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In re Application of County Treasurer

June 18, 1999

IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, ILLINOIS FOR ORDER OF JUDGMENT AND SALE OF LANDS AND LOTS UPON WHICH ALL OR PART OF THE GENERAL TAXES FOR TWO OR MORE YEARS ARE DELINQUENT, PETITION OF FLEISHMAN ASSOCIATES FOR TAX DEED, IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, ILLINOIS FOR ORDER OF JUDGMENT AND SALE OF LANDS AND LOTS UPON WHICH ALL OR PART OF THE GENERAL TAXES FOR TWO OR MORE YEARS ARE DELINQUENT, PETITION OF FITZ CORPORATION FOR TAX DEED.


The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Raymond L. Jagielski, Judge Presiding.

Appeal from the Circuit Court of Cook County. Honorable James F. Henry, Judge Presiding.

the opinion of the court:

The Cook County Treasurer and ex-officio County Collector (Collector) appeals the circuit court's award of the refund of costs to petitioners-appellees Fleishman Associates (Fleishman) and Fitz Corporation (Fitz) pursuant to section 22-50 of the Property Tax Code (35 ILCS 200/22-50 (West 1996)), in connection with their purchase of tax certificates at Cook County Scavenger Tax Sales. Fleishman and Fitz had petitioned the court for the refunds, along with the refunds of the purchase prices paid under section 22-50 where, despite their alleged "bona fide attempts" to satisfy the statutory notice requirements for issuance of tax deeds, they failed to meet those requirements due to their own deficient submissions.

The issue presented by this appeal is whether the circuit court erred in awarding petitioners a refund of their costs in addition to a refund of the purchase price, pursuant to section 22-50 of the Property Tax Code (Code) (35 ILCS 200/22-50 (West 1996) (section 22-50)).

The undisputed facts establish that on August 8, 1995, at the 1995 Scavenger Tax Sale, the Collector sold the 1983-1993 delinquent real estate taxes on certain property identified by a permanent index number to Fleishman. On March 26, 1996, Fleishman filed a petition for tax deed, but did not comply with the provisions of the Code, which required service on all parties who had an interest in the real estate represented by the taxes purchased. Consequently, on July 30, 1997, Fleishman petitioned the circuit court, pursuant to section 22-50 of the Code (35 ILCS 200/22-50 (West 1996)), for a refund of the purchase price of the tax sale, along with costs posted to the Collector's Tax, Judgment, Sale, Redemption, and Forfeiture Records (posted costs). The petition was based on the fact that Fleishman allegedly had made a bona fide attempt to satisfy the statutory notice requirements for issuance of a tax deed, but due to its own conduct failed to meet those requirements.

The Collector, among other things, objected to the refund of the posted costs, asserting that the plain language of section 22-50 did not provide for such refund, but only for the refund of the purchase price, as in the case of sales in error. The Collector further argued that a review of the sale in error provisions of the Code, particularly section 21-315 (35 ILCS 200/ 21-315 (West 1996) (section 21-315)), revealed that no costs were to be refunded under section 22-50, as section 21-315 expressly limited the refund of costs to those cases where a sale was declared in error pursuant to sections 21-310 (35 ILCS 200/21-310 (West 1996) (section 21-310)) and 22-35 (35 ILCS 200/22-35 (West 1996) (section 22-35)) of the Code. The Collector also argued that no provision was made for the refund of costs from the sale in error fund pursuant to section 21-330 of the Code (35 ILCS 200/21-330 (West 1996) (section 21-330)). The Collector concluded that because a refund of the purchase price under section 22-50 was not in fact a sale in error, and not within the proscriptions of sections 21-315 and 21-330, no costs should be refunded.

