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A.P. Properties Inc. v. Goshinsky

August 10, 1998

A.P. PROPERTIES, INC., PLAINTIFF-APPELLANT,
v.
ROBERT H. GOSHINSKY, LEEANNA K. GOSHINSKY, COREY GOLDSTEIN, AND ILLINOIS REAL ESTATE OPPORTUNITY FUND I, L.L.C., DEFENDANTS-APPELLEES.



No. 97--CH--365 No. 93--TX--3

Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Justice Colwell

Honorable Emilio B. Santi, Judge, Presiding.

In re APPLICATION OF THE COUNTY TREASURER AND ex officio COUNTY COLLECTOR OF LAKE COUNTY ILLINOIS, for Judgment and Order of Sale Against Real Estate Returned Delinquent for Nonpayment of General Taxes and Special Assessment for the Year 1992 and Prior Years

(A.P. Properties, Inc., Petitioner-Appellant, v. Illinois Real Estate Opportunity Fund I, L.L.C., Respondent-Appellee).

A.P. Properties, Inc. (AP), filed a petition for a tax deed, and respondent, Illinois Real Estate Opportunity Fund I, L.L.C. (the Fund), filed a section 2--619(a)(9) motion to dismiss (735 ILCS 5/2--619(a)(9) (West 1996)). AP also filed a chancery complaint, and defendants Robert H. Goshinsky, Leeanna K. Goshinsky, Corey Goldstein, and the Fund filed a section 2--615 motion to dismiss (735 ILCS 5/2--615 (West 1996)). The circuit court of Lake County consolidated the matters and granted both motions, thereby dismissing with prejudice AP's causes of action. AP timely appealed therefrom. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1971, Kurt A. Goshinsky (Kurt) and his wife Ruth C. Goshinsky (Ruth) purchased the property commonly known as 40159 North Donald Drive in Antioch (the property). Ruth died in 1990, and Kurt died in 1993. On December 6, 1993, AP purchased the delinquent taxes on the property at the Lake County tax sale. AP set the redemption period to expire on November 29, 1996. On June 7, 1996, Leeanna K. Goshinsky (Leeanna), Kurt and Ruth's daughter, conveyed her interest in the property to her brother Robert H. Goshinsky (Robert). On November 19, 1996, Robert conveyed his interest in the property to the Fund.

Prior to Robert's conveyance to the Fund, AP filed a petition for a tax deed on July 26, 1996. AP alleged therein that it had purchased the delinquent taxes on the property at the Lake County tax sale on December 6, 1993, that the Lake County Clerk issued it a certificate of sale, and that it had extended and set the redemption period to expire on November 29, 1996. AP then prayed for the issuance of a tax deed in the event that the property was not redeemed.

On April 10, 1997, the Fund filed a section 2--619(a)(9) motion to dismiss in response to AP's petition. The Fund argued that AP failed to properly notify Robert, a claimed record title holder, of the expiration of the redemption period (see 35 ILCS 200/22--10 (West 1996)) and that the Fund had made a valid redemption of the property prior to the expiration of the redemption period. In support, the Fund alleged that on June 7, 1996, Leeanna conveyed her interest in the property to Robert by quitclaim deed. That same day, Robert recorded the quitclaim deed with the Lake County Recorder of Deeds office. AP's service list attached to its notice of the expiration of the redemption period and AP's subsequent notice by publication, however, did not explicitly include Robert.

The Fund further alleged that, on November 19, 1996, it entered into a contract with Robert to purchase the property "as is" and subject to all title defects and unpaid taxes for the net sum of $5,000. On the same day, Robert executed a warranty deed conveying the property to the Fund, and the Fund recorded the warranty deed on November 20, 1996. Immediately thereafter, the Fund paid $3,966.34 in redemption of the taxes on the property, and the Lake County Clerk issued a redemption receipt that noted redemption on November 20, 1996.

On April 21, 1997, AP filed its response to the Fund's motion. In addition to other less relevant arguments, AP argued that the Fund lacked a valid interest in the property and, therefore, the Fund could not redeem the delinquent taxes. In addition, AP argued that the failure of the Fund to file a written redemption under protest allegedly prevented it from challenging AP's petition for a tax deed.

In addition to AP's petition for a tax deed, on April 10, 1997, AP filed a chancery complaint. Therein, AP ...


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