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Cambridge Investment Group v. First Chicago Bank of Ravenswood

September 21, 1999

IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY ILLINOIS FOR ORDER OF JUDGMENT AND SALE OF LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR THE 1990 TAX YEAR ARE DELINQUENT PURSUANT TO APPLICABLE SECTIONS OF THE REVENUE ACT OF 1939, AS AMENDED, CAMBRIDGE INVESTMENT GROUP, PETITIONER-APPELLANT,
v.
FIRST CHICAGO BANK OF RAVENSWOOD, NATIONAL BOULEVARD BANK, TRUST NO. 8368, AND SACRAMENTO CRUSHING CORPORATION, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 93 CoTD 3536 Honorable Michael J. Murphy, Judge Presiding.

The opinion of the court was delivered by: Justice Gordon

This case comes before us on an appeal from a final judgment of the Circuit Court of Cook County holding a property tax sale pursuant to the Revenue Act of 1939 was a sale in error. The court sustained the protest of respondent First Chicago Bank of Ravenswood (Bank) to the petition of Cambridge Investment Group (Cambridge) for a tax deed, and voided the sale of delinquent property taxes to Cambridge on the basis that the sale violated a statutory requirement that sales occur in consecutive order by permanent real estate index number (PIN) (see 35 ILCS 205/243 (West 1992)). *fn1 The court ordered the county clerk to pay to the "party redeeming" a refund of certain moneys that the Bank had deposited with the clerk as a redemption (of tax deficiency) under protest. Cambridge appeals, arguing that the circuit court had no jurisdiction to invalidate the sale and that even if it had jurisdiction, its decision was erroneous. The Bank counters that the appeal is moot, and the court's decision was proper. For the reasons given below, we dismiss the appeal.

FACTS

In December 1993 Cambridge filed a petition for tax deed to a parcel of property after purchasing the unpaid taxes on the land at the 1992 annual Cook County tax sale. The Bank, which held a mortgage on the property (Sacramento was the beneficiary of a trust which actually owned the property), redeemed the property under protest, contending that the proper procedures were not followed at the tax sale at which Cambridge purchased the taxes on the property. The case was tried between September and November 1994. In February 1995 the court rendered a memorandum decision denying the protest of the Bank. However, in January 1996 the court reconsidered its prior memorandum and order, and in February 1996 the court entered an order granting the Bank's motion to vacate or modify the February 1995 judgment and sustaining the Bank's protest. The following facts were adduced during the 1994 trial.

The case revolves around what occurred on March 20, 1992, during *fn2 the annual sale of delinquent taxes in Cook County. The parcels which are the subject of the instant appeal were assigned PINs 16-12-114-019 and -021. They were two of a group of seven, all of which it is undisputed were listed in the county records as being owned by an entity which was in bankruptcy. The entire group of seven was called at once, in PIN order, *fn3 on March 20. However, immediately after the auctioneer, Bob Lea, called the PIN for the last parcel of the group, he announced that the group was part of a bankruptcy estate, which the parties agree would prohibit the county from offering the taxes for sale.

Cambridge's agent, Howard Weitzman, was in attendance at the time that the auctioneer so stated, and he objected orally from the floor that the parcels were no longer part of a bankruptcy estate and could be sold. There was some variance in the testimony as to what occurred next. Weitzman and Lea both testified that Lea told Weitzman that because the parcels were in bankruptcy according to the county records, they could not be sold, and that Weitzman should talk to someone else. The auction then resumed with the next PIN, as Weitzman left the room. Other bidders at the sale (Christ Athans, Greg Berkowitz, and Steven Deely) corroborated this version of events at trial. None of these witnesses testified to any announcement from the podium to the effect that the parcels could be offered later in the day.

However, Ron Marshall, a tax sale supervisor with the Cook County Collector's office, testified that when Weitzman objected, Lea stopped the sale, and Marshall calmed Weitzman down from the auctioneer's podium, and told him from the podium in front of the other buyers that the parcels could not be offered then, that Weitzman would have to talk to the legal department, and that if he could get the situation clarified, the parcels could be offered "later." A third version of events came from Leo Keryczynsky, general counsel for the Cook County Collector's office, who testified that Marshall temporarily stopped the sale and came to ask Keryczynsky's advice as to what should be done regarding Weitzman's objection. Keryczynsky testified that he told the auctioneer to tell the buyers "that upon [Keryczynsky's] instructions, that parcel was not to be offered until [sufficient documentation] was provided to [Keryczynsky]."