On October 15, 1997, following a hearing, the circuit court refused the entry of an order for tax deed due to Fleishman's failure to comply with the statutory requirements for issuance of a tax deed. The court further determined that since Fleishman made a bona fide attempt to comply with the statutory requirements, pursuant to section 22-50, it was entitled to a refund of the purchase price of its tax sale, along with the posted costs in the amount of $892.10. The court then ordered that the refund of costs be paid out of the Sale in Error Fund, as created by section 21-330 of the Code.

In reaching its decision to allow the award of costs, the circuit court reviewed the sale in error provisions of the Code and determined that section 21-315 should be read in conjunction with section 22-50. More specifically, the court determined that section 21-315 provided for a refund of costs where a sale was declared to be in error, but limited the circumstances under which interest would be awarded. Since section 21-315 provided for the refund of costs where a sale was to be declared in error, and section 22-50 stated that the purchase price should be refunded as in the case of a sale in error, the court awarded Fleishman its posted costs. The nature of the costs for which Fleishman requested a refund were those incurred in preparation of going to deed, namely, notice, service and filing fees paid to the Cook County Clerk, Cook County Sheriff, and Clerk of the Circuit Court of Cook County, respectively, publication and mailing costs, and fees paid to the Cook County Recorder of Deeds.

On November 10, 1997, the Collector moved the circuit court to reconsider its award of costs, arguing error on two grounds. First, the Collector argued that the court misconstrued the clear mandate of section 21-315, that costs were to be refunded only in the case of a sale in error arising under section 21-310 and 22-35 of the Code. Second, the Collector argued that in ordering costs to be refunded from the Sale in Error Fund, the court disregarded the plain language of section 21-330, which provided that costs paid from that fund be made only in those circumstances where a sale has been declared in error under section 21-310. On February 26, 1998, following a hearing, the court denied the motion to reconsider.On October 4, 1993, at the 1993 Scavenger Tax Sale, the Collector sold the 1990-1991 delinquent real estate taxes on four properties identified by permanent index numbers to Fitz. On February 28, 1996, Fitz filed a petition for tax deed, but did not comply with the provisions of the Code in serving all parties who had an interest in the real estate represented by the taxes purchased.

Therefore, on July 8, 1997, Fitz petitioned the circuit court (other than the court presiding in Fleishman) pursuant to section 22-50 of the Code for a refund of the purchase price of the tax sales, along with costs posted to the Collector's Tax, Judgment, Sale, Redemption and Forfeiture Records or Judgment Book. Fitz's alleged basis for the petition was that it had made a bona fide attempt to satisfy the statutory notice requirements for issuance of a tax deed, but due to its own conduct, failed to meet those requirements. As in the Fleishman case, the Collector objected to a refund of the posted costs based upon his interpretation of section 22-50.

On October 14, 1997, the circuit court refused the entry of an order for tax deed due to Fitz's failure to comply with the statutory requirements for issuance of a tax deed. The court further determined that as Fitz made a bona fide effort to comply with the statutory requirements, it was entitled to a section 22-50 refund of the purchase price of its tax sales, along with posted costs in the amount of $1,213.52. As in the Fleishman matter, the court then ordered that the refund of costs be paid out of the Sale in Error Fund, created by section 21-330. The costs for which Fitz requested a refund also were those incurred in preparation of going to deed, namely, notice, service and filing fees paid to the Cook County Clerk, Cook County Sheriff, and Clerk of the Circuit Court of Cook County, respectively, and publication and mailing costs.

On November 10, 1997, the Collector moved the circuit court to reconsider its award of costs, arguing the same grounds of error as in the Fleishman case. On March 3, 1998, after a hearing, the court, following the first court's ruling in the Fleishman case, denied the Collector's motion to reconsider.

Upon the Collector's motion, the above causes were consolidated for purposes of appeal since both cases raise the same issue. Fleishman and Fitz will be referred to collectively as petitioners. Because the question with which this court is presented, whether the circuit court erred in awarding the petitioners a refund of their posted costs under section 22-50, involves statutory construction, a question of law, this court's ...


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