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Harry Demos, Gus Demos and James Demos v. Maria Pappas

August 15, 2011

HARRY DEMOS, GUS DEMOS AND JAMES DEMOS,
PETITIONERS-APPELLEES,
v.
MARIA PAPPAS, COUNTY TREASURER OF COOK COUNTY, ILLINOIS, AS TRUSTEE OF THE INDEMNITY FUND CREATED BY SECTION 21--295 OF THE PROPERTY TAX CODE
(35 ILCS 200/21--295), RESPONDENT-APPELLANT BANK OF AMERICA, ILLINOIS, CITATION
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 08 COIN 11 Honorable Edward P. O'Brien, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hall and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Respondent, Maria Pappas, county treasurer of Cook County, Illinois (Treasurer), as trustee of the indemnity fund created by section 21--295 of the Property Tax Code (35 ILCS 200/21--295 (West 2008)), appeals from an order imposing 9% interest on an indemnity-fund judgment, pursuant to the postjudgment interest provision of the Code of Civil Procedure (hereinafter the Interest Act) (735 ILCS 5/2--1303 (West 2008)). The Treasurer argues that the 6% interest provision of the Interest Act should apply to such a judgment. We agree and therefore reverse the order of the circuit court.

¶ 2 I. Background

¶ 3 Petitioners, Harry Demos, Gus Demos and James Demos, filed a "Petition for Indemnity Fund Relief" against the Treasurer on May 15, 2008, seeking compensation for the loss of their property, which had been transferred from their ownership by tax deed. Petitioners alleged their property had been sold for the nonpayment of 1999 real estate taxes. After the period of redemption, a tax deed was issued by an order of the circuit court in 2004. Petitioners claimed they paid the 1999 taxes on the property by mail, did not receive notice of the tax sale proceedings, and did not learn of the tax sale until after the tax deed had been recorded in 2004. Petitioners failed to vacate the tax deed, and they further alleged that they were not negligent or at fault for the loss of their property by tax sale and were entitled to relief from the indemnity fund.

¶ 4 On September 19, 2009, an agreed judgment in the amount of $497,500 was entered in favor of petitioners and against the Treasurer, "solely in her capacity as Trustee of the Indemnity Fund." The Treasurer, therefore, issued petitioners a check dated November 4, 2009. That check was in the amount of $501,425.48, including $3,925.48 of interest, paid at a rate of 6% per annum from September 16, 2009 to November 4, 2009.

¶ 5 On November 18, 2009, petitioners served Bank of America with a "Citation to Discover Assets to a Third Party," asserting they were owed additional interest on their judgment, and they requested Bank of America to preserve funds held on behalf of the Treasurer. The Treasurer appeared on the citation and made an objection.

¶ 6 The issue before the trial court in the citation proceeding was whether the original judgment, which was entered in favor of the petitioners and against the Treasurer as trustee of the indemnity fund, was subject to a postjudgment interest rate of 6% or 9% under the Interest Act. That statutory provision provides, in relevant part:

"Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity." 735 ILCS 5/2--1303 (West 2008).

¶ 7 The Treasurer and petitioners filed cross-motions for summary judgment as to the issue of whether additional interest was owed. The Treasurer argued that petitioners were entitled to 6% postjudgment interest because the Treasurer was a "governmental entity." Petitioners, on the other hand, argued they were entitled to 9% interest because the Treasurer, as a trustee of the indemnity fund, does not perform a governmental function and the indemnity fund is, therefore, "private" because it is made up of fees paid by tax deed purchasers and distributed to a "finite group of people who have lost their property through a tax sale." The trial court granted petitioners' motion, found that petitioners were entitled to 9% interest, and ordered Bank of America to tender the additional interest owed to petitioners. The Treasurer timely appealed.

¶ 8 II. Analysis

¶ 9 On appeal, the Treasurer reasserts the arguments made in the trial court with respect to the proper amount of interest it owed to petitioners. Petitioners have not filed an appellees' brief in this court, and we previously ordered that this appeal would be decided on the Treasurer's brief only. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (where the record in the case is neither lengthy nor ...


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