At any rate, it is uncontradicted that after Weitzman objected during the auction he spoke first with Marshall, then with Keryczynsky. After speaking with the latter, Weitzman contacted an associate who obtained documents from the Bankruptcy Court and brought them to the County Building, where the auction was taking place. These documents were presented to Keryczynsky, who then authorized Marshall to authorize Lea to "reoffer" the parcels. Keryczynsky stated that "reoffer" was not necessarily an accurate term, because it implied that the parcel had already been offered for sale once.

Keryczynsky, Marshall, Lea, Weitzman, and Athans testified that the parcels were not mentioned again until after the last regular sale of the day, at which point the auctioneer announced that there would be reoffers. Two persons testified differently. Steven Deely, a bidder at the sale, testified that to the best of his recollection the parcels were not reoffered on March 20 at all. However, Deely admitted that he had no independent recollection of the March 20 sale, and his testimony was based on a document he brought with him. He also admitted that he paid closest attention to the properties he intended to bid on, and he did not intend to bid on the properties in question. Berkowitz testified that the properties were offered during the regular sale day, at the end of a break.

It is uncontradicted (except for Deely's testimony that the reoffer did not occur) that when Lea announced that the parcels would be reoffered, several of the regular bidders were present. However, no witness testified that everyone who was present when the properties were first called was present when the "reoffer" announcement was made. Only Cambridge and State Title bid on any properties in the group. Cambridge entered the only bid on the two parcels which are involved in this litigation, while State Title entered the only bid on four other parcels in the group. Because Cambridge was the sole bidder on the two parcels it purchased, it obtained the parcels at the maximum statutory penalty interest of 18% per six months. *fn4 It paid the county clerk $580,416.30 to purchase the taxes, including back taxes, interest, and penalties.

As previously noted, Cambridge petitioned the circuit court for a tax deed in December 1993 to the parcels on which it had purchased the taxes, and the Bank redeemed the taxes under protest in February and March 1994 by depositing $819,356.37 with the county clerk. The parties stipulated at trial that the Bank had an interest in the subject property sufficient to allow it "to make an effective redemption on the property." The certificate of redemption under protest which the Bank filed alleged that

"[t]he tax sale to [Cambridge], purportedly held on March 20, 1992 was actaully [sic] held on or about March 30, 1992 and such sale was not made at public sale and in consecutive order as required by Section 243 of the Revenue Code [sic] of 1939. Alternatively, if such sale was conducted in [sic] March 20, 1992 payment for the purchase was not made forthwith by [Cambridge] nor was application made to the County Clerk within 10 days after the sale for statement of general taxes due and unpaid not included in the advertisement for sale, as required by Section 247 of the Revenue Code [sic] of 1939. The tax sale from which this redemption is made is void and of no effect."

In February 1995 the circuit court denied the Bank's protest on the grounds that the Bank lacked standing to protest. However, in February 1996 the court reversed itself and sustained the protest. The court held that the statute required that parcels be offered in consecutive order, that the parcels Cambridge had purchased were not offered in consecutive order, and that this rendered the sale a "sale-in-error." The court also held that the auction at which Cambridge had made its purchase constituted a "private sale," and was a sale in error for that reason as well. The court stated in its order that "[a]s authorized in Section 21-380 of the Property Tax Code, the Court finds the sales for 1990 taxes of these properties *** to be sales in error under Section 22-45 of the Property Tax Code." The court accordingly ordered that the statutory penalty interest be returned to the "party redeeming."

On February 20, shortly after the court entered its order sustaining the Bank's protest, Sacramento Real Estate Corporation (Real Estate) filed for Chapter 11 bankruptcy in the Bankruptcy Court for the Northern District of Illinois. In re Sacramento Real Estate Corporation, No. 96--B--3992. On February 22, 1996, respondent Sacramento Crushing Corporation (Sacramento) and Sacramento Corporation (Sacramento Corp.), the parent company to Real Estate and Sacramento, followed suit, and filed their own separate Chapter 11 bankruptcy petitions. In re Sacramento Crushing Corporation, No. 96--B--4120; In re Sacramento Corporation, No. 96--B--4121. The three bankruptcy proceedings were consolidated in the bankruptcy court in May 1996. In October 1996 (while this appeal was pending), in an adversarial action between the Bank and the debtors (case No. 96--A--394) within the bankruptcy action, the bankruptcy court held that the amount refunded by the circuit court to the "party redeeming" did not belong to the Bank, but was rather the property of the debtors' bankruptcy estate. The consolidated case was dismissed in December 1996, and closed in May 1998.

On February 26, 1996, subsequent to the bankruptcy filings by the Sacramento entities, but within 30 days after the circuit court entered its February 1996 order sustaining the redemption under protest and before the bankruptcy court's October 1996 determination that the money refunded by the circuit court was the property of the debtors' estate, Cambridge filed a motion for reconsideration of the court's January 1996 memorandum and February 1996 order. ...


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