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Petition of Phoenix Bond & Indemnity Company v. Orr

June 28, 2001

IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, ILLINOIS FOR JUDGMENT AND ORDER OF SALE FOR LANDS AND LOTS RETURNED FOR NONPAYMENT OF ANNUAL GENERAL REAL ESTATE TAXES FOR 1996 AND PRIOR YEARS.
PETITION OF PHOENIX BOND & INDEMNITY COMPANY, FOR TAX DEED, PETITIONER-APPELLANT,
v.
DAVID D. ORR, COUNTY CLERK OF COOK COUNTY, ILLINOIS, AND JOHN BACINO AND JOANN BACINO, HIS WIFE, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. Misc. 97-97 #18 Honorable Nancy Drew Sheehan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hartman

Not Released For Publication

IN THE MATTER OF THE APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF COOK COUNTY, ILLINOIS FOR JUDGMENT AND ORDER OF SALE FOR LANDS AND LOTS RETURNED FOR NONPAYMENT OF ANNUAL GENERAL REAL ESTATE TAXES FOR 1996 AND PRIOR YEARS.
PETITION OF PHOENIX BOND & INDEMNITY COMPANY, FOR TAX DEED, PETITIONER-APPELLANT,
v.
DAVID D. ORR, COUNTY CLERK OF COOK COUNTY, ILLINOIS, AND JOHN BACINO AND JOANN BACINO, HIS WIFE, RESPONDENTS-APPELLEES.

Appeal from the Circuit Court of Cook County. No. Misc. 97-97 #18 Honorable Nancy Drew Sheehan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hartman

Petitioner, Phoenix Bond & Indemnity Company (Phoenix), appeals the circuit court's denial of its motion to expunge redemption against respondents John and Joann Bacino (the Bacinos) and David D. Orr, County Clerk of Cook County. In its motion, Phoenix asserted that the Bacinos' redemption deposit, submitted on January 31, 2000, 24 months and 1 day from the date of the tax sale, was insufficient and inadequate, and did not comply with section 21-355 (b)(5) (35 ILCS 200/21-355 (b)(5) (West 1998)) of the Illinois Property Tax Code (35 ILCS 200/1-1 et seq. (West 1998) (Code)). Respondents contended that because January 30, 2000, the date of expiration of an accrued penalty period, fell on a Sunday, section 1.11 (5 ILCS 70/1.11 (West 1998) (section 1.11)) of the Statute on Statutes (5 ILCS 70/0.01 et seq. (West 1998)) extended the deadline to submit payment at four times the penalty bid rate until the next business day, Monday, January 31, 2000. The circuit court denied Phoenix's motion, refusing to bifurcate the issues of redemption expiration and penalty accrual. Phoenix appeals.

 The legal issue presented is whether section 1.11 is applicable to abate the expiration of an accrual period for penalty rates for the purposes of assessing the amount of tax redemption owed.

On January 30, 1998, the Cook County Collector conducted its annual sale of delinquent real estate taxes for the 1996 tax year. At that sale, Phoenix purchased a lien for delinquent real estate taxes on property identified as permanent index number 30-08-402-002-0000 (subject premises). As evidence of its completed acquisition, Phoenix received a certificate of purchase. At the time of sale, the Bacinos had an interest in the subject premises.

On January 14, 2000, the county clerk of Cook County prepared an official estimate of cost of redemption for the subject premises. The estimate is returned to the clerk once redemption occurs. The estimate in the instant matter, when issued to the Bacinos on January 18, 2000, indicated that because more than 18 and less than 24 months had passed since the 1998 tax sale, the accrued penalty due amounted to $7,503.28, which was calculated by multiplying the penalty period times four and dividing that percentage into the certificate amount paid by Phoenix at the sale. Further, the estimate stated that "[s]ale penalties increase every 6 months from the date of sale," and an additional penalty of 18% amounting to $1,875.82 would be added after January 30, 2000, which fell on a Sunday. The total cost of redemption until January 30, 2000, including fees, penalties, and subsequent taxes, equaled $40,452.35.

On Monday, January 31, 2000, the Bacinos delivered the estimate to the clerk together with their redemption, totaling $40,452.35, which did not include the $1,875.82 that the estimate stated on its face was to have been a part of any redemption made after January 30, 2000. The office of the county clerk of Cook County was closed on Sunday, January 30, 2000. Nevertheless, the clerk accepted the redemption payment at four times the penalty rate on the next business day.

On February 9, 2000, Phoenix filed a motion to expunge redemption, challenging the amount paid by the Bacinos and accepted by the clerk to redeem the subject premises. Phoenix contended that the redemption deposit was insufficient and inadequate because it was made after 24 months from the date of sale and, consequently, should have included $1,875.82, the accrued amount totaling five times the penalty rate, instead of four times the penalty rate.

In their responses to Phoenix's motion, both the clerk and the Bacinos cited section 1.11, *fn1 arguing the Bacinos could not redeem on a Sunday and were, therefore, entitled to redeem on the succeeding Monday without any change in the amount of the deposit despite the passage of 24 months from the date of sale on the previous day. Phoenix replied to those answers by distinguishing between the act of redemption, which legally could not expire on a Sunday, and the accrual of penalty rates, which occurs on the first day of each succeeding six-month period from the date of sale.

On May 22, 2000, the circuit court denied Phoenix's motion to expunge, stating that the court would not "bifurcate the issue of redemption and penalty." From this ruling, Phoenix appeals.

Phoenix asserts that the accrual of a penalty on a tax certificate, which evidences the sale of the county collector's judgment, is similar to accruals of interest on any other judgment or debt and, therefore, is neither subject to abatement on non-business days, nor defined as an act that the judgment debtor must perform. Phoenix argues that the Bacinos' right to redeem did not expire on Monday, January 31, 2000; instead, the amount necessary for redemption increased as of that date. As a result, Phoenix ...


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