DG Enters., LLC v. Cornelius

43 N.E.3d 1014

DG ENTERPRISES, LLC–WILL TAX, LLC, Appellant

v.Vincent F. CORNELIUS, as Independent Administrator of the Estate of Lorrayne M. Cornelius, Deceased, Appellee.

No. 118975.

Supreme Court of Illinois.

Dec. 3, 2015.

Timothy A. Clark and Thomas E. Cowgill, of Krockey, Cernguel, Cowgill & Clark, Ltd., of Joliet, for appellant.

George F. Mahoney, of Mahoney, Silverman & Cross, LLC, of Joliet, and Vincent F. Cornelius, of Wheaton, for appellee.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

¶ 1 The principal issues presented in this case are (1) whether an order issuing a tax deed is void and subject to collateral attack because of the failure to include the address and phone number of the county clerk in the publication and certified mail take notices that were required to be sent to the delinquent owner prior to the issuance of the tax deed, and (2) whether due process standards were violated where certified mail notices to the owner were return unclaimed. We answer both questions in the negative.

¶ 2 BACKGROUND

¶ 3 The petitioner, DG Enterprises, LLC–Will Tax, LLC, purchased the 2007 delinquent real estate taxes for the property commonly known as 716 Henderson Avenue, Joliet, Illinois, from the Will County collector at a public auction on November 6, 2008.

¶ 4 Section 22–5 of the Property Tax Code (Tax Code) provides that in order to seek a tax deed after the tax sale, the tax purchaser must deliver a “Notice of sale and redemption rights” (Take Notice I) to the county clerk to be given to the party in whose name the taxes were last assessed. 35 ILCS 200/22–5 (West 2008). This notice must be delivered to the county clerk within 4 months and 15 days after the tax sale, and the county clerk must mail the notice within 10 days of receipt by registered or certified mail. Id.

¶ 5 On February 4, 2009, in accord with requirements of section 22–5 of the Tax Code, the petitioner drafted and then requested that the Will County clerk send by certified mail the completed Take Notice I form to the respondent, Lorrayne M. Cornelius,¹ the owner of record and the party in whose name taxes were last assessed. The Take Notice I advises the party that his or her property has been sold for delinquent taxes, that redemption can be made until the specified date, and that a petition for tax deed will be filed by the tax purchaser if redemption is not made. Id.; In re Application of the County Collector, 225 Ill.2d 208, 212, 310 Ill.Dec. 890, 867 N.E.2d 941 (2007). Section 22–5 requires that the Take Notice I form be in at least 10 point type in the form set forth in the statute “completely filled in.” 35 ILCS 200/22–5 (West 2008). The petitioner filled in all of the required information for the Take Notice I except the address and phone number for the Will County clerk. The certified mail notice was returned by the post office unclaimed.

¶ 6 The redemption period before the tax sale was eventually extended to November 4, 2011. The petitioner ordered a title examination and a commitment for title insurance showing the necessary parties for tax deed. The examination and commitment for title insurance showed that title to the property in question was vested in Lorrayne M. Cornelius and also revealed the names of other persons interested in the property.

¶ 7 The Tax Code provides that “within 6 months but not less than 3 months prior to the expiration of the redemption period,” the tax purchaser may file a petition in the circuit court seeking an order directing the county clerk to issue a tax deed to the property if it is not redeemed from the sale. 35 ILCS 200/22–30 (West 2010). On July 6, 2011, within the applicable statutory time frame, the petitioner filed a petition for tax deed.

¶ 8 In order to receive an order issuing a tax deed, the redemption period must expire without any redemption taking place, and the tax purchaser must prove to the circuit court that it has strictly complied with the statutory notice provisions set forth in sections 22–10 through 22–25 of the Tax Code (35 ILCS 200/22–10 through 22–25 (West 2010)). 35 ILCS 200/22–30 (West 2010) ; In re Application of the County Collector, 225 Ill.2d at 213, 310 Ill.Dec. 890, 867 N.E.2d 941. Section 22–10 of the Tax Code provides for a second notice (Take Notice II) to be sent to the owners, occupants or parties interested in the delinquent property not less than three months or more than six months prior to the expiration of the period of redemption. 35 ILCS 200/22–10 (West 2010). The required format of the Take Notice II in section 22–10 is nearly identical to the Take Notice I in section 22–5 and both require the address and phone number of the county clerk to be filled in.

