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In Re Application of the County Treasurer and Ex v. Mb Financial Bank

February 17, 2012

IN RE APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, FOR ORDER OF JUDGMENT AND SALE AGAINST REAL ESTATE RETURNED DELINQUENT FOR THE NONPAYMENT OF GENERAL TAXES FOR THE YEAR 2004 CCPI, LLC,
PETITIONER-APPELLEE,
v.
MB FINANCIAL BANK,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 08 COTD 1637 Honorable Robert W. Bertucci, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 After the trial court issued an order directing the issuance of a tax deed to petitioner CCPI, respondent MB Financial Bank filed a motion to: (count I) declare the tax deed void, pursuant to section 22-85 of the Property Tax Code (35 ILCS 200/22-85 (West 2008)); and (count II) vacate the order directing the issuance of the tax deed, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)).

¶ 2 Thereafter, petitioner filed a motion to dismiss counts I and II of respondent's motion, pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2010)). The trial court granted petitioner's motion to dismiss. Respondent appealed.

¶ 3 On appeal, respondent challenges the trial court's dismissal of respondent's motion to void the tax deed. Respondent contends petitioner failed to timely record the tax deed as required by statute because the filing of the first notice to extend the redemption period was a nullity and, thus, did not toll the deadline to record the tax deed. According to respondent, the first notice to extend was not valid because it was filed by the assignor after the tax lien had already been assigned to another party. Respondent contends that the assignor's lack of a statutory right to file the first notice to extend rendered that filing a nullity. Respondent concludes that petitioner's tax deed was not recorded within the required statutory time period and, thus, is void.

¶ 4 Respondent also challenges the trial court's dismissal of respondent's section 2-1401 petition to vacate the order directing the issuance of the tax deed. Specifically, respondent contends it sufficiently pled a cause of action that the tax deed was procured by fraud. According to respondent, the fact that the assignor had filed the first extension notice was concealed from the trial court when the assignee applied for the tax deed and when the tax deed hearing was held.

¶ 5 We hold that petitioner's tax deed is void with no right to reimbursement because it was not recorded within the time allowed by statute due to the invalid attempt by the assignor of the tax lien to extend the redemption period. Accordingly, we reverse the trial court's dismissal of respondent's motion to void the tax deed and remand this cause with directions.

¶ 6 I. BACKGROUND

¶ 7 In 2004, respondent bought the property at issue in this dispute. Sometime thereafter respondent constructed a new commercial building on the property and used it as one of its bank branches.

¶ 8 In June 2006, the property was sold to GJ Venture, LLC (GJ), for $347.84, the amount of the second installment of the 2004 general real estate taxes, at the Cook County annual tax sale. On the tax sale date, the property was a vacant lot. The original redemption expiration date from the tax sale date was June 12, 2008.

¶ 9 On July 11, 2006, GJ assigned the certificate of purchase and all its right, title and interest in the property to the Sabre Group, LLC (Sabre). On July 14, 2006, the county clerk issued a certificate of purchase to GJ.

¶ 10 On October 10, 2006, GJ delivered a take notice to the county clerk for mailing to the last assessed tax payer. The notice advised that party that the property was sold for delinquent taxes, the period of redemption from the sale would expire on June 12, 2008, and a petition for a tax deed to transfer title would be filed.

¶ 11 On April 10, 2008, GJ filed a notice to extend the period of redemption to July 25, 2008. That notice, which was in the form of an affidavit, provided that affiant GJ, "being first duly sworn, deposes and says that: [it] is the attorney for the owner and holder" of the certificate of sale, who was extending the redemption period. On July 1, 2008, attorney Heather Ottenfeld averred that she was the attorney for the owner and holder of the certificate of sale, who was extending the redemption period to November 26, 2008. Sabre's name did not appear on either the April or July notice. Also on July 1, 2008, Sabre filed a petition for the issuance of a tax deed, which alleged that the property had not been redeemed from the tax sale and the period of extension would expire on November 26, 2008.

¶ 12 On July 18, 2008, respondent was served by the county sheriff with statutory notice of the tax sale and final redemption date at the property's location. On July 22, 2008, respondent was personally served statutory notice by the sheriff at respondent's downtown Chicago location.

¶ 13 On October 6, 2008, the county clerk sent respondent an estimate of redemption. The estimate stated that: the property was sold to GJ for 2004 general taxes on June 12, 2006; the redemption date was extended to November 26, 2008, and a grand total of $5,007.31 was owed in taxes. The estimate stated, "Note: the grand total is subject to increase." Furthermore, a notation in the bottom, right corner of the form stated:

"Sale penalties increase every 6 months from the date of sale. Additional penalty of 0% amounting to $0 added after 12-12-08."

ΒΆ 14 Respondent issued a check, dated December 3, 2008, for $5,007.31 payable to the county clerk to redeem the taxes. However, on December 9, 2008, the county clerk returned respondent's check with a letter explaining that the county clerk was "unable to accept ...


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