ruling denying Petitioner's 'Amended Motion to Toll.'" Petitioner filed this timely appeal.

In VTS case numbers 951471, 951472, 951473, and 951475, Safeway was not the petitioner. In those cases, Penny Lane, Ltd. was the named petitioner. Penny Lane was represented by the same attorney as Safeway, but Penny Lane is not a named appellant in this appeal. Accordingly, VTS case numbers 951471, 951472, 951473, and 951475 are not properly before us, and our disposition here does not affect them.

We address the merits of petitioner's appeal. Initially, we note each party claims that the other violated Supreme Court Rule 341 (155 Ill. 2d R. 341)) by making statements unsupported by the record. We decline to impose any sanctions on either party, but we have disregarded any improper information in the briefs. Our disposition of this case is based only on information contained in the record on appeal.

Petitioner argues that the trial court erred when it denied the petitions to vacate the tax sale as sales in error because the petitions were not brought and ruled upon within one year of the expiration of the redemption period. Petitioner claims that section 13-205 of the Illinois Code of Civil Procedure (735 ILCS 5/13-205 (West 1994)) gives it five years from the expiration of the redemption period to have the tax sales declared sales in error.

We previously considered this same argument in In re Petition for Declaration of Sale in Error, 256 Ill. App. 3d 159, 195 Ill. Dec. 718, 628 N.E.2d 1182 (1994) (hereafter Petition of Dean L. Johnson), and In re Application of the County Treasurer and ex officio Collector of Cook County, 264 Ill. App. 3d 476, 637 N.E.2d 439, 201 Ill. Dec. 850 (1994). In those cases, we recognized that under section 13-205, a holder of a real estate certificate purchased at a tax sale has five years to file petitions for sales in error. Petition for Dean L. Johnson, 256 Ill. App. 3d at 161; In re Application of County Treasurer, 264 Ill. App. 3d at 479. However, we held that in addition to section 13-205, the certificate holder also must comply with section 271 of the Revenue Act (35 ILCS 205/271 (West 1992)) then in effect (now section 22-85 of the Property Tax Code (35 ILCS 200/22-85 (West 1994))). Petition for Dean L. Johnson, 256 Ill. App. 3d at 160-66; In re Application of County Treasurer, 264 Ill. App. 3d at 479. Section 22-85 explicitly states that a certificate holder must record the deed within one year from the expiration of the redemption period, otherwise the certificate of purchase is void with no right to reimbursement. 35 ILCS 200/22-85 (West 1994). We concluded that certificate holders cannot redeem their certificates by a sale in error if those certificates have already become void by the certificate holder's failure to record the deed within one year after the redemption period. Petition for Dean L. Johnson, 256 Ill. App. 3d at 163; In re Application of County Treasurer, 264 Ill. App. 3d at 479.

In other words, section 13-205's five-year statute of limitations for filing a petition for a sale in error applies only if the certificate holder records his deed within one year after the redemption period. If the certificate holder fails to so file his deed, he has only the one year after the ...


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