People ex rel. McGuire v. CorneliusPeople ex rel. McGuire v. Cornelius
Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.) In a tax deed case, the trial court propеrly vacated its order issuing a tax deed to petitioner, since petitioner failed to provide proper notice to respondent by omitting the address and telephone number of the county clerk on the take notice forms.
Decision Under Review Appeal from the Circuit Court of Will County, No. 11-TX-249; the Hon. Bobbi Petrungaro, Judge, presiding.
Counsel on Appeal Robert S. Krockey and Timothy Clark (argued), both of Krockey, Cernugel, Cowgill & Clark, Ltd., of Joliet, for appellant. George F. Mahoney (argued), of Mahoney, Silverman & Cross, of Joliet, and Vincent F. Cornelius, of Law Office of Vincent F. Cornеlius, of Wheaton, for appellee.
Panel PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion Justice Wright concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.
OPINION
¶ 1 Petitioner, DG Enterprises, LLC-Will Tax, LLC, appeals from an order of the trial court granting the combined motion of respondent, Estate of Lorrayne M. Cornelius, challenging personal jurisdiction under
¶ 2 The petitioner has filed a petition for rehearing noting a discrepancy in dates in the “facts” for prior proceedings and party designations. It also raises three issues with this court’s decision: (1) the court misapplied the requirements of
the petitioner of record and not the respondent. Thus the designations remain unaltered in this decision. The substance of the petitioner’s challenges to the court’s decision was fully addressed in the original opinion. For further clarification, we include identifying terms for the personal jurisdiction issue and a one-sentence elucidation of the court’s concurrent need for subject matter jurisdiction. The trial court’s ruling remains affirmed.
¶ 3 FACTS
¶ 4 The facts are undisputed. The petitioner purchased the 2007 delinquent real estate taxes for the property known as 716 Henderson Avenue, Joliet, Illinois, from the Will County collector at a public auction on November 6, 2008. On February 4, 2009, in accord with the requirements of
“For further information contact the County Clerk
ADDRESS: ..........
TELEPHONE: ........”
35 ILCS 200/22-5 (West 2010) .
The petitioner did not include this information in the prepared Take Notice I form sent to the respondent.
¶ 5 After extending the period for redemption from May 6, 2011, to November 4, 2011, as well as identifying other interested parties for the tax deed through a commitment for title insurance order, the petitioner filed its petition for tax deed. The petitioner then requested the county clerk send by certified mail a completed “Notice of Expiration of Period of Redemption” (Take Notice II) form to all of the known interested parties. The required format of Take Notice II in
¶ 6 The Take Notice II was sent by certified mail by the county clerk and the petitioner also took additional steps to complete personal service on the respondent and all other interested parties. The petitioner enlisted the services of a licensed process server who attempted 11 times to personally serve the respondent and all other interested parties. The petitioner also had the Take Notice II published in the Times Weekly in accordance with
¶ 7 No redemption from sale was made on or before November 4, 2011, thе expiration date.
¶ 8 On November 17, 2011, a hearing was held on the petitioner’s application. The trial court ordered issuance of a tax deed to the petitioner. Neither respondent nor any other person with an interest in the property appeared at the hearing.
¶ 10 On October 12, 2012, following a hearing, the court granted the respondent’s combined motion and vacated its previous order issuing the tax deed to the petitioner. The petitioner’s motion to reconsider was denied.
¶ 11 Petitioner appealed.
ANALYSIS
¶ 13 On appeal, the petitioner raises two arguments. First, it argues that the court did have jurisdiction to issue the tax deed to the petitioner even though the court found insufficient notice had been given to the respondent. Specifically, the petitioner asserts that this is an in rem rather than in personam proceeding requiring jurisdiction of the property rather than the respondent. Second, it argues that the respondent’s combined motion was insufficient for the relief granted by the trial court. The respondent counters that personal jurisdiction is required in tax deed proceedings and is secured through strict compliance with the Tax Code notice requirements. The respondent further argues that the notices of the tax deed sale and petition for issuance provided by the petitioner to the respondent were defective, rendering the tax deed issuance order void. Thus the respondent claims the combined motion was sufficient as a matter of law. We consider both issues.
Jurisdiction
¶ 15 Review of a trial court’s ruling on a matter concerning in personam jurisdiction is de novo, where the trial court held no evidentiary hearing on the motion attacking jurisdiction. Viktron Ltd. Partnership v. Program Data Inc., 326 Ill. App. 3d 111, 116 (2001). However, it is well settled that a tax sale is an in rem action. Smith v. D.R.G., Inc., 63 Ill. 2d 31, 35 (1976). A court acquires personal jurisdiction over the property or land after the county collector makes his application for judgment and order of salе. Id. See also In re Application of the County Collector, 397 Ill. App. 3d 535, 547 (2009) (hereinafter Devon); In re Application of the County Treasurer & ex-officio County Collector of Cook County, Illinois, for Order & Judgment of Sale of Lands & Lots Upon Which All or a Part of the General Taxes For 5 or More Years are Delinquent Pursuant to Section 235a of the Revenue Act of 1939, as Amended, 194 Ill. App. 3d 721, 724 (1990) (hereinafter Zadik). It is the personal jurisdiction over the land itself that gives the court the power to act. Novak v. Smith, 197 Ill. App. 3d 390, 395 (1990).
