In re Application of the County Treasurer

2013 IL App (3d) 120999, 999 N.E.2d 748

• Court: Appellate Court of Illinois
• Decided: October 16, 2013
• Docket: 3-12-0999
• Status: Unpublished

Opinion

2013 IL App (3d) 120999

Opinion filed October 16, 2013

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2013

In re APPLICATION OF THE COUNTY ) Appeal from the Circuit Court TREASURER AND ex officio COUNTY ) of the 12th Judicial Circuit, COLLECTOR OF WILL COUNTY, ) Will County, Illinois ILLINOIS, for Judgment and order of Sale ) Against Lands and Lots Returned Delinquent ) for Nonpayment of General Taxes for the ) Year 2007 ) ) (Lincoln Title Company, ) Appeal No. 3-12-0999 ) Circuit No. 10-TX-324 Petitioner-Appellee, ) ) v. ) ) Nomanbhoy Family Limited Partners, ) ) Respondent-Appellant). ) Honorable ) Barbara N. Petrungaro, ) Judge, Presiding.

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion.

OPINION

¶1 After respondent, Nomanbhoy Family Limited Partners (Nomanbhoy), obtained a tax

deed to certain residential real property (the subject property) in Will County, Illinois, petitioner,

Lincoln Title Company (Lincoln Title) filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) to declare the tax deed void and to vacate the order

that directed the issuance of the tax deed. Nomanbhoy filed a motion to dismiss (735 ILCS 5/2-

619 (West 2010)), alleging that Lincoln Title lacked standing to file a section 2-1401 petition to

collaterally attack the tax deed. After a hearing, the trial court denied the motion to dismiss, took

the case under advisement, and subsequently issued a ruling granting Lincoln Title's section 2-

1401 petition. Nomanbhoy filed a motion to reconsider, which the trial court denied. A few

weeks later, Nomanbhoy filed an emergency motion to vacate the previous order that granted the

section 2-1401 petition, alleging that the trial court had failed to consider Nomanbhoy's right to

reimbursement and that no reimbursement had been made as required by statute. The trial court

denied that motion, as well. Nomanbhoy appeals, challenging the trial court's rulings: (1)

denying Nomanbhoy's motion to dismiss; (2) granting Lincoln Title's section 2-1401 petition

(and denying Nomanbhoy's motion to reconsider); and (3) denying Nomanbhoy's emergency

motion to vacate the prior order. For the reasons that follow, we affirm the trial court's orders

denying the motion to dismiss and granting the section 2-1401 petition, we reverse in part the

trial court's order denying the emergency motion, and we remand this case with directions for

further proceedings.

¶2 FACTS

¶3 On November 6, 2008, Nomanbhoy purchased the subject property at the annual tax sale

for the delinquent 2007 general real estate taxes and was later issued a certificate of purchase.

The subject property was improved with a single-family home and was owned at the time by

Salta Group, Inc. (Salta), which, coincidentally, had previously acquired the property through the

tax-sale process. Under section 22-5 of the Property Tax Code (35 ILCS 200/22-5 (West 2010)),

2 to be entitled to a tax deed later in the process, Nomanbhoy was required to deliver a take notice

to the county clerk (clerk) within 4 months and 15 days after the sale so that an official take

notice could be sent by the clerk to the assessee of record. Nomanbhoy failed to deliver a section

22-5 take notice to the clerk and instead, allegedly, erroneously mailed the notice by regular mail

to Salta at various addresses. It appears from the record that three different section 22-5 notices

were allegedly sent by Nomanbhoy to Salta on various dates. The first two notices, entitled,

"TAKE NOTICE," incorrectly listed November 4, 2010, as the date for the expiration of the

redemption period (redemption date). The third notice, entitled, "LEGAL NOTICE," incorrectly

listed the redemption date as May 7, 2010. Because the subject property was improved with a

single-family home, the actual redemption date was May 6, 2011 (two years and six months from

the date of sale). See 35 ILCS 200/21-350(b) (West 2010)).

