First State Bank & Trust Co. v. Wolf

568 N.E.2d 89, 209 Ill. App. 3d 187, 154 Ill. Dec. 89, 1991 Ill. App. LEXIS 51
CourtAppellate Court of Illinois
DecidedJanuary 15, 1991
DocketNos. 1-88-2411,1-88-2536, 1-89-3467 cons.
StatusPublished
Cited by8 cases

This text of 568 N.E.2d 89 (First State Bank & Trust Co. v. Wolf) 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
First State Bank & Trust Co. v. Wolf, 568 N.E.2d 89, 209 Ill. App. 3d 187, 154 Ill. Dec. 89, 1991 Ill. App. LEXIS 51 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Petitioner First State Bank, the original legal title holder of the real property at issue in this case, succeeded in setting aside a tax deed issued to respondent Wolf and now seeks reversal of a ruling by the circuit court that it must reimburse respondent for the funds she expended in obtaining the deed. Respondent cross-appeals, arguing that the deed was valid; in the alternative, she claims that the trial court correctly found that reimbursement is required if her deed is invalid.

We are presented with the following issues on appeal: (1) whether the trial court erred in finding that respondent’s tax deed was invalid because of her failure to obtain and file a tax deed within one year of the expiration of the statutory redemption period; and (2) whether the trial court erred in requiring petitioner to reimburse respondent for the funds she expended in obtaining the deed.

On September 15, 1980, respondent’s assignor purchased a parcel of real property owned by petitioner and located in the City of Chicago at a tax sale conducted pursuant to the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 719 et seq.). Petitioner received proper notice advising it that the period of redemption would expire on September 14, 1983. On October 16, 1983, respondent filed an application for an order directing the county clerk to issue a tax deed. Although the parties do not address the reason for the delay, the application was not granted until September 14, 1984. A tax deed was issued and recorded on September 21,1984.

Petitioner attacked the tax deed through three different methods: (1) it filed a bill in chancery, which was dismissed without prejudice on April 25, 1986; (2) on July 7, 1986, it filed a petition to declare a deed void; and (3) a petition to vacate pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) was filed on August 7, 1986. Both petitions asserted that the tax deed was invalid because it was not filed and recorded within one year of the expiration of the statutory redemption period, as required by section 271 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 752). In an order entered July 13, 1988, the trial court denied petitioner’s section 2 — 1401 petition, but granted it relief based on the earlier petition. The tax deed was held to be null and void, and the petitioner was ordered to reimburse respondent in the amount of $37,265.73, the sum expended in obtaining the tax deed. Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) language was included in the order, since an issue of the respondent’s liability for rents she had collected on the property still remained before the trial court. A motion for reconsideration was filed by the respondent on August 9, 1988, in which she argued that the tax deed was not invalid and that she had not failed to comply with the requirements of section 271 of the Revenue Act. The motion was denied on August 10,1988.

Three notices of appeal have been filed in this case. The first was filed by the petitioner on August 5, 1988, contesting the trial court’s reimbursement ruling; however, it appears that this notice was not properly served on the respondent, who filed her own notice of appeal on August 12, 1988, disputing the trial court’s holding that the tax deed was invalid. In an order of this court entered October 20, 1988, the two appeals were consolidated, and the respondent’s appeal was ordered to stand as a cross-appeal. The third appeal was filed by respondent on December 15, 1989, and was taken from an order of the trial court dated December 7, 1989, holding respondent liable for $19,000 representing rents she had collected. This appeal was consolidated with the other two by an order of this court dated May 1, 1990. Inasmuch as the briefs filed by the parties to this consolidated appeal do not address the rents issue, that matter will not, pursuant to Supreme Court Rule 341(e)(7), be considered by this court. That rule states, of course, that “[pjoints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for re-he'aring.” 107 Ill. 2d R. 341(e)(7).

The trial court granted the petitioner’s request to invalidate respondent’s tax deed based on respondent’s failure to comply with section 271 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 752), which provides in pertinent part:

“Unless the holder of the certificate for real estate purchased at any tax sale under this Act takes out the deed in the time provided by law, and files the same for record within one year from and after the time for redemption expires, the certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null and void with no right to reimbursement. If the holder of such certificate is prevented from obtaining such deed by injunction or order of any court, or by the refusal or inability of any court to act upon the application for a tax deed, or by the refusal of the clerk to execute the same, the time he or she is so prevented shall be excluded from computation of such time.”

The parties do not dispute that the statutory redemption period in this case expired on September 14, 1983, and that the deed was not filed and recorded until September 21,1984.

An affidavit filed by respondent’s attorney states that “on or about August 15, 1984, he was charged with the responsibility” of proving the petition for the tax deed in this case. The trial judge was not sitting from August 20 through September 4, a period of 15 days. Although a hearing was held on September 10 and the judge was provided with all the necessary documentation by September 11, the judge did not order the clerk to issue a tax deed until September 14, three days later. Finally, the clerk did not issue the tax deed until September 21, seven days after receipt of the court order. Respondent contends that the one-year deadline should therefore be tolled by 25 days, since she was prevented from obtaining a tax deed for such period of time.

Respondent cites no supporting case law and is correct in her statement that there are no decisions interpreting the last sentence of that part of section 271 quoted above. However, although the statute speaks of the “refusal or inability” of the court to act on an application for a tax deed, and the. “refusal” of the clerk to act on the court’s order to issue a deed, it does not appear that respondent has encountered such difficulty here, but was merely faced with the ordinary delays incident to the processing of cases in the circuit court. Moreover, respondent fails to address why she did not even attempt to obtain a court order until the middle of August 1984, 11 months after the expiration of the statutory redemption period. Accordingly, we affirm the trial court’s holding that respondent’s tax deed was invalid for failure to comply with the pertinent statutory requirements.

As previously noted, the trial court ordered petitioner to reimburse respondent for the funds she expended in obtaining the tax deed based on section 270 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 751). This statute provides:

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Cite This Page — Counsel Stack

Bluebook (online)
568 N.E.2d 89, 209 Ill. App. 3d 187, 154 Ill. Dec. 89, 1991 Ill. App. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-state-bank-trust-co-v-wolf-illappct-1991.