¶ 9 In addition to the Take Notice II in section 22–10, the Tax Code also requires in section 22–25 that the clerk of the circuit court of the county in which the property is located send a take notice by certified mail. 35 ILCS 200/22–25 (West 2010). Section 22–25 provides that the petitioner is to prepare and deliver to the clerk of the court the take notice under this section, which is to “be identical in form to that provided by Section 22–10.” Id.

¶ 10 Finally, the Tax Code provides that the petitioner is to “give the notice required by Section 22–10 by causing it to be published in a newspaper as set forth in Section 22–20. ” (Emphasis added.) 35 ILCS 200/22–15 (West 2010). Unlike section 22–25, which provides that the certified mail notice sent by the clerk of the court be “identical in form” to the section 22–10 Take Notice II, section 22–20 does not provide that the publication notice be in identical form to the section 22–10 Take Notice II. 35 ILCS 200/22–25, 22–20 (West 2010). Instead section 22–20 specifically lists the information the publication notice must contain and, among the criteria, the address and phone number of the county clerk is not listed. Specifically, section 22–20 provides that “[t]he publication shall contain (a) notice of the filing of the petition for tax deed, (b) the date on which the petitioner intends to make application for an order on the petition that a tax deed issue, (c) a description of the property, (d) the date upon which the property was sold, (e) the taxes or special assessments for which it was sold and (f) the date on which the period of redemption will expire.” 35 ILCS 200/22–20 (West 2010).

¶ 11 On July 6, 2011, the same day it filed its petition for tax deed, the petitioner placed the take notices required by section 22–25 for mailing with the clerk of the circuit court of Will County. The notice was sent by the clerk of the court by certified mail, and was mailed to “Lorrayne M. Cornelius, Melvin R. Cornelius and Occupants,” at the 716 Henderson Avenue address. Three attempted certified mailings were later returned unclaimed to the clerk by the postal service.

¶ 12 The petitioner also took additional steps to complete personal service on the respondent and all other interested parties. See 35 ILCS 200/22–15 (West 2010). The petitioner employed the services of a licensed process server who attempted 11 times to personally serve the respondent and all other interested parties on 9 different dates at different times of the day over a two and a half week period from July 19, 2011, through August 5, 2011. The process server's return states, “no contact * * * 11 attempts. Vehicle in driveway * * * outside storm doors locked * * * no one answers our inquiries at the door.” Further, the take notices required by section 22–10 were delivered to the county sheriff for mailing. The post office showed three different attempts of the certified mail notice on July 15, July 20 and July 30, 2011. All the certified mailings went unclaimed.

¶ 13 Newspaper publication of the notice for application of an order for tax deed was timely published in accordance with the requirements of section 22–20 of the Tax Code. The publication occurred in the Joliet Times Weekly, a newspaper of general circulation published in Joliet, Illinois.

The publication occurred three times after the petition for tax deed was filed: July 14, July 21 and July 28, 2011.

¶ 14 No redemption was made on or before the expiration date of November 4, 2011.

¶ 15 On November 17, 2011, a hearing was held on petitioner's application. Neither the respondent nor any other interested person appeared at the hearing. The petitioner presented testimony and an affidavit in support of its application for an order directing a tax deed to issue. The circuit court of Will County ordered issuance of a tax deed to petitioner, finding, among other things, the following:

“The person in whose name the real estate was last assessed for general taxes and the owners of and all other persons interested in that real estate are respondents to the Petition [of petitioner DG Enterprises] and have been duly and regularly notified of the pendency of the hearing on that Petition by service of notice hereof, all less than six months and more than three months prior to the expiration of the period of redemption, as extended, from that sale and all as provided by Sections 200/22–10, 22–15, 22–20, 22–25, and 200/22–30 of the Property Tax Code, as amended. Petitioner has given, or caused to be given, all notices required by law and by Sections 200/22–10, 22–15, 22–20, 22–25 and 200/22–30 of the Property Tax Code, as amended. Petitioner has given the notice required by Section 200/22–5 of the Property Tax Code, as amended.

* * * Petitioner has complied with all provisions of the law and of the statutes in such case made and provided and is entitled to receive a tax deed to that real estate.”

¶ 16 On March 14, 2012, the respondent filed an appearance through counsel and a combined motion to dismiss pursuant to sections 2–301 and 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–301, 2–1401 (West 2010)) and section 22–45(3), (4) of the Tax Code (35 ILCS 200/22–45(3), (4) (West 2010)). Respondent argued that petitioner...