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 v. Community Partners, LLC and FNA Cardinal 09, LLC, Respondents-Appellees).
Docket No. 1-13-3693
Appellate Court of Illinois, First District, Third Division
May 13, 2015
2015 IL App (1st) 133693
Illinois Official Reports
Appellate Court
In re Application of the County Treasurer & ex officio County Collector, 2015 IL App (1st) 133693
Appellate Court Caption: 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 v. Community Partners, LLC and FNA Cardinal 09, LLC, Respondents-Appellees).
District & No.: First District, Third Division, Docket No. 1-13-3693
Filed: May 13, 2015
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2011-COTD-4316; the Hon. Robert W. Bertucci, Judge, presiding.
Judgment: Affirmed.
Counsel on Appeal:
Terry J. Carter and Eric H. Wudtke, both of Carter Legal Group, P.C., of Chicago, for appellees.
Panel: JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
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) (
¶ 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.
¶ 3 BACKGROUND
¶ 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
¶ 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 (
¶ 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 (
¶ 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 (
¶ 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
¶ 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, and February 29, 2012.
¶ 12 On December 28, 2011, the sheriff served notice on TCF National Bank at a branch located at 29 E. Madison Street, Chicago, by serving Breanna Foster, who was authorized to accept service on the bank‘s behalf. (The appellees acknowledge the loan documents provided for service to be made at TCF‘s consumer lending department in Lombard, Illinois, but they contend that Illinois law does not require service on a corporation at the location listed on a mortgage or other document.)
¶ 13 The property was not redeemed from the tax sale, and on June 26, 2012, FNA filed its application for an order directing the county clerk to issue a tax deed. On August 15, 2012, FNA conducted an ex parte prove-up hearing. At that hearing Audrey Myers, counsel for FNA, stated, in part, that “the notices sent pursuant to section 22-10 of the Property Tax Code were served to all interested parties in this case.” The trial judge took the matter under advisement.
¶ 14 After the hearing, FNA assigned its ownership interest in the certificate of purchase to Community Partners, LLC. On October 26, 2012, the circuit court entered an order substituting Community Partners as the petitioner in the tax deed and entered an order directing the county clerk to issue a tax deed to Community Partners. The tax deed was recorded with the Cook County recorder of deeds, and on December 19, 2012, Community Partners evicted the Negrons from the property.
¶ 15 On July 23, 2013, TCF Bank and Minerva Negron filed an amended petition under section 2-1401 of the Code (
¶ 17 The court also rejected the argument that FNA‘s service on TCF Bank in Chicago rather than at the address listed on the mortgage was not proper and found that with regard to attempted service on the Negrons, “due process was complied with” given the two attempts by the sheriff, the numerous mailings, and the certified mailings that went unclaimed, which created a presumption that the notice required under the Property Tax Code was received. Appellants’ motion to reconsider was denied.
¶ 18 ANALYSIS
¶ 19 As a preliminary matter, we note that appellants’ brief does not contain an appendix with a copy of the judgment appealed from, findings of fact or memorandum opinions issued by the circuit court, relevant pleadings, or a complete table of contents of the record on appeal as required by Illinois Supreme Court Rule 341(h)(9) (eff. Feb. 6, 2013) and Illinois Supreme Court Rule 342(a) (eff. Jan. 1, 2005). Supreme court rules are not mere suggestions; they are rules to be followed. In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. “Where an appellant‘s brief fails to comply with supreme court rules, this court has the inherent authority to dismiss the appeal.” Epstein v. Galuska, 362 Ill. App. 3d 36, 42 (2005). In addition, this court may strike an appellant‘s brief for noncompliance with Rule 341. See People v. Thomas, 364 Ill. App. 3d 91, 97 (2006). We note, however, that striking a brief or dismissing an appeal for failure to comply with supreme court rules is a harsh sanction. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005). Thus, we will consider the merits of this appeal based on the brief presented, but we caution appellants’ counsel to be more diligent in complying with the rules of our supreme court in the future.