¶4 On November 19, 2010, Nomanbhoy filed a verified petition for tax deed to the subject

property. The petition stated, among other things, that Nomanbhoy had fully complied with all

of the provisions of the statutes and Illinois constitution relating to tax sales and would be

entitled to a tax deed if the subject property was not redeemed. Later that same month,

Nomanbhoy filed a motion asking the trial court to direct the county clerk to post Nomanbhoy's

costs to the redemption records. The clerk's office, aware that Nomanbhoy had failed to deliver a

section 22-5 take notice to it and believing, therefore, that Nomanbhoy would not be able to

obtain a tax deed to the subject property, refused to post the costs unless it was ordered to do so

by the court. A hearing was held on the motion on December 16, 2010, at which Nomanbhoy's

attorney at the time, attorney James, appeared on behalf of Nomanbhoy and attorney Mock

appeared on behalf on the county clerk. James acknowledged that a section 22-5 take notice had

3 not been provided to the clerk and that his client had erroneously sent the notice by mail. James

told the trial court that although he believed that only substantial compliance with section 22-5

was required, the issue regarding the notice was not yet ripe for the court to determine and that it

would be litigated if the case proceeded to a tax deed or possibly not at all, if the taxes were

redeemed. The trial court found that the issue regarding the take notice was not before it at that

time and directed the clerk to post the costs to the redemption record.

¶5 In February 2011, Nomanbhoy filed a motion the extend the redemption date from May 6,

2011, to October 21, 2011, and to amend the petition for tax deed accordingly. On March 10,

2011, the trial court granted Nomanbhoy's motion, ordered the clerk to extend the expiration of

the redemption date to October 21, 2011, and set the case for hearing on the amended verified

petition for tax deed for October 28, 2011. The amended verified petition for tax deed was filed

that same day, March 10, 2011. It contained the same representation as the original petition–that

Nomanbhoy had fully complied with all of the statutes and Illinois Constitution relating to tax

sales and would be entitled to a tax deed if the subject property was not redeemed. Within the

time provided for by statute, Nomanbhoy had a section 22-10 (35 ILCS 200/22-10 (West 2010))

take notice served on the clerk and on an agent or officer of Salta. Upon receiving the section

22-10 take notice, the clerk sent out its own official notice, which appears in the court file. The

sheriff attempted to serve notice at the subject property as required by section 22-15 (35 ILCS

200/22-15 (West 2010)), but that attempt was unsuccessful and it was indicated on the return of

service that the subject property was vacant and for sale. Notice was also made by publication as

provided for in section 22-20 (35 ILCS 200/22-20 (West 2010)) and a certificate of publication

was filed with the court.

4 ¶6 A hearing on the petition for tax deed took place as scheduled on October 28, 2011,

before the same judge that had heard the motion to direct the clerk to post the costs in December

2010. No one appeared at the hearing other that Nomanbhoy's attorney, attorney James. James

did not inform or remind the trial court of the fact that the section 22-5 take notice had not been

provided to the clerk as required and that an official version of that notice had not been sent out.

Nomanbhoy filed an application in support of its request for an order directing the issuance of a

tax deed and stated in that application, among other things, that the applicable notices were given

to the occupants of the property, the recorded parties in interest, and the county clerk as required

by law and cited sections 22-5 through 22-30 of the Property Tax Code (35 ILCS 200/22-5

through 22-30 (West 2010)). Nomanbhoy also stated in the application that it had complied with

all of the statutes relating to the issuance of tax deeds and that it was entitled to a tax deed to the

subject property. Attached to the application as supporting documents were, among other things,

copies of the three section 22-5 take notices that were allegedly mailed out by Nomanbhoy.

After reviewing the supporting documents, the trial court entered an order directing the clerk to

issue a tax deed for the subject property to Nomanbhoy. As part of that order, the trial court

found that Nomanbhoy had fully complied with all of the statutes and Illinois Constitution

relating to sales of real estate for taxes and for the issuance of tax deeds. Nomanbhoy recorded

its tax deed in Will County on December 9, 2011.

¶7 On March 6, 2012, Lincoln Title filed its section 2-1401 petition to declare the tax deed

void and to vacate the order that directed the issuance of the tax deed.1 In count I of the petition,

1 The actual document appears to be a combination of a motion to declare the tax deed

void pursuant to section 22-85 of the Property Tax Code and a petition to vacate the order

5 Lincoln Title alleged that the tax deed was void because it had not been recorded by Nomanbhoy

within one year after the redemption date as required by section 22-85 of the Property Tax Code

