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People ex rel. McGuire v. Cornelius

Court of Appeals of Illinois, Third District

December 19, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. PATRICK McGUIRE, COUNTY TREASURER AND ex officio COUNTY COLLECTOR OF WILL COUNTY, ILLINOIS, Plaintiffs,
v.
LORRAYNE M. CORNELIUS; MELVIN R. CORNELIUS; NANCY SCHULTZ VOOTS; WILL COUNTY CLERK; OCCUPANTS; AND UNKNOWN OWNERS OR PARTIES INTERESTED IN SAID LAND OR LOTS, Defendants. (DG Enterprises, LLC - Will Tax, LLC, Petitioner-Appellant,
v.
Vincent F. Cornelius, as Independent Administrator of the Estate of Lorrayne M. Cornelius, Deceased, Respondent-Appellee)

Modified Upon Denial of Rehearing January 23, 2015.

Page 1148

Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois, Circuit No. 11 TX 249. The Honorable Bobbi Petrungaro Judge, Presiding.

SYLLABUS

In a tax deed case, the trial court properly vacated its order issuing a tax deed to petitioner, since petitioner failed to provide proper notice to respondent by omitting the address and telephone number of the county clerk on the take notice forms.

Robert S. Krockey and Timothy Clark (argued), both of Krockey, Cernugel, Cowgill & Clark, Ltd., of Joliet, for appellant.

George F. Mahoney (argued), of Mahoney, Silverman & Cross, of Joliet, and Vincent F. Cornelius, of Law Office of Vincent F. Cornelius, of Wheaton, for appellee.

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion, Justice Wright concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.

OPINION

McDADE, PRESIDING JUSTICE

Page 1149

[¶1] Petitioner, DG Enterprises, LLC-Will Tax, LLC, appeals from an order of the trial court granting the combined motion of Respondent, Estate or Lorrayne M. Cornelius, challenging personal jurisdiction under Section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 2010)) and seeking relief under Section 22-45 of the Property Tax Code (the Tax Code) (35 ILCS 200/22-45 (West 2010)) and section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)). The trial court concluded that the petitioner failed to fulfill the notice requirements of the Tax Code depriving the court of in personam jurisdiction to issue the tax deed for the petitioner. The trial court vacated its previous order of the tax deed issuance to the petitioner. The petitioner appeals, arguing that tax deed cases are in rem rather than in personam proceedings; thus, the issue is whether the trial court had jurisdiction to issue the tax deed, not whether there was personal jurisdiction. Petitioner further argues that the respondent's combined motion was insufficient to afford her the relief of. In a decision issued December 19, 2014, this court held that this is an in rem proceeding but otherwise affirmed the trial court's vacating of the tax deed issuance order.

[¶2] The petitioner has filed a petition for rehearing noting a discrepancy in dates in the " facts" for prior proceedings and party designations. It also raises three issues with this court's decision: (1) the court misapplied the requirements of section 2-1401 of the Code and section 22-45 of the Tax Code and sustained the order vacating

Page 1150

the tax deed issuance order where the respondent cannot sustain its burden of proof; (2) this court elevated rote completion of the form 22-10 notice into a jurisdictional requirement which is contrary to the statute's plain language and case law; and (3) the court has blurred the line between void orders and voidable orders by relying on the petitioner's lack of strict compliance with the requirements of the notice in section 22-10 of the Tax Code. The petition is denied with slight modification of the opinion. We have corrected the dates of prior proceedings in the " facts" . However, as noted on the court's fact sheet as well as in the petitioner's briefs, the petitioner has remained the petitioner of record and not the respondent. Thus the designations remain unaltered in this decision. The substance of the petitioner's challenges to the court's decision was fully addressed in the original opinion. For further clarification, we include identifying terms for the personal jurisdiction issue and a one sentence elucidation of the court's concurrent need for subject matter jurisdiction. The trial court's ruling remains affirmed.

[¶3] FACTS

[¶4] The facts are undisputed. The petitioner purchased the 2007 delinquent real estate taxes for the property known as 716 Henderson Avenue, Joliet, Illinois, from the Will County collector at a public auction on November 6, 2008. On February 4, 2009, in accord with the requirements of the section 22-5 of the Tax Code, the petitioner drafted and then requested that the county clerk send by certified mail the completed " Notice of Sale and Redemption Rights" (Take Notice I) form to the respondent. 35 ILCS 200/22-5 (West 2010). This section of the Tax Code specifies that in order to be entitled to a tax deed, the tax purchaser shall tender to the clerk the provided form " completely filled in." 35 ILCS 200/22-5 (West 2010). The form has a section for the tax purchaser to provide the address and telephone number of the county clerk:

" For further information contact the County Clerk
ADDRESS: ..........
TELEPHONE: ........" 35 ILCS 200/22-5 (West 2010).

The petitioner did not include this information in the prepared Take Notice I form sent to the respondent.

[¶5] After extending the period for redemption from May 6, 2011, to November 4, 2011, as well as identifying other interested parties for the tax deed through a commitment for title insurance order, the petitioner filed its petition for tax deed. The petitioner then requested the county clerk send by certified mail a completed " Notice of Expiration of Period of Redemption" (Take Notice II) form to all of the known interested parties. The required format of Take Notice II in section 22-10 of the Tax Code is nearly identical to that of Take Notice I required in section 22-5 of the Tax Code. 35 ILCS 200/22-5, 22-10 (West 2010). Although the contact information for the county clerk is still a requirement, the petitioner again failed to include it.

[¶6] The Take Notice II was sent by certified mail by the county clerk and the petitioner also took additional steps to complete personal service on the respondent and all other interested parties. The petitioner enlisted the services of a licensed process server who attempted 11 times to personally serve the respondent and all other interested parties. The petitioner also had the Take Notice II published in the Times Weekly in accordance with section 22-20 of the Tax Code. 35 ILCS 200/22-20 (West 2010).

Page 1151

[¶7] No redemption from sale was made on or before November 4, 2011, the expiration date.

[¶8] On November 17, 2011, a hearing was held on the petitioner's application. The trial court ordered issuance of a tax deed to the petitioner. Neither respondent nor any other person with an interest in the property appeared at the hearing.

[¶9] On March 14, 2012, the respondent filed her appearance through counsel[1] and filed her combined motion objecting to the court's jurisdiction and seeking relief from the ...


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