¶ 20 A. Fraud
¶ 21 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the claim. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 570 (2002). Affirmative matter “refers to something in the nature of a defense that negates the cause of action
¶ 22 Once the circuit court has issued a tax deed, under the Property Tax Code (
¶ 23 Section 22-45(3) of the Property Tax Code permits a section 2-1401 collateral attack on the issuance of a tax deed where there is “proof by clear and convincing evidence that the tax deed was had been procured by fraud or deception by the tax purchaser or his or her assignee.”
¶ 25 Appellants contend that as in HomeSide, the tax purchaser engaged in fraud when its attorney, Audrey Myers, told the trial court at the ex parte prove-up hearing that “notices sent pursuant to section 22-10 of the Property Tax Code were served to all interested parties.” Appellants assert that although notices were sent, they were never, in fact, served on the Negrons, who, despite FNA‘s efforts, never actually received notice. Appellants contend, therefore, that regardless of whether attorney Myers intentionally made a false statement to the trial court, her statement, like the lawyer‘s statement in HomeSide, amounted to fraud and, thus, the trial court erred in dismissing their section 2-1401 petition. Further, appellants assert that FNA submitted several documents to the trial judge falsely stating that the house was vacant, when, in fact, the Negrons were living there at that time. Appellants contend that if the trial court had known at the prove-up hearing that neither of those statements was accurate, it likely would not have issued a tax deed.
¶ 26 Although this case is factually similar to HomeSide, an important distinction calls for a different result. At the hearing on petitioners’ section 2-1401 petition, the trial judge stated when he entered the order directing the county clerk to issue a tax deed to Community Partners he knew that FNA had attempted to personally serve the Negrons by certified mail, sheriff‘s service, and regular mail, but had not been able to actually serve them. Specifically, the trial judge stated, “I did not believe [attorney Myers‘s statement] to mean that parties were actually served.” Then, in discussing his procedures in tax deed proceedings, the judge stated:
“I check the sheriff‘s returns [to] see how many times they went out ***. I check certified mail. *** [I]n this case, you know, at least two attempts were made in the notice serving period to personally serve the Negrons and repeated certified mails by clerks and sheriffs [that] were unclaimed by them. So[,] it‘s not as if I took that to mean that they were actually served. So[,] the court wasn‘t buffaloed and I don‘t think that was the purpose of it, either. Because it didn‘t say, you know, we served everybody and let me recite to
you that they were served on so and so date.”
¶ 27 In short, the trial judge stated that he had prepped for the prove-up hearing and recalled the facts he relied on at that hearing in deciding to issue a tax deed, and he did not think there was fraud, even in the broad sense. Thus, because appellants have not raised any issues the trial court was not aware of at the time it entered the order for a tax deed, no grounds exist for finding that those facts might change the court‘s rulings and thus, no fraud.
¶ 28 In their section 2-1401 petition, appellants also contend FNA fraudulently failed to disclose to the trial court that they served TCF National Bank at a branch in Chicago rather than at TCF‘s consumer lending department in Lombard, Illinois, which is the address listed on the mortgage documents. We again disagree. Section 2-204 of the Code of Civil Procedure provides that a “private corporation may be served *** by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State.”
¶ 29 B. Due Process
¶ 30 Next, appellants contend they were deprived of their interest in the property without due process of law under the fourteenth amendment to the United States Constitution (
¶ 31 The Property Tax Code contains specific methods of notice to which a tax purchaser must adhere to obtain a tax deed. After a tax sale, the tax purchaser must deliver a notice to the county clerk to be given to the party in whose name the taxes were last assessed.
¶ 32 The tax purchaser must send a second take notice to the owner, occupants, and interested parties not less than three months or more than five months before the expiration of the period of redemption.
¶ 33 Service of the take notice may be made in one of three ways: (i) personally by the sheriff; (ii) by registered or certified
¶ 34 Of relevance here is section 22-15 of the Property Tax Code. Appellants contend FNA violated their due process rights in serving the section 22-15 notice, because they never actually received notice of the tax sale. Section 22-15 provides, in relevant part:
“The purchaser or his or her assignee shall give the notice required by Section 22-10 by causing it to be published in a newspaper as set forth in Section 22-20. In addition, the notice shall be served by a sheriff *** of the county in which the property, or any part thereof, is located *** upon owners who reside on any part of the property sold by leaving a copy of the notice with those owners personally.
