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In re Application of Cook County Collector

March 31, 1999

IN RE APPLICATION OF THE COOK COUNTY COLLECTOR, FOR JUDGMENT AND SALE AGAINST LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR TWO OR MORE YEARS ARE DELINQUENT PURSUANT TO SECTION 235A OF THE REVENUE ACT OF 1939, AS AMENDED PETITION OF OZIE EMANUEL AND JAMES I. AGHAYERE. VALERIE BRITTS, PETITIONER-APPELLANT,
v.
EDWARD J. ROSEWELL, COUNTY TREASURER OF COOK COUNTY, OZIE EMANUEL AND JAMES I. AGHAYERE, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Judge Buckley

Appeal from the Circuit Court of Cook County. The Honorable Bernatta D. Bush, Judge Presiding.

This is an appeal by petitioner Valerie Britts from a trial court order that denied her petition for indemnity under the provis-ions of the Illinois Property Tax Code (the Property Tax Code) (35 ILCS 200/1-1 et seq. (West 1994)). The sole issue on appeal is whether petitioner's failure to make the statutorily mandated reimbursement payments under section 22-80 of the Property Tax Code (35 ILCS 200/22-80 (West 1994)) as a prerequisite to the trial court's grant of her petition to vacate the issuance of the tax deed under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)) is fatal to her petition for indemnification under section 21-305 (35 ILCS 200/21-305 (West 1994)), which requires that petitioner be "barred or in any way precluded from bringing an action for the recovery of the property."

Statement of Facts

The facts of this case are relatively straightforward.

On November 9, 1993, the property at issue, a six-apartment building located at 6842 South Perry, Chicago, Illinois, was sold to a tax purchaser, James I. Aghayere, for the delinquent 1987-91 taxes. The property was ultimately assigned to respondents James I. Aghayere and Ozie Emanuel.

Mary Britts (petitioner's mother) and her husband, Donald Britts, acquired the property in 1989. Mary transferred her interest to Donald in April of 1993. Donald Britts transferred the property to his daughter, petitioner, by virtue of a quit-claim deed dated April 22, 1994, and recorded on April 29, 1994.

On July 17, 1995, the circuit court entered an order that directed issuance of a tax deed to respondents. On July 24, 1995, the tax deed was issued and subsequently recorded.

On November 20, 1995, petitioner filed a two-count petition. In count I, petitioner moved under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)) to have the trial court vacate the order of July 17, 1995, that directed issuance of the tax deed. In count II, petitioner requested indemnification for the fair market value of the property pursuant to section 21-305 of the Property Tax Code. 35 ILCS 200/21-305 (West 1994).

On July 8, 1996, the trial court ordered that petitioner's motion under count I, to vacate the order directing issuance of the tax deed, shall be granted provided that petitioner make certain statutorily mandated reimbursements to respondents within 90 days pursuant to the provisions of section 22-80 of the Property Tax Code. 35 ILCS 200/22-80 (West 1994). The trial court continued the matter until October 8, 1996.

Petitioner failed to make the required reimbursements to respondents. As a result, on October 8, 1996, the trial court denied petitioner's section 2-1401 motion under count I to vacate the order that directed issuance of the tax deed.

Thereafter, petitioner proceeded on count II of her petition. In this second count, petitioner requested indemnification for the fair market value of the property pursuant to section 21-305 of the Property Tax Code. 35 ILCS 200/21-305 (West 1994). On May 13, 1997, the trial court held a hearing on the indemnity petition. Petitioner and her mother, Mary Britts, appeared as witnesses. On cross-examination, petitioner was asked why she failed to make reimbursement as directed by the trial court's July 8, 1996, order. She testified that she did not have the money with which to do so and that she did not attempt to obtain funds from any other source in order to make reimbursement.

On August 19, 1997, the trial court issued an order denying the petition for indemnity. The trial court found that petitioner was not barred or otherwise precluded from bringing an action to recover her property as is required for indemnification by section 21-305 of the Property Tax Code. 35 ILCS 200/21-305 (West 1994). Petitioner now appeals.

Discussion

Petitioner asserts that the trial court misconstrued the meaning and intent of section 21-305 of the Property Tax Code (35 ILCS 200/21- 305 (West 1994)) and argues that ...


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