Court of Appeals of Illinois, First District, Third Division
In re APPLICATION OF THE COUNTY TREASURER AND ex officio COUNTY COLLECTOR OF COOK COUNTY ILLINOIS, for Order and Judgment of Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes for the Year 2007 and Prior Years (TCF Bank, and Jose and Minerva Negron, Petitioners-Appellants
Community Partners, LLC and FNA Cardinal 09, LLC, Respondents-Appellees)
Appeal from the Circuit Court of Cook County. No. 2011 COTD 4316. The Honorable Robert W. Bertucci, Judge, presiding.
For PETITIONERS-APPELLANTS: John W. Stanko, Jr., Flamm Teibloom & Stanko, Ltd., Chicago, Illinois.
For RESPONDENT-APPELLEE: Terry J. Carter, Eric H. Wudtke, Cater Legal Group, P.C., Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
[¶1] The circuit court of Cook County granted Community Partners, LLC, a tax deed to property owned and occupied by Jose and Minerva Negron. (FNA Cardinal 09, LLC, had obtained a certificate of purchase and assigned it to Community Partners.) Despite FNA's attempts at service, the Negrons never received notice of the tax deed proceeding, and they, along with TCF National Bank, which held a mortgage on the property and was served with notice, filed a petition to vacate the order under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). The petition alleged the tax deed was procured through fraud under section 22-45 of the Property Tax Code (35 ILCS 200/22-45 (West 2012)), constituted a taking in violation of their constitutional rights to due process under article IX, section 8 of the Illinois Constitution (Ill. Const. 1970, art. IX, § 8), and was an illegal eviction under the forcible entry and detainer provisions of the Code (735 ILCS 5/9-101 to 9-321 (West 2012)). FNA and Community Partners filed a motion to dismiss the petition to vacate, which the trial court granted. The Negrons and TCF contend the trial court erred in finding that the tax deed was not procured through fraud because the court would not have issued the tax deed if it had known that: (i) the Negrons were living in the house and had not been personally served with notice that the property had been sold for delinquent taxes; and (ii) TCF Bank was served notice at a branch in Chicago, which was not the address listed in the mortgage documents. The appellants also contend that because they were not personally served notice of the tax deed proceeding, the order granting a tax deed violated their due process rights under the Illinois and United States Constitutions.
[¶2] We affirm. The trial court did not err in dismissing the section 2-1401 petition, because no grounds existed for a fraud finding as nothing in the record suggests Community Partners acted with the intent to deceive the appellants. Moreover, the trial judge stated that when he entered the order granting the tax deed, he knew the Negrons were living in the house and had not been personally served with notice of the tax sale. FNA also did not violate the Negrons' due process rights because, although they were not personally served, the notice was reasonably calculated, under the circumstances, to apprise them of the tax deed proceeding and afforded them an opportunity to present their objections.
[¶4] In 1990, Jose and Minerva Negron purchased a single-family home at 6434 S. Sacramento Avenue, Chicago. The Negrons executed two notes and mortgages in
favor of TCF National Bank--one in 2004 and one in 2007. Both mortgages were recorded with the Cook County recorder of deeds. The Negrons resided in this home.
[¶5] On July 20, 2009, Elm Limited, LLC, purchased the delinquent 2007 general real estate taxes on the property in the amount of $825.49 and was issued a certificate of purchase. On March 1, 2011, Elm Limited, LLC, assigned the certificate of purchase to FNA Cardinal 09, LLC. On December 13, 2011, FNA filed a petition for a tax deed and extended the period of redemption to June 8, 2012. Thus, the notices to the owner and interested parties required by sections 22-10, 22-15, and 22-25 of the Property Tax Code (35 ILCS 200/22-10, 22-15, 22-25 (West 2012)) had to be filed between December 8, 2011 and March 8, 2012, which is referred to as the " notice serving period."
[¶6] FNA conducted a LexisNexis Accurint database search that revealed a current address for the Negrons at 4820 S. Keeler Avenue, Chicago. Thus, FNA directed the clerk of the circuit court to send the take notice under section 22-25 of the Property Tax Code (35 ILCS 200/22-25 (West 2012)) by certified mail to the Keeler Avenue address. Certified mail service was attempted on December 21, 2011, but the mailings were returned as unclaimed. The sheriff also sent the notice to Jose and Minerva Negron by certified mail to the Keeler address. The postal carrier unsuccessfully attempted delivery on four occasions--January 24, 2012, January 29, 2012, February 9, 2012, and February 23, 2012. The certified mail envelope for the first three attempts of service states, " Notify sender of new address 6434 S. Sacramento Ave., Chicago, IL 60629."
[¶7] FNA directed the clerk of the court to deliver the tax notices by certified mail to Jose and Minerva Negron at the Sacramento Avenue address. A postal carrier attempted to deliver the certified mailings at that address on December 20, 2011, December 28, 2011, and January 7, 2012. Those mailing were returned to the sender unclaimed. FNA also directed the clerk to send a take notice by certified mail to the general occupant of the house at the Sacramento Avenue address. The postal carrier attempted to deliver that take notice on the occupant on December 20, 2011, December 28, 2011, and January 7, 2012, but it was returned to sender as unclaimed.
[¶8] On December 16, 2011, FNA delivered take notices to the Cook County sheriff to be personally served under section 22-15 of the Property Tax Code (35 ILCS 200/22-15 (West 2012)). On January 7, 2012, the sheriff attempted to personally serve notice on Jose Negron and Minerva Negron individually at the Sacramento Avenue address, but service was not obtained and the affidavits of service indicate " no contact" with either party. The sheriff again attempted personal service on the Negrons at the Sacramento Avenue address on March 7, 2012, but was not successful. On both affidavits, the sheriff indicated that the house was vacant, as the reason why service was unsuccessful. The sheriff then sent the take notice individually to Jose and Minerva Negron at the Sacramento Avenue address on January 12, 2012, January 16, 2012, January 26, 2012, February 23, 2012, February 28, 2012, and March 8, 2012.
[¶9] FNA also directed the sheriff to personally serve the Negrons with the take notice at the Keeler Avenue address. The sheriff attempted service on January 7, 2012, but service was not obtained and " no contact" was noted on both affidavits of service. The sheriff also unsuccessfully attempted personal service on Jose Negron on March 4, 2012, and on Minerva
Negron on March 7, 2012, at the Keeler address. The sheriff indicated " no contact" on both affidavits of service as the reason why service was not successful.
[¶10] FNA also directed the sheriff to personally serve a take notice on the " general occupant" at the Sacramento Avenue address, and the sheriff attempted service on January 7, 2012, and March 7, 2012, but was unsuccessful. The sheriff indicated " vacant hse" on the affidavit. The sheriff also sent the take notice by certified mail to the general occupant of the property. The postal carrier attempted to deliver the notice six times, on January 13, 2012, January 18, 2012, January 23, 2012, February 23, 2012, February 28, 2012, and March 8, 2012, but each time the notice went unclaimed. Thus, although FNA, through the sheriff, twice attempted to serve the Negrons at the Sacramento Avenue address and the Keeler address, the Negrons were never personally served with notice, nor was there evidence that they were served notice by certified mail.
[¶11] FNA published notice of the tax sale in the Chicago Daily Law Bulletin on February 27, 2012, February 28, 2012, ...