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Ex Sites, L.L.C. v. First Union Bank of North Carolina

April 25, 2001

IN THE MATTER OF THE APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1995 AND PRIOR YEARS
EX SITES, L.L.C., PETITIONER FOR TAX DEED-APPELLEE,
v.
FIRST UNION BANK OF NORTH CAROLINA, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Justice Burke

(NUNC PRO TUNC February 14, 2001)

Appeal from the Circuit Court of Cook County. Honorable Michael Murphy, Judge Presiding.

Respondent, First Union Bank of North Carolina, now known as First Union Mortgage Corporation, appeals from the denial of its motion to vacate an order of the circuit court issuing a tax deed to petitioner, Ex Sites, L.L.C., for property located at 9609 South Wentworth Avenue in Chicago. Respondent contends on appeal that the tax deed was invalid because an occupant of the property, Tanya Haley, was not served with notice of the expiration of the period of redemption. We find that Tanya was not an occupant of the property for the purpose of service under the Property Tax Code (Code) (35 ILCS 200/1--1 et seq. (West 1998)) and, therefore, affirm the circuit court's order.

William Haley, Tanya's father, purchased the property in 1990 with his wife Mavis, now deceased, and entered into a mortgage that was assigned to respondent in 1996. In April 1996, Mutual Fidelity received a certificate of purchase for the 1994 taxes on the property and subsequently assigned its interest to National Indemnity Corporation, which paid taxes for the years 1995 through the first installment of 1998 and petitioned for a tax deed. Respondent was served by certified mail on October 23, 1998. William Haley was personally served with notice on November 19, 1998. The period of redemption expired on February 23, 1999. Ex Sites, L.L.C., was subsequently substituted as petitioner. On September 1, 1999, the circuit court issued a tax deed conveying the property to petitioner.

On September 30, 1999, respondent filed a motion to vacate the tax deed (735 ILCS 5/2--1203 (West 1998)), alleging that petitioner did not comply with mandatory provisions of the Code requiring that occupants be given notice of the sale and the date of the expiration of the period of redemption (35 ILCS 200/22--5, 22--10 (West 1998)). Respondent attached Tanya's affidavit stating she had permanently resided at 9609 South Wentworth since 1991 and had not been served with any notices of the tax sale proceedings.

A hearing was held on February 25, 2000, on the motion to vacate. Tanya testified that she was 30 years old and had resided at 9609 South Wentworth since January 1991. She currently lived there with her father and brother. She was not obligated on the mortgage, but she said she helped her father with bills, she received mail at the address, and her name was posted at the door.

On cross-examination, Tanya testified that she saw the notice, which her father received on November 19, 1998, stating the taxes had been sold and showing the date of the expiration of the period of redemption. The notice directed William to go to the office of the Cook County Clerk for further information. Tanya asked her father what they had to do about it, and he answered "we would have to take care of it." Her father went to the county clerk's office and obtained the estimate of redemption (approximately $6,000). William showed Tanya the estimate of redemption, which also stated the date by which it must be paid. On September 19 and October 8, 1998, when petitioner inspected the property, Tanya was away at work from 6 a.m. to 2 p.m.

Howard Berland, an attorney for National Indemnity Corporation, who supervised paralegals to ensure due diligence in locating owners and occupants of property and reviewed documents for tax deed proceedings, testified as follows. The Haines Directory for the years 1997, 1998, and 1999 disclosed no listed telephone number at 9609 South Wentworth Avenue. In addition, Tanya Haley was not listed in the Chicago telephone directory. A voters registration list showed William Haley as the only registered voter at 9609 South Wentworth Avenue. A title search from Chicago Title & Trust Company disclosed a warranty deed, recorded September 1, 1990, vesting title in William and Mavis Haley. Only William and Mavis Haley's names were disclosed through a judgment search. Documents supporting Berland's testimony were admitted into evidence.

Roderick Williams testified that he personally inspected the property (permanent index No. 25--09--212--004) for National Indemnity Corporation on September 19, 1998. On that date, Williams prepared a report stating that the property consisted of a two-story brick and frame building in good condition and a one-story frame garage in the rear. Williams assumed the property was unoccupied at the time because no one answered the door and there was a realtor's "For Sale" sign on the property. There were no names on the mailbox. Williams left a copy of the certificate of purchase and his supervisor's card in an envelope taped to the front door. He also went to the neighboring property at 9607 South Wentworth, but found no one home.

On October 8, 1998, Williams returned to 9609 South Wentworth. There was no real estate sign. The building was occupied but no one answered the door. There were no names on the mailbox. Williams' report stated that the improvements consisted of a one-story brick building in good condition and a one-story frame garage in the rear, but he testified that "one-story" was an error. Williams again left a copy of the certificate of purchase and his supervisor's card in an envelope taped to the front door. He also tried to contact the owner or occupant of an adjacent property at 9611 South Wentworth, but no one answered the door.

The record also shows that notice was published in the Chicago Daily Law Bulletin on November 18, 19, and 20, 1998, to respondent, William and Mavis Haley, and "Parties in occupancy or actual possession of said property; Unknown owners or persons interested in said land or lot."

The trial court, finding that Tanya was an occupant of the property and that petitioner had used due diligence to serve her with notice, denied the motion to vacate.

Respondent contends on appeal that the trial court erred in interpreting the Code to require personal service on occupants only if they can be found by diligent inquiry and, alternatively, that even if a diligence standard applies, the court manifestly erred in finding that petitioner used due diligence in locating Tanya.

Petitioner responds, in part, that, contrary to the trial court's finding, Tanya was not an "occupant" entitled to service within the meaning of the Code. In the alternative, petitioner contends that the trial court's finding that petitioner exercised due diligence was not against the manifest weight of the evidence, and the trial court correctly interpreted the Code ...


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