¶ 16 Consequently, the matter presented before the court requiring it to determine whether a party has been given the notice required by
¶ 17 Respondent claims that Devon’s in personam jurisdictional analysis is dispositive. Devon, 397 Ill. App. 3d at 548. It is, however, distinguishable on its facts and this court declines to extend it to include matters involving actual attempts of notice to the known property owner. In Devon, the court found that the property owner’s due process rights were violated because the tax deed petitioner failed to attempt or provide any notice whatsoever of the tax deed purchase or the property owner’s redemption rights. Id. The tax deed petitioner in that case did not conduct a diligent inquiry to ascertain the identity of all interested parties of the property. Id. at 545. He used a significantly insufficient and expressly unreliable tract search index, as well as conducted an expanded search of several lots instead of just the property in question. Id. at 546. This resulted in his failure to identify the property owner as an interested party and his subsequent failure to provide the property owner with notices required by the Tаx Code. Id. The court reasoned that because (1) a property owner has interest in the property for purposes of due process and (2) due process requires some notice prior to a governmental taking of an owner’s property, as well as the fact that (3) the statutory notices of the Tax Code do comport with due process, the trial court would have to acquire in personam jurisdiction when there is a total lack of notice. Id. at 548.
¶ 18 In the present case, the Will County collector ordered the property for sale and the property was purchased by the petitioner on November 6, 2010. The trial court acquired in rem jurisdiction over the property at issue when the Will County collector made an application for judgment and order of sale. The petitioner adhered to the requirements of the Tax Code in identifying the respondent as a party in interest through a commitment for title insurance order. It also attempted to serve the respondent with Take Notices I and II, as well as employed the use оf a licensed process server who attempted 11 times to personally serve the respondent. Notwithstanding the technical defectiveness of the Take Notices I and II, to be discussed later, in personam jurisdiction is not required in this case because the property owners were identified and reasonable attempts required by statute were made to serve them with notice.
¶ 19 The trial court’s finding that its order issuing a tax deed to the petitioner was void because it lacked in personam jurisdiction was erroneous; the defects in the notice did not divest the trial court of in rem jurisdiction to resolve the matter.
Sufficiency of Combined Motion
¶ 21 Moving now to address the petitioner’s challenge to the sufficiency of the combined motion, the respondent argues that she was not given proper notice of the property sale or her redemption rights because the petitioner did not include the county clerk’s address and phone number on Take Notices I and II in strict compliance with the Tax Code. Because of this failing under ¶ 22 Once the trial court has issued a tax deed to a tax deed petitioner it is incontestable except by direct appeal from the order directing the entry of the tax deed or by a petition pursuant to ¶ 23 In the case at hand, the trial court ruled on the section 2-1401 petition on the pleadings alone. Therefore, we review de novo whether the order issuing the tax deed was void and the section 2-1401 petition was properly granted.2 ¶ 24 A judgment is void when, inter alia, the court lacks jurisdiction over the subject matter or the parties. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). As previously noted, a void judgment may be attacked either directly or collаterally at any time. Id. ¶ 25 ¶ 26 This court reviews de novo the respondent’s argument that the notice was insufficient according to ¶ 27 The petitioner’s argument regarding the respondent’s deficiency in cоmplying with the general requirements of ¶ 29 The Tax Code requires the petitioner to provide notice to the property owner and other interested parties of the tax sale and the property owner’s redemption rights using detailed formats provided directly in the statute. ¶ 30 This court has previously noted and upheld the Tax Code requirement of strict compliance. In re Application of the County Treasurer & ex officio County Collector, 361 Ill. App. 3d 504, 507 (2005) (hereinafter H&H Investments). In H&H Investments, the tax deed petitioner failed to provide either proof of publication with a signed certificate of publication by the publisher or an authorized agent and to name the interested party in the publication as required by ¶ 31 Midwest Real Estate Investment is instructive regarding the requisite level of strict compliance when dealing with omitted information. Midwest Real Estate Investment, 295 Ill. App. 3d at 710. In that case, the tax deed petitioner omitted the first four digits of the tax sale certificate number, thereby failing to comply with the strict requirements of ¶ 32 In the present case, the petitioner did not include the address and phone number of the county clerk following the statement “For further information contact the County Clerk,” thus failing to strictly comply with the requirements of ¶ 33 Neither Take Notice I4 nor II was “completely filled in,” as required by ¶ 34 We affirm the trial court on the basis that the petitioner failed to provide proper notice to the