2014 IL App (4th) 130261
Ill. App. Ct.2014Background
- In Jan 2008 Ballinger purchased 2006 taxes on a 40-acre Douglas County farm and obtained a tax deed in 2010 after publication and certified-mail efforts. Notices to some named persons were returned undeliverable. Ballinger filed affidavit claiming diligent inquiry of county records.
- Gertrude Jones (d. 1946) devised a life estate to Cecily with remainder to her "grandchildren." Cecily died in 1984, vesting remainder interests in the grandchildren class (which included Nancy). Family lines: Nancy is a granddaughter (via Melville); Joan (d. 2011) and William are other grandchildren; Clifford and the Moores are later descendents/occupants.
- In Sept. 2011 respondents (Moores and Cliff & Nancy Jones) filed a 2-1401 petition to set aside the tax deed, alleging they held recorded interests and received no proper notice. They produced affidavits that no owner received notice and that Clifford farmed the land and William received tax bills as convenience.
- Ballinger moved to dismiss, arguing Nancy had no recorded interest in the recorder of deeds office (she wasn’t named in the will), he had conducted the required search, and publication cured defects. The trial court denied dismissal, finding Nancy’s interest vested in 1984 and Ballinger’s inquiry was inadequate.
- The trial court granted respondents’ summary-judgment motion (Mar. 2013), set aside the tax deed for failure to make a diligent inquiry and properly serve interested parties, and remanded to fashion relief consistent with the Property Tax Code.
Issues
| Issue | Ballinger's Argument | Respondents' Argument | Held |
|---|---|---|---|
| Whether a person whose interest appears in public records other than the recorder of deeds has a "recorded ownership or other recorded interest" under 35 ILCS 200/22-45(4) | "Recorded" means only interests shown in the recorder of deeds office; wills not naming the individual do not create a recorded interest | Wills probated and in public records can show an ascertainable interest; class gifts ("grandchildren") included Nancy | Court: "recorded" includes interests inferable from public records (probate, etc.); Nancy had a recorded interest |
| Whether Ballinger made a "diligent inquiry" to locate and serve interested parties as required by the Property Tax Code | He performed the statutorily-required search of county records and published notice; no rule required exhaustive personal inquiries or contacting neighbors | Ballinger failed to check probate/family lines, did not follow up on undelivered certified mail, did not contact William or the farmer, and did not use readily available sources | Court: Ballinger’s efforts were de minimis and not a diligent inquiry; summary judgment for respondents affirmed |
| Whether publication alone cures defective personal notice where owner is ascertainable from public records | Publication suffices when owners are unknown | Publication does not cure failure to make diligent inquiry when owner is ascertainable and actual notice could have been reasonably obtained | Court: Publication does not cure failure to make diligent inquiry (citing Jones v. Flowers) |
| Relief required after vacating tax deed | Ballinger argued limited relief or that proceedings were adequate | Respondents sought vacation of deed and compliance with statutory refund/repayment provisions | Court affirmed vacation and remanded to amend order to comply with 35 ILCS 200/22-80 (declare sale error and direct refund) |
Key Cases Cited
- In re Application of the County Treasurer, 347 Ill. App. 3d 769 (recognizing Property Tax Code’s remedial notice purpose)
- Clark v. Leavitt, 335 Ill. 184 (probate records are part of county records and probate of a will is constructive notice)
- Jones v. Flowers, 547 U.S. 220 (publication does not cure defective mailed notice when owner is ascertainable and additional steps were reasonable)
- Shockley v. Good, 13 Ill. 2d 298 (definition of "diligent inquiry" in tax-sale context)
- In re Application of the County Collector, 225 Ill. 2d 208 (explaining limits and duties of tax purchasers regarding notice and inquiry)