In re Application of the County Collector

797 N.E.2d 1122, 343 Ill. App. 3d 363, 278 Ill. Dec. 204, 2003 Ill. App. LEXIS 1249
CourtAppellate Court of Illinois
DecidedOctober 2, 2003
Docket2-02-1076 Rel
StatusPublished
Cited by17 cases

This text of 797 N.E.2d 1122 (In re Application of the County Collector) 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
In re Application of the County Collector, 797 N.E.2d 1122, 343 Ill. App. 3d 363, 278 Ill. Dec. 204, 2003 Ill. App. LEXIS 1249 (Ill. Ct. App. 2003).

Opinion

PRESIDING JUSTICE HUTCHINSON

delivered the opinion of the court:

Petitioners, Kevin Bloom and Steven Levin, appeal from the trial court’s order dismissing with prejudice their petition for indemnity-pursuant to section 21 — 305 of the Property Tax Code (35 ILCS 200/ 21 — 305 (West 2002)). They also appeal from the court’s order denying their motion to reconsider. We affirm the order of dismissal, but reverse the order denying the motion to reconsider to the extent that it did not modify the dismissal with prejudice.

On March 28, 2002, petitioners filed a petition for indemnification from the fund (the fund) held by respondent, the Lake County treasurer, which exists to indemnify qualified persons who have lost properties due to issuance of a tax deed. The petition contained the allegations that follow. Bloom was the owner of record of the property at 34 S. Elmwood Avenue, Waukegan (the property), from “before 1996 through February 28, 2002.” Levin was a co-owner of the property by virtue of a deed made by Bloom at some unidentified time before December 6, 2001. Levin was a “veteran of the Vietnam conflict and a decorated and distinguished soldier with two medals of valor and two purple hearts [who] suffer[ed] from significant disabilities as a result of gun shot wounds to his right arm and leg during his service.” His disabilities “sometimes hampered [him] in his ability to attend to these matters.”

Petitioners paid all property taxes due for the property through December 1997, but made no payments after that date until December 6, 2001, when they attempted to redeem the property. ML Agents purchased the delinquent taxes for all years in question. The period for redemption of the sold taxes expired on December 6, 2001. On that date, petitioners arranged to have a cashier’s check for $13,000 sent by certified mail to the Lake County collector. Petitioners believed that the mailing of this check' sufficed to preserve their interest in the property, although they now concede that it was mailed a day too late for compliance with redemption requirements. Their belief was the result of their reliance on the language in the notice they received that stated that “ ‘Redemption can be made any time on or before December 6, 2001 ***.’ ” (Emphasis added.) On February 28, 2002, the trial court, over petitioners’ objections, issued a tax deed for the property to ML Agents. This, and other circumstances, precluded them from seeking relief from the issuance of the tax deed.

Respondent moved for dismissal of the petition pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2— 615 (West 2002)). He alleged that the petition was defective in that it failed to plead that the property contained four or fewer units. The motion also contained a listing of other allegations petitioners did not plead. For instance, it stated that the petition did not allege that $13,000 would have been sufficient to make the redemption. It also noted that petitioners’ exhibit A shows that the check by which they attempted the redemption was payable to “Lake County Collector” and was issued to “Gerry Goldman,” but that the petition neither refers directly to Goldman nor explains his role. The motion further argued that petitioners’ attempted mode of redemption was “negligent and at fault as a matter of law,” because the law governing redemption states that a payment is timely only if it either is delivered in person or is mailed no later than one day before the expiration of the redemption period. The motion argued that petitioners’ belief that their redemption method was proper was “incredible” because the notice sent to them states that a person can redeem a property “by applying to the County Clerk of Lake County, Illinois, at the County Courthouse in Waukegan, Illinois.”

Finally, the motion argued that petitioners had failed to allege facts showing that they were equitably entitled to relief; nothing in the petition explained why Levin had taken no action before the redemption date, other than a general allegation that Levin had disabilities that “sometimes hampered [him] in his ability to attend to these matters.” It further pointed out that the petition provided no explanation of why Bloom was unable to attend to the taxes. It cited McClandon v. Rosewell, 299 Ill. App. 3d 563 (1998), for the proposition that the legislature did not design the fund to compensate property owners who have “contribute[d] to the loss of their property.” It then claimed that to compensate petitioners would amount to “tacit approval of conduct which is naive and fiscally irresponsible,” which would be contrary to the requirement of In re Application of Kane County Collector, 135 Ill. App. 3d 796 (1985).

In their brief on respondent’s motion, petitioners argued that respondent was urging the wrong standard upon the trial court, but also alleged their ability to amend the petition to address some flaws cited by respondent. The trial court heard oral argument on the motion, granted it, and made the dismissal with prejudice. The order of dismissal stated that “ [petitioners have failed to allege facts that would rise to the level of relief [sic] under the Indemnity Fund if proven, and amendment would not cure [the] defects found.”

Petitioners moved to reconsider the dismissal. The motion alleged that, at oral argument on the motion to dismiss, the trial court was concerned with whether the property had four or fewer units and whether petitioners had tendered funds sufficient to redeem the property. It stated that petitioners could prove that the property contained a single-family house and that the check tendered was for more than the taxes due. It further alleged that “the Court’s primary concern at the time of the hearing was the question regarding the mental and physical condition of Co-Petitioner, KEVIN BLOOM, it having been established that Co-Petitioner, STEVEN LEVIN, was suffering from mental and physical disabilities. For that reason, the Court dismissed the Petition with prejudice and did not permit the Petitioners an opportunity to amend.” Finally, the motion alleged that “[s]ubseqent to the hearing, Counsel for the Petitioners has learned that KEVIN BLOOM suffers from recognized disabilities such that he, KEVIN BLOOM, is unable to handle matters such as paying a tax bill and requires STEVEN LEVIN, whose disabilities are not as severe as those suffered by KEVIN BLOOM, to be the only person among the Petitioners capable of handling such matters.”

Petitioners argued that, under Hedrick v. Bathon, 319 Ill. App. 3d 599 (2001), their disabilities could establish their equitable claim for indemnity. They further argued that the trial court had apparently engaged in a premature weighing of the facts regarding their disabilities, and that the trial court had determined that petitioners were at fault, a matter that is not a necessary consideration when the award requested is less than $99,000.

Both parties filed briefs, and, after argument, the trial court denied petitioners’ motion. The order states that the denial is “based on the Court’s weighing of the equities and finding that the dismissal was proper.” No transcript or other record of this hearing is part of the record on appeal.

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Bluebook (online)
797 N.E.2d 1122, 343 Ill. App. 3d 363, 278 Ill. Dec. 204, 2003 Ill. App. LEXIS 1249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-application-of-the-county-collector-illappct-2003.