(35 ILCS 200/22-85 (West 2010)). Lincoln Title claimed that the legal notice that Nomanbhoy

had allegedly mailed to the required parties set the redemption date as May 7, 2010; that the

redemption period was not extended by Nomanbhoy prior to that date and ended on that date; and

that Nomanbhoy failed to record the deed within one year from the May 7, 2010, redemption

date. In count II of the petition, Lincoln Title alleged that the order directing the issuance of the

tax deed should be vacated because the tax deed was procured by fraud in that despite knowing

that an official section 22-5 take notice was never sent out by the county clerk or an original

redemption date set because the section 22-5 take notice had not been provided by Nomanbhoy

to the county clerk as required by section 22-5, Nomanbhoy represented to the court in its

application that it had complied with all of the statutory notice requirements and made no

directing the issuance of the tax deed pursuant to section 22-45 of the Property Tax Code and

section 2-1401 of the Code of Civil Procedure. Because we believe that the entire document was

properly brought under section 2-1401, we will simply refer to the document as a section 2-1401

petition. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104-05 (2002) (a petition

under section 2-1401(f) is the proper method of collaterally attacking a void judgment); In re

Application of the County Treasurer, 2012 IL App (1st) 101976, ¶ 45 (CCPI) (a tax deed was

void with no right to reimbursement because it had not been recorded within one year of the

redemption date as required by section 22-85 of the Property Tax Code and should have been set

aside as provided for in section 2-1401(f) of the Code of Civil Procedure).

6 representation to the trial court at the hearing that its section 22-5 take notice was defective.

Lincoln Title alleged further that Nomanbhoy had attached to its application copies of unfiled

section 22-5 take notices (the ones that had been erroneously mailed out) in an attempt to deceive

the trial court into believing that the mandatory section 22-5 take notice had been delivered to the

clerk. Lincoln Title claimed that the entire tax deed proceeding was a complete nullity due to

Nomanbhoy's failure to file, serve, and set the original redemption date with the clerk. As a

second part of count II, Lincoln Title asserted that it was entitled to equitable redemption because

it would have redeemed the tax sale but, in reliance on the county clerk's official records and

statements, it believed that the tax sale was "dead" because Nomanbhoy had failed to file the

required section 22-5 take notice with the clerk within the required time period. Lincoln Title

also asserted in its petition that it had acted diligently in bringing its section 2-1401 petition and

that it had reasonably and justifiably relied upon an error by the county clerk. As for its interest

in the matter, Lincoln Title indicated in its petition that on or about February 9, 2012, it received

a demand from a title guaranty company to cure a defect in title caused by the instant tax deed

issuing.

¶8 On March 12, 2012, attorney James filed a motion to withdraw as counsel of record for

Nomanbhoy, citing irreconcilable differences. The trial court granted the motion to withdraw;

gave Nomanbhoy 21 days to file a supplemental appearance; gave Nomanbhoy until May 3,

2012, to file its answer or other pleading in response to the section 2-1401 petition; continued the

case for a status hearing; and set a hearing on the section 2-1401 petition for May 24, 2012. On

the April 5, 2012, status date, the hearing on the section 2-1401 petition was continued to June 4,

2012, and Nomanbhoy was given until May 15, 2012, to answer or otherwise plead. On the June

7 4 hearing date, the hearing on the section 2-1401 petition was continued over Lincoln Title's

objection to July 2, 2012, attorney Schroeder was granted leave to file an appearance on behalf of

Nomanbhoy, and Nomanbhoy was given until June 18, 2012, to file an answer or other pleading

in response to the section 2-1401 petition. On June 15, 2012, attorney Schroeder filed a motion

to extend his time to respond to the petition. That motion was granted, Schroeder was given until

June 29, 2012, to file his response, and the hearing on the section 2-1401 petition was continued

until July 9, 2012. On June 28, 2012, attorneys Morthland and Phipps entered their appearance

for Nomanbhoy and filed a section 2-619 motion to dismiss the section 2-1401 petition, alleging

that Lincoln Title lacked standing to collaterally attack the tax deed because Lincoln Title had no

recorded interest in the subject property and was a "complete stranger" to the subject property's

title. Morthland and Phipps filed no other response to the section 2-1401 petition. Lincoln Title

filed a response opposing the motion to dismiss. In its response, Lincoln Title asserted, among

other things, that as the title insurer to the policy issued on the subject property at its sale during

the tax deed proceeding, it had an unequivocal injury in fact and a legally cognizable interest in

attacking the validity of the tax deed and the propriety of the tax deed proceeding and, thus, that

it had standing to bring the section 2-1401 petition.

