2013 IL App (3d) 120999
Ill. App. Ct.2014Background
- Nomanbhoy purchased property at a 2008 tax sale, failed to file the statutorily required section 22-5 "take notice" with the county clerk, and mailed defective notices to the record owner (Salta). An amended redemption date was later granted by the court and the clerk sent official notices based on a section 22-10 filing. Nomanbhoy obtained a tax deed and recorded it in December 2011.
- Lincoln Title, the title insurer for an attempted sale of the property, filed a section 2-1401 petition (March 2012) seeking to vacate the order directing issuance of the tax deed (alleging fraud in procurement) and, alternatively, to declare the deed void under section 22-85 (failure to record within one year).
- Nomanbhoy moved to dismiss under section 2-619 for lack of standing; the trial court denied the motion and later granted Lincoln Title’s section 2-1401 petition on the ground the deed was procured by fraud (Nomanbhoy misrepresented compliance with statutory notice requirements).
- Nomanbhoy moved to reconsider and later filed an emergency motion under section 22-80(b) arguing Lincoln Title had not reimbursed the tax-deed grantee within 90 days as required; the trial court denied the emergency motion.
- On appeal the appellate court: affirmed denial of the motion to dismiss (finding Lincoln Title had standing as title insurer because it could have redeemed on behalf of the owner); held the tax deed was not void under section 22-85 (recording was within one year of the statutory redemption date as extended); affirmed vacatur under section 2-1401 for fraud; but reversed the denial of the emergency motion in part and remanded to order Lincoln Title to reimburse under section 22-80(b) and set a 90-day reimbursement period.
Issues
| Issue | Plaintiff's Argument (Lincoln Title) | Defendant's Argument (Nomanbhoy) | Held |
|---|---|---|---|
| Standing to bring section 2-1401 collateral attack | Title insurer has a cognizable interest and could redeem on behalf of owner; thus has standing. | Title insurer had no recorded interest and is a stranger to title; lacks standing. | Affirmed: Lincoln Title has standing as title insurer because it could redeem on behalf of the owner. |
| Deed void for failure to record within one year (35 ILCS 200/22-85) | The deed was recorded late because notices showed an earlier redemption date; deed therefore void. | Deed was recorded well within one year of the statutory redemption date (as extended); not void. | Rejected plaintiff’s §22-85 theory: recording complied with statutory timeline; deed not void on that ground. |
| Deed vacated for fraud in procurement (35 ILCS 200/22-45; §2-1401) | N/A (plaintiff sought vacatur alleging purchaser misrepresented compliance). | Nomanbhoy argued it did not procure deed by fraud and/or lacked opportunity to litigate merits below. | Affirmed vacatur: trial court correctly found Nomanbhoy procured deed by fraud by misrepresenting compliance with notice requirements. |
| Reimbursement under §22-80(b) after vacatur | §22-80(b) may not apply if deed void; otherwise plaintiff should not be required to pay because deed was invalidly issued. | If deed is vacated (not void from outset), the successful petitioner must reimburse within 90 days or the vacatur is denied with prejudice. | Remanded: court must determine reimbursement amount and give Lincoln Title 90 days to reimburse under §22-80(b); denial of emergency motion reversed in part. |
Key Cases Cited
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (discusses de novo review of section 2-619 motions)
- Powell v. Dean Foods Co., 2012 IL 111714 (standing doctrine; injury in fact to a legally cognizable interest)
- Miller v. Cook, 135 Ill. 190 (party entitled to redeem may challenge tax sale and seek to set aside deed)
- Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159 (distinguishes void judgments from errors/fraud occurring after court acquired jurisdiction)
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (section 2-1401 relief and when due-diligence showing is required)
- In re Application of the County Treasurer & ex officio County Collector (Choice Properties), 301 Ill. App. 3d 672 (title company’s redemption on behalf of owner and standing to act)
- People v. Vincent, 226 Ill. 2d 1 (standard of review for section 2-1401 rulings decided on pleadings)