***
If any owner or party interested, upon diligent inquiry and effort cannot be found or served with notice in the county, then the person making the service shall cause a copy of the notice to be sent by registered or certified mail, return receipt requested, to that party at his or her residence, if ascertainable.”
35 ILCS 200/22-15 (West 2012).
¶ 35 Contrary to appellants’ contention, however, due process does not require actual notice before the government may take an owner‘s property. See, e.g., Jones v. Flowers, 547 U.S. 220, 226 (2006). Instead, notice must be ” ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In Jones, before the property owner‘s taxes were sold, the Arkansas Commissioner of State Lands (Commissioner) tried to notify the owner of the tax delinquency and his right to redeem by sending a certified letter to the owner of the property. Jones, 547 U.S. at 223. The certified letter was returned to the Commissioner as “unclaimed.” (Internal quotation marks omitted.) Id. at 224. More than two years later, the Commissioner mailed another certified letter to the owner in an attempt to notify him that his house would be sold if he did not redeem his taxes. Id. The taxes were not redeemed, and the property was sold. Id. The Supreme Court held that that the Commissioner‘s efforts to notify the property owner of the tax sale did not satisfy due process. Id. at 229. The Court stated that it did not “think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed.” Id. The Court held that on receiving the returned form suggesting that Jones had not received notice
¶ 36 Our supreme court‘s decision in Lowe, which reconsidered what constitutes “adequate notice” in a pending tax sale on remand from the United States Supreme Court in light of Jones, illustrates the type of effort a tax purchaser must make to satisfy due process requirements. In Lowe, Mary Lowe purchased her home in Chicago in 1977. Lowe, 225 Ill. 2d at 211. In 1993, she quitclaimed the property to herself and William Austin, who died the next year. Id. Taxes were paid on the home until 1992, when the assessment for 1991 became delinquent. Id. At a tax sale in 1993, the tax purchaser, Apex Tax Investments, Inc., acquired the property for $347.61, representing the past due taxes, interest, penalties, and fees. Id. at 213. On October 5, 1995, Apex filed a petition for a tax deed to the property. The redemption period expired on February 21, 1996, and when the taxes were not redeemed, Apex proceeded to an ex parte hearing. Id. at 214. At that hearing, Apex‘s attorney testified to the steps Apex took to comply with the statutory notice provisions in sections 22-10 through 22-25 of the Property Tax Code. Apex performed a tract search, which indicated Mary Lowe and William Austin owned the property. Apex directed the sheriff to personally serve notice of the sale on Lowe, Austin, and ” ‘occupant’ ” at the subject property. In the returns of service, the sheriff indicated ” [h]ouse vacant per neighbors” and ” ‘MOVED.’ ” Id. The sheriff also sent a copy of the notice by certified mail to Lowe, Austin, and “occupant” at the property address, which were returned to the sheriff and stamped, ” ‘return to sender.’ ” Id. at 215. The returned envelope addressed to Austin included a handwritten notation ” ‘deceased,’ ” and the envelopes addressed to Lowe and to ” ‘occupant’ ” included the handwritten notation ” ‘[p]erson is [h]ospitalized.’ ” Id. at 214-15.
¶ 37 In addition to the attempts to directly notify Lowe and Austin, Apex personally served notice on a bank holding a recorded mortgage on the property and successfully mailed a copy of that notice to the law firm that had prepared the 1993 quitclaim deed. Id. at 215-16. Apex officials also testified that the company had attempted to locate current addresses for both Lowe and Austin by checking city and suburban phone books, as well as voter registration records. Id. at 216. Apex hired an investigator who testified that he personally visited the property in late fall 1995 and that the house appeared to be uninhabited with no furniture visible through the living-room window. The investigator also testified that a neighbor told him that no one was currently living there. Id.
¶ 38 On this evidence, the circuit court issued a tax deed to Apex in May 1996, and Apex sold the property to a third party in early December 1996. Id. In September 1997, two of Mary Lowe‘s sons filed an action to restore title to the property. Id. at 217. Their petition asserted that their mother had been in and out of mental institutions for decades and, specifically, that she had been in a mental health facility from August 26, 1995 through December 17, 1996. Id.