¶9 A hearing was held on the section 2-1401 petition and on the motion to dismiss on July 9,

2012, as previously scheduled. Attorney Phipps appeared for Nomanbhoy. At the outset of the

hearing, the trial court asked whether either attorney needed more time to do any additional

briefing of the issues and if the attorneys were ready to argue the matter. Neither attorney

requested additional time at that point. No evidence was presented at the hearing, just the

arguments of the attorneys. Phipps argued that Lincoln Title lacked standing and that the motion

8 to dismiss should be granted. During its argument, Lincoln Title elaborated further on its interest

in the property, stating that Salta was trying to close on the sale of the property to a third party

and that Lincoln Title had issued a title insurance policy on the subject property based upon its

search of the records. Lincoln Title argued that it had standing, that the motion to dismiss should

be denied, and that the section 2-1401 petition should be granted. Phipps responded to Lincoln

Title's argument as to whether the section 2-1401 petition should be granted, although somewhat

briefly and primarily in the context of standing. At the conclusion of the hearing, the trial court

denied Nomanbhoy's motion to dismiss and took the section 2-1401 petition under advisement.

Phipps made no objection or request of the trial court at that time. On July 11, 2012, the trial

court issued a written decision granting Lincoln Title's section 2-1401 petition. In reaching that

conclusion, the trial court found that Nomanbhoy had failed to file its section 22-5 take notice

with the county clerk and implicitly ruled that the deed had been procured by fraud because

Nomanbhoy represented in its application in support of its request for a tax deed that it had

complied with all of the statutory requirements pursuant to section 22-5 and that all of the

applicable notices required by law were given. The trial court made no statement in its ruling

about count I of the section 2-1401 petition or about section 22-85 of the Property Tax Code.

¶ 10 Attorney Morthland filed a motion to reconsider on behalf of Nomanbhoy. In the motion,

Morthland alleged that prior to the July 9 hearing, he had agreed with counsel for Lincoln Title

that the only matter that would be heard at the hearing was Nomanbhoy's motion to dismiss, that

he was personally unable to attend the hearing, and that he had his associate (Phipps) appear for

the purpose of arguing the motion to dismiss. Morthland pointed out that no discovery had been

conducted in this case and asked the trial court to reconsider its ruling and to allow the parties to

9 present further evidence after discovery had been conducted. Morthland alleged further that the

issue of the defective take notice had previously been litigated before the trial court at a prior

hearing.2 Morthland claimed that because the trial court was previously informed of the issue of

the defective take notice at the prior hearing and had knowledge of the issue, no facts or

circumstances were withheld from the court, and Nomanbhoy's statement in the application was

not fraudulent. Morthland represented further that it was undisputed that the owner of record at

the time received the section 22-5 take notice by regular mail. Attached to the motion to

reconsider was the affidavit of Shabbir Nomanbhoy, a limited partner of Nomanbhoy. In the

affidavit, Shabbir attested that after he received the certificate of purchase, he mailed by regular

mail a take notice to the assessee of record, Salta; that after mailing several notices to Salta,

Shabbir had a phone conversation with Marshall Atlas, an officer and director of Salta; that Atlas

acknowledged that he had received the section 22-5 take notice sent by Shabbir; that Atlas

informed Shabbir that he did not intend to redeem the taxes and offered Shabbir $2,000 to " 'go

away' "; and that Atlas told Shabbir that Shabbir had legal problems with his petition and that he

was not going to get his money back. Nomanbhoy also filed a memorandum of law in support of

its motion to reconsider.

¶ 11 Lincoln Title filed a response and opposed the motion to reconsider. Lincoln Title denied

2 Morthland cited the wrong prior hearing in his motion to reconsider, asserting that the

matter had been litigated at the March 10, 2011, hearing on Nomanbhoy's request to extend the

redemption date and to amend its verified petition for tax deed. Lincoln Title cited the correct

prior hearing in its response to the motion to reconsider as the December 16, 2010, hearing on

Nomanbhoy's motion regarding the posting of costs.

10 that it had an agreement with Morthland to proceed only on the motion to dismiss at the July 9

hearing and stated that it informed opposing counsel that it was going to proceed on its section 2-

1401 petition. Lincoln Title pointed out that at the hearing on the posting of costs, the trial court

did not make a determination as to the effect of Nomanbhoy's failure to comply with the notice

requirements of section 22-5. Attached to Lincoln Title's response was a copy of the transcript

from the hearing regarding the posting of costs.

