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In re Application of the County Treasurer

Court of Appeals of Illinois, Fourth District

January 27, 2014

In re: the Application of the Douglas County Treasurer and Ex Officio County Collector of Douglas County, Illinois, for Order of Judgment and Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 2006, DENNIS D. BALLINGER, Petitioner-Appellant,
v.
DOUGLAS A. MOORE and RICHARD W. MOORE, Not Individually But as Coexecutors of the Estate of JOAN J. COOK, Deceased; CLIFFORD M. JONES; and NANCY H. JONES, Respondents-Appellees

Page 215

Appeal from Circuit Court of Douglas County. No. 07TX1-17. Honorable Michael G. Carroll, Judge Presiding.

SYLLABUS

Summary judgment was properly entered for respondents in their action to set aside the tax deed acquired by petitioner, since he failed to make a " diligent inquiry" as to persons with an ownership interest in the property as required by section 22-45 of the Property Tax Code.

Mark S. Morthland (argued), of Moore, Susler, McNutt & Wrigley, LLC, of Decatur, for appellant.

James D. Lee (argued), of J.D. Lee Law Offices, LLC, of Tuscola, for appellees.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Pope and Steigmann concurred in the judgment and opinion.

OPINION

Page 216

KNECHT, JUSTICE.

[¶1] In January 2008, petitioner, Dennis D. Ballinger, purchased the taxes due for tax year 2006 on a 40-acre parcel of farmland in Douglas County (permanent index No. 02-07-24-200-002) (hereinafter the property). In 2010, Ballinger acquired a tax deed for the property. In September 2011, respondents Douglas A. Moore, Richard W. Moore (both as coexecutors of the estate of Joan J. Cook), Clifford M. Jones, and Nancy H. Jones filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), alleging Ballinger failed to provide proper notice and requesting the tax deed be set aside. In March 2013, the trial court granted respondents' motion for summary judgment and set aside the tax deed.

[¶2] Ballinger appeals, arguing the trial court erred in granting respondents' summary judgment motion because (1) Nancy does not have a " recorded" ownership interest in the property to be entitled to relief pursuant to section 22-45(4) of the Property Tax Code (35 ILCS 200/22-45(4) (West 2010)), and (2) issues of material fact remain whether Ballinger conducted a diligent inquiry to locate Nancy. We disagree and affirm.

[¶3] I. BACKGROUND

[¶4] A. Background to the Property

[¶5] A brief background to the property and respondents' familial relationship is necessary to understand the parties' arguments. (See Appendix A.) Gertrude Jones owned the property at the time of her death in May 1946. At the time of her death, Gertrude had two living children, Theodore Jones and Melville Jones. Nancy is Melville's daughter. Gertrude's third son, George Jones, predeceased her in 1945. George was survived by his wife, Cecily Jones (later Cecily B. Cline), and children, Joan, William and a third child who is not relevant to this appeal. In her will, Gertrude devised the property to Cecily, for life, with the remainder to her grandchildren. Cecily died in January 1984. William's son, Clifford, obtained his interest in the property in 1990. Joan died in April 2011, and was survived by her children, Douglas and Richard Moore. To summarize, Joan, William, and Nancy are Gertrude's grandchildren, and Clifford, Douglas, and Richard are Gertrude's great-grandsons.

[¶6] Joan lived in Charlotte, North Carolina; Nancy has lived in Taylorville, Illinois, for 35 years; and Clifford has lived in Champaign, Illinois, for 6 years.

[¶7] B. The Initial Proceedings

[¶8] In January 2008, Ballinger purchased the property's taxes due for tax year 2006. In June 2010, Ballinger filed a petition requesting the trial court to issue a tax deed, stating the redemption period would expire on December 9, 2010. He submitted a " Take Notice" to the Douglas County clerk for certified mailing to (1) the Douglas County clerk, (2) Clifford (with a Bristol, Wisconsin, mailing address), (3) William, (4) the Internal Revenue Service, (5) the United States Attorney General, (6) the United States District Attorney, and (7) " Joan Jones Moore" (with a Charlotte, North Carolina, mailing address). The return receipts for the governmental entities and William were returned as delivered. The return receipt for Clifford was returned as " Returned to Sender/Attempted/Not Known." The return receipt for " Joan Jones Moore" was

Page 217

returned as " Returned to Sender/Unclaimed/Unable To Forward." We note Ballinger attached a 2009 federal tax lien for Clifford with a Tuscola, Illinois, mailing address. Ballinger published the " Take Notice" in the Tuscola Journal between August 11, 2010, and August 25, 2010.

[¶9] On December 30, 2010, Ballinger requested the trial court to issue a tax deed for the property. By affidavit, Ballinger stated the property's owners were the " Cecily B. Cline Estate," Clifford, William, and " Joan Jones Moore." He also stated, upon diligent inquiry of " pertinent documents on file" in the Douglas County court clerk's office he could not locate addresses for the " Cecily B. Cline Estate Heirs, Devisees & Legatees." The same day, the trial court ordered issuance of the tax deed. Ballinger recorded the deed on June 24, 2011.

[¶10] C. The Instant Proceedings

[¶11] On September 19, 2011, respondents filed a petition for relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)). Respondents alleged they were owners of record of the property and did not receive notice of the tax deed proceedings. All four respondents attached an affidavit stating they did not receive notice of the tax deed proceedings.

[¶12] In November 2011, Ballinger filed a motion to dismiss respondents' petition. Ballinger asserted he reviewed the records in the Douglas County recorder's office in June 2010, and at the time of his search respondents " did not have any interest whatsoever in the subject property." He argued (1) " the law imposes upon [him] the duty to only conduct one search of the records in the Recorder's Office," and (2) the Moores did not have an interest because they acquired their interest through Joan, who died in April 2011. He added (1) Nancy was a remainderman under Gertrude's will, but " [she] had no recorded interest in the subject property at the time [he] conducted a search of the records in the Recorder's Office" because she was not named in the will; and (2) the publication notice " cures any defect that may exist in not providing notice if the individual['s] identity *** [is] unable to be ascertained by the certificate holder."

[¶13] In February 2012, respondents filed a memorandum in opposition to Ballinger's motion to dismiss. Respondents asserted counsel performed " an independent title search" of the Douglas County recorder of deeds', circuit clerk's, treasurer's, and supervisor of assessments' offices. Based on counsel's search, respondents contended someone examining Gertrude's will and the property's ownership should have determined whether Melville had any children. This would have led to Nancy. They added Nancy could be discovered through another deed covering other property devised in Gertrude's will.

[¶14] In February 2012, the trial court denied Ballinger's motion to dismiss. In its detailed, five-page order, the court ruled Ballinger admitted Nancy was Gertrude's grandchild. It rejected Ballinger's contention Nancy did not have an ownership interest because her interest vested when the life estate terminated in 1984. It added " it is obvious that there was no due diligence" by Ballinger in locating owners as the record showed notice was sent to someone who was not an owner, William, and no notice was sent to someone who was actually an owner.

[¶15] In November 2012, respondents filed a motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)). Respondents attached affidavits from William, Clifford, and Nancy. William's affidavit stated (1) he had no ownership ...


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