Alvarez v. Pappas

870 N.E.2d 853, 374 Ill. App. 3d 39
CourtAppellate Court of Illinois
DecidedJune 4, 2007
Docket1-06-0098
StatusPublished
Cited by20 cases

This text of 870 N.E.2d 853 (Alvarez v. Pappas) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvarez v. Pappas, 870 N.E.2d 853, 374 Ill. App. 3d 39 (Ill. Ct. App. 2007).

Opinion

PRESIDING JUSTICE McBRIDE

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Cook County dismissing their first amended complaint pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5) (West 2004)). The circuit court held that plaintiffs’ claims for a return of duplicate real estate tax payments were barred by the five-year statute of limitations in section 20 — 175 of the Property Tax Code (the Code) (35 ILCS 200/20 — 175 (West 2004)). Plaintiffs appeal, contending that section 20 — 175 does not apply to their claims and that the circuit court therefore erred in dismissing their complaint. For the reasons that follow, we affirm.

Prior to setting forth the allegations in plaintiffs’ complaint, we find it helpful to review the following background information regarding real estate tax hilling procedures in Cook County. Defendant, the Cook County treasurer, is vested with the duty to bill, collect and disburse to the appropriate tax districts the general real estate taxes levied upon real estate in Cook County. 35 ILCS 200/20 — 85 (West 2004). By January 31 of each year, estimated tax bills setting out the first installment of property taxes for the preceding year, payable in that year, are prepared and mailed to the taxpayer by defendant. See 35 ILCS 200/21 — 30 (West 2004). The first installment of taxes on the estimated tax bills is computed at 50% of the total of each tax bill for the preceding year. 35 ILCS 200/21 — 30 (West 2004). By June 30 of each year, actual tax bills are prepared and mailed. These bills set out the total taxes due and the amount of estimated taxes billed in the first installment, and state the balance of taxes due for that year as computed by subtracting the amount of the first installment from the total taxes due that year. 35 ILCS 200/21 — 30 (West 2004).

On September 13, 2005, plaintiffs filed a six-count amended complaint against defendant alleging that they had made duplicate real estate tax installment payments and seeking a return of those payments. The amended complaint sought relief under the following theories: (1) conversion; (2) a violation of plaintiffs’ equal protection and due process guarantees; (3) unlawful taking without just compensation; (4) unjust enrichment; (5) the Illinois Uniform Disposition of Unclaimed Property Act (the Unclaimed Property Act) (765 ILCS 1025/0.05 et seq. (West 2004)); and (6) the Illinois State Employees Pension System.

In the amended complaint, plaintiffs alleged that defendant was the only treasurer in the State who refused to refund a duplicate real estate tax payment when the refund was requested more than five years after the duplicate payment was made. Plaintiffs asserted that defendant had no authority to collect, deposit, or disburse to tax districts any duplicate payments of real estate taxes, and that, for in excess of the past 15 years, defendant has engaged in policies and practices concerning those duplicate payments that were unauthorized by statute. Specifically, plaintiffs complained that defendant accepted and disbursed duplicate payments with knowledge that the relevant tax bill had already been satisfied, posted the duplicate payment on the official Collector’s Warrant Books as an additional payment and failed to credit duplicate payments of first installment bills to the second installment bill for that year’s taxes, refunded duplicate payments only when an application was submitted within five years of the date on which the duplicate payment was made, failed to give the recipient of a refunded duplicate payment any of the earnings made on such funds while in defendant’s possession, failed to provide adequate notice to taxpayers of their right to obtain a refund of duplicate payments, and failed to turn over any unclaimed duplicate payments to the State Treasurer. Plaintiffs also alleged that, as of August 1, 2005, defendant began to mail to taxpayers written notice of the existence of duplicate payments on their real estate tax bills and the manner in which such payments could be refunded.

As set out in the amended complaint, plaintiffs Santos Alvarez and Maria Perez Alvarez were billed for the first installment of their 1989 real estate taxes. The Alvarezes held a tax escrow account with Citibank, which disbursed funds from that account to pay the first installment on February 10, 1990. The Alvarezes also issued a check to defendant for the first installment on March 4, 1990. In July 1990, defendant issued the second installment on the Alvarezes’ 1989 real estate taxes. The Alvarezes paid this bill on August 6, 1990, and Citibank paid that same bill on August 11, 1990.

Plaintiff Phillip Douglas was a McDonald’s franchisee who was required to maintain a real estate tax escrow account with McDonald’s Corporation for payment of real estate taxes. Douglas paid the second installment of his 1998 real estate taxes on October 22, 1999, and McDonald’s Corporation also issued a check to defendant for the second installment on November 1, 1999.

Plaintiffs Andrew and Sophie Dratt held a mortgage on their condominium with Homeside Lending, which required the Dratts to maintain an escrow account held by Homeside for payment of real estate taxes. The Dratts received the second installment of their 1998 real estate taxes in September 1999. On November 1, 1999, Homeside tendered payment to defendant for that bill, and on November 4, 1999, the Dratts also issued a check to defendant for the second installment.

Plaintiff Faye Nazon failed to pay the 1994 real estate taxes on property that she owned, and those taxes were sold to a buyer in April 1996. Defendant issued the second installment on Nazon’s 1995 real estate taxes in August 1996, and Nazon paid that installment on October 9, 1996. On October 18, 1996, the buyer of Nazon’s 1994 real estate taxes also paid the second installment on Nazon’s 1994 real estate taxes. When Nazon subsequently redeemed her property from the 1994 tax sale on August 13, 1998, she was required to pay all of the real estate taxes levied upon her property that were paid by the tax buyer. This redemption included the buyer’s payment of the second installment of Nazon’s 1995 real estate taxes, resulting in a duplicate payment of that installment.

Count I of the amended complaint alleged that the duplicate payments were plaintiffs’ private property, that defendant permanently converted that property for her own benefit five years after the date the duplicate payments were made, and that such conversion damaged plaintiffs in the amount of each duplicate payment.

Count II alleged that defendant’s retention of the duplicate payments constituted a taking of plaintiffs’ private property without just compensation and a violation of plaintiffs’ equal protection and due process rights. Count III similarly alleged that defendant’s retention of plaintiffs’ private property constituted a taking without just compensation and a violation of section 1983 of the Civil Rights Act (see 42 U.S.C.

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Bluebook (online)
870 N.E.2d 853, 374 Ill. App. 3d 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-pappas-illappct-2007.