¶ 12 A hearing was held on the motion to reconsider in October 2012. During his argument,

Morthland clarified his prior statement and noted that although the trial court was fully informed

of the issue with the defective take notice, it did not decide that issue at the hearing regarding the

posting of costs. In addition to the arguments raised in his motion, Morthland also told the trial

court that under the Property Tax Code when an order directing the issuance of a tax deed was

vacated, the trial court had to include language in the order that the successful party had 90 days

to redeem, and that if the successful party did not redeem within that period, the order vacating

the tax deed was null and void. After the hearing on the motion to reconsider had concluded, the

trial court took the matter under advisement. On October 29, 2012, the trial court issued a

written ruling denying the motion to reconsider.

¶ 13 On November 14, 2012, attorney Blumenthal entered an appearance on behalf on

Nomanbhoy and filed an emergency motion to vacate the July 11, 2012, court order (the one that

granted the section 2-1401 petition) in accordance with section 22-80 of the Property Tax Code

(35 ILCS 200/22-80(b) (West 2010)). In the motion, Nomanbhoy alleged that Lincoln Title had

failed to pay the redemption amount within the 90 day period following the vacation of the tax

deed as required by section 22-80. Nomanbhoy alleged further that pursuant to the statute,

11 Lincoln Title's motion to vacate had to be denied with prejudice and the order directing the

issuance of the tax deed had to remain in full force and effect. Lincoln Title filed a response

opposing the emergency motion. In November 2012, after a hearing, the trial court denied the

emergency motion. Nomanbhoy appealed.

¶ 14 ANALYSIS

¶ 15 As its first point of contention on appeal, Nomanbhoy argues that the trial court erred in

denying its section 2-619 motion to dismiss Lincoln Title's section 2-1401 petition. Nomanbhoy

asserts that the motion should have been granted because Lincoln Title lacked standing to file a

section 2-1401 petition to collaterally attack the tax deed. Nomanbhoy contends that because

Lincoln Title had no title or interest in the property and was not the intended recipient of the

section 22-5 take notice, it had no standing to assert the deficient section 22-5 take notice as a

basis to collaterally attack the tax deed in the section 2-1401 petition. Lincoln Title disagrees

and asserts that a title company has a legally cognizable interest in securing good title and in

providing title insurance and that Nomanbhoy's failure to provide the required section 22-5 notice

in the instant case affected Lincoln Title directly because it prevented Lincoln Title from

redeeming the property during the redemption period, based upon Lincoln Title's reliance upon

information in the judgment book. Lincoln Title contends, therefore, that it had standing to file a

section 2-1401 petition to collaterally challenge the tax deed and that the trial court's denial of

Nomanbhoy's motion to dismiss should be upheld.

¶ 16 A trial court's ruling on a section 2-619 motion to dismiss is subject to de novo review on

appeal. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003). In conducting that

review, the court must construe all of the pleadings and supporting documents in the light most

12 favorable to the nonmoving party. Id. at 367-68. Under section 2-619(a)(9), which allows a

litigant to obtain an involuntary dismissal of a claim against him if that claim is completely

negated or defeated by other "affirmative matter" in the nature of a defense (735 ILCS 5/2-

619(a)(9) (West 2010); Van Meter, 207 Ill. 2d at 367), lack of standing may be raised as a basis

for dismissal (International Union of Operating Engineers, Local 148 v. Illinois Department of

Employment Security, 215 Ill. 2d 37, 45 (2005) (Local 148). In addition, the issue of standing is

a question of law and is also subject to de novo review on appeal. Powell v. Dean Foods Co.,

2012 IL 111714, ¶ 35.

¶ 17 In simple form, the question of standing asks whether a certain party is entitled to have

the court decide the merits of a particular issue or dispute. See id. ¶ 36; In re Estate of Wellman,

174 Ill. 2d 335, 344-45 (1996). The doctrine of standing requires that a litigant, either in an

individual or representative capacity, have a real interest in the action brought before the court

and in its outcome. Powell, 2012 IL 111714, ¶¶ 35-36. The purpose of the doctrine is to ensure

that courts decide actual specific controversies and not abstract or moot questions. Id. ¶ 36. In

keeping with that principle, a party generally may not complain about an error that does not

prejudicially affect that party. Id.; Clark v. Zaleski, 253 Ill. 63, 84 (1911) (in a partition suit

brought after a tax lien foreclosure proceeding, appellants could not assert as a basis to attack the

foreclosure proceeding that a person, who was possibly a necessary party, was erroneously

dismissed from the case, when that person did not appeal the dismissal order and was not one of

the appellants); 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, 30-31 (1990) (former owners of the subject

13 property had no standing to assert in a section 2-1401 petition to vacate a tax deed that the

acquiring party, prior to obtaining the tax deed, had failed to reimburse the city for certain

expenditures related to the property as was required by statute for a tax deed to issue). Rather, a

party may only assert its own legal rights and interests and may not base a claim for relief upon

the rights of a third party. Powell, 2012 IL 111714, ¶ 36.