¶ 40 On the initial appeal, the supreme court rejected the guardian‘s arguments and held that the efforts at notice were constitutionally adequate. The guardian then sought review by the United States Supreme Court, which remanded the case following its decision in Jones. After additional briefing to address Jones, the Illinois Supreme Court, on further consideration, reaffirmed its initial decision, both distinguishing Jones factually and concluding that Apex‘s efforts to serve notice on Lowe sufficiently met the additional steps under Jones and, in fact, had “exceeded those suggested by the Jones Court as reasonable.” Id. at 229. The court noted that, unlike in Jones, where the state did nothing for two years after its notice to Jones was returned unclaimed, Apex “did take numerous additional steps to notify Lowe that her property had been sold and that a petition for tax deed had been filed.” Id. at 228. The court rejected the argument that Apex was required to perform an “open-ended search” for Lowe‘s whereabouts given that the return of service indicated the property was vacant and the owner had moved, and the purchaser had checked city and suburban phone directories and voter registration records. Id. at 231. The court concluded that under those circumstances, Apex need not conduct a more thorough investigation and Lowe was not constitutionally entitled to more diligent inquiry. Id.
¶ 41 Appellants suggest that under Jones, FNA should have done more to ensure that the Negrons received actual notice of the tax deed proceeding and their right to redeem and that the sheriff‘s two attempts at service and the unclaimed certified and regular mailing did not satisfy constitutional due process. We disagree and find that FNA‘s attempt to notify the Negrons of the tax sale were sufficient because they were reasonably calculated, under all the circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections. FNA‘s efforts at serving notice on the appellants were more closely analogous to the numerous steps taken in Lowe than those in Jones, where the tax purchaser simply sent one certified letter to the owner at the property address which went unclaimed. FNA conducted a tract search to determine the name of the owners of the property and conducted a LexisNexis Accurint database search that indicated that the Negrons resided at 4820 S. Keeler Avenue. At FNA‘s direction, the sheriff tried but was not able to serve the Negrons at the Keeler address on January 7, 2012, on Jose Negron on March 4, 2012, and on Minerva Negron on March 7, 2012. The Negrons contend that notice served at the Keeler address to be irrelevant to the due process inquiry because they were living at 6435 S. Sacramento Avenue at that time. But the sheriff also tried, unsuccessfully, to serve notice on the Negrons
¶ 42 Although, as in Jones and Lowe, none of the steps FNA took in trying to give notice to the Negrons were successful, they were reasonably calculated to apprise them of the tax deed proceeding. Thus, the trial court did not err in dismissing the section 2-1401 petition on due process grounds.
¶ 43 We also note, as the trial court did, that appellants’ interpretation of the notification provisions of the Property Tax Code, i.e., that a tax purchaser must ensure that a property owner receives actual notice, is impractical and would, in essence, permit an owner occupant to prevent a tax deed petitioner from ever obtaining a tax deed by simply avoiding personal service. As the trial court stated, under this reading of the statute, “[T]he sheriff can go out ten times. And the people could sit there and the doorbell is ringing and make faces at the sheriff and not be served. And the sheriff goes up 20 times, 50 times, and they can stand there, laugh at the sheriff, not open their door, and then someone cannot get a tax deed?” In addition, appellants’ contention would make the Act‘s publication provision a meaningless gesture, contrary to a general rule of statutory construction. In re Application of the County Collector, 356 Ill. App. 3d 668, 670 (2005) (a statute should be construed, if possible, so that no part is rendered superfluous or meaningless). Neither the statute nor the due process provisions of the United States and Illinois constitutions require the interpretation of appellants.
¶ 44 CONCLUSION
¶ 45 While we recognize that this result may seem rather harsh, we can find no basis for concluding that appellees engaged in fraud in acquiring the tax deed or violated appellants’ due process rights as those rights have been enunciated by the United States and Illinois Supreme Courts. Accordingly, we affirm the trial court order dismissing, with prejudice, appellants’ section 2-1401 petition.
¶ 46 Affirmed.