respondent by omitting the address and phone number of the county clerk on the take notice forms. We decline to reach the parties’ additional arguments regarding the trial court’s ruling. ¶ 36 We find the trial court had jurisdiction to resolve this matter and affirm its order granting the respondent’s combined motion and vacating its order issuing the tax deed. ¶ 37 Affirmed. ¶ 38 JUSTICE SCHMIDT, dissenting. ¶ 39 I agree with the majority’s finding that the trial court had in rem jurisdiction over the subject property. This is where my agreement begins and ends. I would find that the technical defect did not render the tax deed void and that respondent’s section 2-1401 motion was insufficient. I would reverse the trial court. Therefore, I respectfully dissent. ¶ 41 Having determined that the trial court had in rem jurisdiction over the subject property, the majority gоes on to find that the tax deed is void. Supra ¶ 32. This is so, says the majority, due to petitioner’s failure to include the county clerk’s address and telephone number in the written notices, which respondent claimed she never received. ¶ 42 The majority cites no authority to support its holding that a technical defect renders the tax deed void, nor have I uncovered any. In fact, once a trial court acquires jurisdiction over the land, any subsequent challenge to the issuance of the tax deed renders its order voidable, not void. Vulcаn Materials Co. v. Bee Construction, 96 Ill. 2d 159, 165 (1983); see also In re Application of the County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Non-Payment of General Taxes & Special Assessments for the Year 1983 & Prior Years, 206 Ill. App. 3d 22, 27 (1990). S.I. Securities v. Powless, 403 Ill. App. 3d 426, 444 (2010), held that minor mistakes do not render a tax deed void. The court stressed that the incorrect description of the property contained in the notice, at most, rendered the tax deed voidable, not void. Id. ¶ 43 The government and homeowner hold competing interests with regard to collateral attacks upon tax deed orders. In re Application of the County Collector, 217 Ill. 2d 1, 17 (2005). As the majority identifies, the main purpose of the tax deed process is to compel delinquent homeowners to pay taxes. In re Application of the County Collector, 295 Ill. App. 3d 703, 710 (1998). Marketable tax deeds aid the government in collecting taxes where the homeowner fails to pay them. Killion v. Meeks, 333 Ill. App. 3d 1188, 1193 (2002). However, the forced sale of a home can have serious consequences for the delinquent taxpayer; thus, a collateral attack affords the delinquent homeowner an opportunity to ensure that the order was properly obtained. Mary Lowe, 217 Ill. 2d at 17. ¶ 44 The majority’s holding that a technical defect voids tax deeds and thus subjects them to collateral attack at any time (Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002)) will destroy the marketability of tax deeds. Query: What rational person would buy a tax deed knowing that any technical deficiency in the notice renders the deed void and subject to attack at any time? This reality did not escape the attention of the General Assembly, ergo, ¶ 46 The majority finds that respondent’s petition is exempt from the generаl requirements of ¶ 47 “§ 22-45. Tax deed incontestable unless order aрpealed or relief petitioned. Tax deeds issued under Section 22-40 are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Sections 2-1203 or 2-1401 of the Code of Civil Procedure in the same manner and to the same extent as may be had under those Sections with respect to final orders and judgments in other proceedings. The grounds for relief under Section 2-1401 shall be limited to: (1) proof that the taxes were paid prior to sale; (2) proof that the property was exempt from taxation; (3) proof by clear and convincing evidence that the tax deed had been procured by fraud or deception by the tax purchaser or his or her assignee; or (4) proof by a person or party holding a recorded ownership or other recorded interest in the property that he or she was not named as a party in the publication notice as set forth in Section 22-20, and that the tax purchaser or his or her assignee did not make a diligent inquiry and effort to serve that person or party with the notices required by Sections 22-10 through 22-30.” (Emphasis added.) ¶ 48 Respоndent failed to allege any of the four grounds for relief in the section 2-1401 petition. It is clear from the record that respondent had not paid the taxes prior to the sale of the property and that the property was not exempt from taxes. Respondent requested that the court grant relief under sections 22-45(3) and (4), but failed to support either ground. The petition did not include any allegations regarding fraud or deception; thus respondent did not satisfy grounds for relief under section 22-45(3). Respondent’s failure to allege that рetitioner did not name her in the notice prevented respondent from establishing grounds for relief under section 22-45(4). Conspicuously absent from section 22-45 is the basis relied upon by the majority: a failure to provide the name and phone number of the county clerk in the take notice. ¶ 49 Furthermore, respondent failed to comply with even the general requirements under ¶ 50 I find that respondent’s section 2-1401 petition is insufficient on its face. Therefоre, I would reverse the trial court’s ruling. ¶ 51 For the foregoing reasons, I respectfully dissent.CONCLUSION
The Tax Deed Is Not Void
Section 22-45: Insufficiency of Petitioner’s Combined Motion