¶ 18 To have standing to bring suit in Illinois, a party need only have some injury in fact to a

legally cognizable interest. Id. ¶ 35; Greer v. Illinois Housing Development Authority, 122 Ill. 2d

462, 492 (1988). A plaintiff is not required to allege facts to establish standing. Local 148, 215

Ill. 2d at 45. Instead, the burden is on the defendant to plead and prove a lack of standing. Id.

Specifically as to tax deed proceedings, to have standing to file a section 2-1401 petition to

collaterally attack a tax deed, a petitioner must have bona fide title or interest in the property.

See In re Application of Hamilton County Treasurer, 96 Ill. App. 3d 158, 162 (1981) (Gholson)

(addressing the prior version of the statute). Any party that has such an interest in the property

that he or she would have been entitled to redeem has the right to bring suit to set aside a tax sale

and to have the tax deed declared void. Miller v. Cook, 135 Ill. 190, 203 (1890) (the right to

bring a suit to set aside a tax sale and to have the deed declared void is not confined to the

original owner of the land and may be exercised by his mortgagee or by any person who can

show such an interest in the property as would have entitled him to redeem). A party may

redeem on behalf of the owner even where the party lacks any interest in the property or lacks

explicit authorization from the owner. In re Application of the County Treasurer & Ex Officio

County Collector of McHenry County, 301 Ill. App. 3d 672, 679 (1998) (Choice Properties).

Just because a party redeemed out of his own economic interest does not mean that he did not do

14 so on behalf of the owner as well. Id. The relationship between the party redeeming the property

and the owner may be of such a nature that a valid redemption promotes both of their interests.

Id.

¶ 19 In the present case, under the circumstances presented, we believe that Lincoln Title had

standing to file the section 2-1401 petition to collaterally attack the tax deed. Although Lincoln

Title did not have an ownership interest in the property, as the company that had issued a title

insurance policy on the subject property, it clearly could have redeemed the taxes on the subject

property on behalf of the owner, Salta. See id. As Salta's title insurer, Lincoln Title would be

expected to act on Salta's behalf to preserve Salta's ownership of the property and to fulfill its

contractual obligation to Salta to provide or insure clear title to the property. See id. Because

Lincoln Title had the right to redeem the property on behalf of Salta, it had standing to file a

section 2-1401 petition to collaterally attack the tax deed that had issued. See Miller, 135 Ill. at

203. We conclude, therefore, that the trial court properly denied Nomanbhoy's section 2-619

motion to dismiss.

¶ 20 In reaching that conclusion, we acknowledge that the Second District of the Appellate

Court in Choice Properties, cited above, stated in dicta that it did not believe that a title company

was "a person interested in the property" as referenced in section 21-345 of the Property Tax

Code (35 ILCS 200/21-345 (West 2010)) regarding who had the right to redeem the taxes. See

Choice Properties, 301 Ill. App. 3d at 675-76. We note, however, that the appellate court in

Choice Properties went on to find that the title company in that case could still redeem the taxes

and that it would be presumed that the title company did so on behalf of the owner. Id. at 679.

Thus, without deciding whether we agree with the Second District's statement regarding whether

15 a title company that issues a policy on the property is an "interested party," we still believe that

the appellate court's ruling in Choice Properties–that the title company could redeem the

taxes–supports our finding of standing in the instant case. See Miller, 135 Ill. at 203 (a party that

would be entitled to redeem has the right to bring suit to set aside a tax sale and to have the tax

deed declared void).

¶ 21 As its second point of contention on appeal, Nomanbhoy argues that the trial court erred

in granting Lincoln Title's section 2-1401 petition. Nomanbhoy asserts first that Lincoln Title

was not entitled to relief under count I of the petition because the tax deed was recorded within

one year of the redemption date as required and was not, therefore, void pursuant to section 22-

85 of the Property Tax Code. Second, Nomanbhoy asserts that Lincoln Title was also not

entitled to relief under count II of the petition because Lincoln Title could not establish that it

acted with due diligence as necessary to recover under section 22-45 of the Property Tax Code.

