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In Re Application of the County Treasurer and Ex Officio County v. Alsj

August 22, 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 2005 ILLINOIS AND PRIOR YEARS, Z FINANCIAL, LLC,
PETITIONER-APPELLEE,
v.
ALSJ, INC., RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County, 09 COTD 3329. Honorable Paul A. Karkula, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion. Presiding Justice Steele and Justice Salone concurred in the judgment and opinion.

OPINION

¶ 1 This appeal follows the trial court's August 31, 2011, order directing the issuance of a tax deed to petitioner, Z Financial, LLC, for the subject property, unit A-33 in the 405 North Wabash Avenue parking condominium. Respondent, ALSJ, Inc. (ALSJ), asserts that the trial court erred in granting the petition for tax deed. Additionally, respondent contends that the trial court erred in denying its motion to deem facts admitted and denying it's motion for summary judgment. For the following reasons, we find the trial court erred in finding petitioner complied with Illinois Supreme Court Rule 216(c) (eff. May 30, 2008), reverse its order denying respondent's motion to deem facts admitted and remand the matter for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The property at issue is unit A-33 in the 405 North Wabash Parking Condominium located at 405 North Wabash Avenue, Chicago, Illinois (property). On June 22, 2007, the Cook County collector sold the property to petitioner for nonpayment of 2005 general taxes. On December 30, 2009, petitioner filed its petition for tax deed. Petitioner noted that the final date of redemption from the tax sale was June 4, 2010; therefore, the notice serving period pursuant to section 22-10 of the Property Tax Code (35 ILCS 200/22-10 (West 2010)) was December 4, 2009, through March 4, 2010. Exhibit B to the petition was a copy of the notice required by law to be sent to all interested parties.

¶ 4 On August 26, 2010, petitioner filed its application for an order directing the county clerk to issue a tax deed for the property. Petitioner listed Strug, LLC (Strug), ALSJ, Austin Bank of Chicago, and "405 N. Wabash Parking Condominium Association", as the parties who were owners, occupants, and parties interested in the property. Of note, "D. Giljen, 405 N. Wabash Ave. #807" is listed as one of the addresses of service for Strug. This name and address are listed for the grantor on the mortgage agreement for the subject parking space, signed as Daniel Giljen, a/k/a Dragoljub Giljen*fn1 .

¶ 5 The subsequent section of the petition contained a list of the manner and date of service of each of these parties and the address for which that service was effected. As addressed by petitioner, the sheriff's return affidavits of service for this case were originally filed in the incorrect case file. Prior to the hearing on this case, the returns were located, placed in the correct file, and are of record here on appeal.

¶ 6 A tract index search conducted by Five Star Abstracting & Paralegal Services was attached to the petition. The search indicated that the property was deeded to Strug, LLC, in February 2006. A mortgage on the property to ALSJ, Inc., from Strug, LLC, was filed on November 8, 2006. The mortgage attached to the petition to Austin Bank of Chicago from Strug is shown on the search as filed May 16, 2007. Finally, the search indicated that a lis pendens action was recorded on October 23, 2009, relating to the mortgage between ALSJ and Strug.

¶ 7 Respondent filed an appearance and objected to petitioner's application. Respondent alleged that there was no sheriff's return filed with the clerk of the court indicating that Strug, the owner of record, was served. Respondent added that the sheriff's return of service indicated that Brian Levay was served as agent for Strug, but he was described as a 50-year-old black male. Respondent attached an affidavit of Robert Nothstein, averring that Levay is a registered agent for Strug, as identified in the Illinois Secretary of State records, but that Strug had been involuntarily dissolved by the Secretary of State and that Levay is a 46-year-old Caucasian male.

¶ 8 Respondent added that Dragoljub Giljen was the member manager of Strug. Moreover, respondent noted that Giljen was listed as the party to receive tax bills for the property, as well as an interested party in the lis pendens action, and the signator for Strug in its mortgage with ALSJ. In addition, respondent stated that the address of the subject property was listed inconsistently by petitioner on its section 22-5 notice, on the complaint for foreclosure, and its section 22-10 notices. Accordingly, respondent asserted that petitioner failed to comply with the notice and due diligence requirements of the Property Tax Code and prayed the petition for tax deed be denied.

¶ 9 On November 17, 2010, respondent propounded a request for admission of facts on petitioner. Petitioner filed an answer on December 14, 2010, signed by counsel, Richard Glickman. The answer was without any supporting affidavit swearing to the responses. On January 13, 2011, respondent filed a motion to deem facts admitted for petitioner's attorney's failure to include the required sworn statement per Rule 216 (c). On February 25, 2011, the trial court set a briefing schedule as well as a hearing date of April 15, 2011, for respondent's motion.

¶ 10 On March 31, 2011, petitioner filed a "supplemental" answer to petitioner's request to admit. The supplemental answer included a photocopy of the original answer and sworn affidavits from Glickman and Keith Moll, manager of Z Financial, LLC, verifying the responses. Following argument on respondent's motion, the trial court denied the motion. The court found that counsel for petitioner had direct knowledge of the facts. Therefore, it concluded that counsel's affidavit was sufficient to meet the requirements of the rule and it was proper to not have a corporate representative of petitioner verify the contents. A briefing schedule was set for respondent's motion for summary judgment.

ΒΆ 11 Respondent asserted that petitioner violated the notice requirements of the Property Tax Code by failing to serve or provide proof of service of notice by the sheriff on ALSJ, Austin Bank of Chicago, and 405 N. Wabash Parking Condominium Association. Respondent also alleged that petitioner failed to provide proof of service of the Cook County clerk. Next, respondent asserted that petitioner filed to identify, provide notice to and serve Dragoljub Giljen as an interested party and occupant of the property. Respondent contended that petitioner failed to provide complete and consistent addresses in its section 22-5, section 22-10, and section 22-25 notices. Finally, respondent asserted that petitioner ...


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