2025 IL App (1st) 240859-U
Ill. App. Ct.2025Background
- Jaylnn & Javaris Foundation, Inc. (J & J), a 501(c)(3), owned a mixed-use building identified as 354 E. 115th St.; 2017 taxes on PIN 25-22-123-006-0000 went unpaid.
- Greg Bingham’s tax-lien entity (Intaxx, later substituted by Cortezz, LLC) purchased the delinquent taxes at auction in May 2019; a prove-up hearing was held by videoconference on October 28, 2021.
- At the prove-up, attorney Douglas Miller summarized an affidavit by Bingham saying he visited the property during the notice period but could not determine occupancy or contact anyone; proof of statutory notices and certified mail service were filed.
- The court granted the tax deed (order entered Feb.–Mar. 2022) and possession followed (eviction June 2022). Gardner (J & J president) then filed a 735 ILCS 5/2-1401 petition to vacate, alleging lack of notice and fraud in the prove-up.
- After an evidentiary hearing (Gardner and Bingham testified), the trial court denied relief, finding J & J did not prove by clear and convincing evidence that the tax deed was procured by fraud; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tax deed should be vacated for fraud in the prove-up | Bingham and counsel misrepresented efforts to give notice and occupancy status; tax deed procured by deception | Tax purchaser complied with statutory notice duties (title search, Secretary of State, certified mail); attorney’s summary was not deceptive | Denied — no clear and convincing evidence of fraud upon the court |
| Whether purchaser exercised ``diligent inquiry and effort'' to locate interested parties | Purchaser failed to pursue leads (quitclaim showing 352/354, on-site mailboxes, online contact info) and relied too much on title company/postal delivery | Purchaser used commercially reasonable methods (title opinion, public records, Secretary of State, certified mail) and did what statute requires | Held purchaser’s efforts were not shown to be deceptive or calculated to mislead the court |
| Validity/admissibility of Bingham affidavit and Miller’s courtroom statements (notary / conflict) | Affidavit misdated, notarized by Miller who shared office with Bingham; Miller’s summary violated notary/public‑notary rules and amounted to hearsay/false testimony | Miller summarized his client’s affidavit as counsel/officer of the court; statements were not false and objections were forfeited when not raised below | Held many objections forfeited; Miller’s summary was a permissible statement and did not establish fraud at the prove-up |
| Standard of review and burden on 2-1401 petition | J & J argued de novo review of legal errors and raised new arguments on appeal | Court and Cortezz: abuse-of-discretion review applies; petitioner must prove fraud by clear and convincing evidence and may not raise new issues on appeal | Held abuse-of-discretion standard controls; petitioner failed to meet the required clear-and-convincing showing; several arguments forfeited |
Key Cases Cited
- In re Application of the County Treasurer, 347 Ill. App. 3d 769 (Ill. App. 2004) (describing tax-sale notice purposes and interested-party protections)
- Smith v. D. R. G., Inc., 63 Ill. 2d 31 (Ill. 1976) (petitioner alleging fraud in tax-deed proceeding bears the burden of proof)
- Application of County Treasurer, 67 Ill. App. 3d 122 (Ill. App. 1978) (Murray) (fraud defined as wrongful intent or concealment of facts that would change court’s ruling)
- D.S. Associates, 278 Ill. App. 3d 168 (Ill. App. 1996) (constructive/publication notice is last resort after diligent inquiry)
- Jones v. Flowers, 547 U.S. 220 (U.S. 2006) (due process does not require actual notice; scope of reasonable steps depends on what new information reveals)
- Village of Dolton v. First National Bank of Blue Island, 12 Ill. 2d 435 (Ill. 1957) (legislative purpose to provide merchantable tax titles and protect purchasers)
- Cherin v. The R. & C. Co., 11 Ill. 2d 447 (Ill. 1957) (legislative intent and rationale for tax-sale system)
- Schott v. Short, 131 Ill. App. 2d 854 (Ill. App. 1971) (false testimony by purchaser can warrant vacatur)
- S. I. Securities v. Powless, 403 Ill. App. 3d 426 (Ill. App. 2010) (tax deeds are intended to be virtually incontestable)
- Lofendo v. Ozog, 118 Ill. App. 3d 237 (Ill. App. 1983) (2‑1401 not meant to relieve parties from their own negligence)