Lincoln Title disagrees with those assertions and argues that the trial court's ruling was proper

and should be affirmed.

¶ 22 Although traditionally an abuse of discretion standard of review was applied on appeal to

a trial court's ruling on a section 2-1401 petition, in People v. Vincent, 226 Ill. 2d 1, 14 (2007),

our supreme court held that a de novo standard of review was a more appropriate standard to be

applied in cases in which the trial court either dismissed the section 2-1401 petition or ruled on

the petition based on the pleadings alone, without an evidentiary hearing. Id. at 14-18. As the

trial court in the instant case ruled on the section 2-1401 petition on the pleadings alone and did

not hold an evidentiary hearing, we will apply a de novo standard of review in determining

whether the section 2-1401 petition was properly granted. See id.

16 ¶ 23 Turning to the merits of this issue, we note that a party's ability to set aside a tax deed is

very limited. See 35 ILCS 200/22-45, 22-55 (West 2010). Under section 22-45 of the Property

Tax Code, there are only three ways in which a party may challenge a tax deed: (1) by filing a

direct appeal from the order directing the issuance of the deed; (2) by filing a motion for relief

under section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2010)); or by

filing a petition for relief under section 2-1401 of the Code of Civil Procedure. Section 22-45

further limits the grounds for which relief from a tax deed may be obtained under section 2-1401

to the following four situations: (1) where there is proof that the taxes were paid prior to sale; (2)

where there is proof that the property was exempt from taxation; (3) where there is proof by clear

and convincing evidence that the tax deed had been procured by fraud or deception by the tax

purchaser or his assignee; or (4) where there is proof that a party with a recorded ownership or

other recorded interest was not named in the required publication notice and the tax purchaser or

his assignee did not make a diligent inquiry and effort to serve that party with the required

notices. 35 ILCS 200/22-45 (West 2010). In addition, section 22-85 of the Property Tax Code

provides that a tax deed is "absolutely void with no right to reimbursement" unless it is recorded

by the tax purchaser within one year after the redemption date. 35 ILCS 200/22-85 (West 2010).

Thus, a party seeking to set aside a tax deed could also allege in a section 2-1401 petition that the

deed is void because the tax purchaser failed to record it within the one year period. See 735

ILCS 5/2-1401(f) (West 2010); 35 ILCS 200/22-85 (West 2010); Sarkissian, 201 Ill. 2d at 104-

05; CCPI, 2012 IL App (1st) 101976, ¶ 45; In re Application of the County Treasurer & Ex

Officio County Collector of Cook County, Illinois, 333 Ill. App. 3d 355, 360-62 (2002).

Although a section 2-1401 petitioner generally has to establish that he acted with due diligence in

17 trying to prevent the underlying order and in filing the section 2-1401 petition, no such showing

is required when the section 2-1401 petitioner alleges that the underlying order is void. See

Sarkissian, 201 Ill. 2d at 104.

¶ 24 In the present case, after having reviewed the record, we agree with Nomanbhoy's first

assertion that there is no legal basis upon which to find that the tax deed is void for failure to

record the deed within one year after the redemption date as provided for in section 22-85.

Regardless of the erroneous dates listed in Nomanbhoy's alleged section 22-5 take notices and

legal notice, the redemption date was initially set by statute as May 6, 2011, two and a half years

from the date of purchase. See 35 ILCS 200/21-350(b) (West 2010). That date was properly

extended by Nomanbhoy to October 21, 2011. See 35 ILCS 200/21-385 (West 2010). On

November 9, 2011, less than one month after the October 21, 2011, redemption date,

Nomanbhoy recorded the tax deed. Thus, there simply is no merit to Lincoln Title's assertion to

the contrary and no law to support Lincoln Title's assertion that the listing of an erroneous

redemption date in a legal notice sets the redemption date for the purpose of when an extension

must be requested or a tax deed recorded. Indeed, it does not appear that the trial court based its

decision on count I of the section 2-1401 petition since the trial court's initial order made no

mention of count I or of section 22-85.

¶ 25 That having been said, we do not agree with Nomanbhoy's second assertion, that there

was no basis under section 22-45 for the trial court to grant the section 2-1401 petition. In

making its initial ruling, the trial court found that Nomanbhoy procured the deed through fraud,

and Nomanbhoy has not challenged that finding on appeal. The finding itself is well supported

as the record demonstrates that Nomanbhoy was keenly aware of the problems with its section

18 22-5 take notice, that it failed to remind the trial court of those problems when it appeared before

the court to obtain an order for the issuance of the tax deed, and that it represented in several

pleadings that it had complied with the notice requirements under the law. See, e.g., In re

Application of the County Treasurer, 347 Ill. App. 3d 769, 780-81 (2004) (in a section 2-1401

proceeding to set aside a tax deed, the appellate court found that the tax purchaser had procured

the tax deed by fraud when the tax purchaser falsely or erroneously represented to the trial court

that all of the notices required by law had been given, that all of the occupants of the subject

property had already been served, and that it was entitled to the issuance of a tax deed, and failed

to inform the trial court that the husband of the owner of the property, who was listed on the

mortgage as the owner's husband and who had a potential interest as a probable occupant of the

property, had not been served with notice); In re Tax Deed Petition of Thomas, 225 Ill. App. 3d

861, 863-64 (1992) (in a section 2-1401 proceeding to set aside a tax deed, the appellate court

held that the tax deed was procured by fraud when the tax purchaser misread the property records

and failed to notify mortgagee of the expiration of the redemption period); In re Application of

County Treasurer, 67 Ill. App. 3d 122, 131-32 (1978) (in a collateral proceeding to set aside a

tax deed, the appellate court affirmed the trial court's finding of fraud in the procurement of the

tax deed when the person who had performed the tax and title search on behalf of the tax

purchaser withheld certain information from the trial court when he testified at the hearing for the

tax deed). Any claims regarding Lincoln Title's lack of due diligence in either the issuance of the

tax deed itself or in the bringing of the section 2-1401 petition were forfeited by Nomanbhoy

when it failed to make those claims in the trial court. See Norway Tree Farm, Inc. v. Baugher, 8

Ill. App. 3d 1061, 1062 (1972) ("issues, questions, points or contentions not presented in the trial

19 court and properly preserved for review will not be considered on appeal").

¶ 26 Although Nomanbhoy contends that it was prevented from making those claims when the

trial court unexpectedly ruled upon the section 2-1401 petition, instead of just ruling upon the

motion to dismiss, it is abundantly clear from the record that the trial court gave Nomanbhoy

numerous opportunities to respond to the section 2-1401 petition when the trial court repeatedly

continued the hearing on the petition and repeatedly extended the date by which Nomanbhoy was

supposed to respond. In addition, at the start of the July 9, 2012, hearing, the trial court

specifically inquired whether either attorney needed more time to do additional briefing and

whether the attorneys were ready to argue the matter. Nomanbhoy's attorney did not ask for

additional time to respond or attempt to clarify what the court was going to be ruling on at the

hearing. Furthermore, at the end of that hearing, when the trial court denied the motion to

dismiss and took the section 2-1401 petition under advisement so that it could make a ruling,

Nomanbhoy's attorney made no objection or request for additional time to address the merits of

the section 2-1401 petition. Under those circumstances, we cannot accept Nomanbhoy's

contention that the trial court was to blame for Nomanbhoy's failure to raise certain arguments at

the trial level in response to the section 2-1401 petition. See Vincent, 226 Ill. 2d at 9 (if a section

2-1401 respondent does not answer the petition, the lack of an answer constitutes an admission of

all well-pleaded facts and the trial court may decide the matter on the pleadings and supporting

documents before it, including the record of the prior proceedings).

¶ 27 As its final point of contention on appeal, Nomanbhoy argues that the trial court erred in

denying its emergency motion to vacate the July 11, 2012, order pursuant to section 22-80 (35

ILCS 200/22-80 (West 2010)) of the Property Tax Code. Nomanbhoy asserts that because the

20 tax deed was not void, Lincoln Title was required to make reimbursement within 90 days of the

July 11, 2012, order as required by section 22-80(b) (35 ILCS 200/22-80(b) (West 2010)), or the

July 11, 2012, order was to be vacated and the tax deed was to remain in full force and effect.

Lincoln Title argues that the trial court's denial of the emergency motion was proper and should

be affirmed. Lincoln Title asserts first that the tax deed was void under section 22-85 with no

right to reimbursement because Nomanbhoy failed to record the deed within one year after the

redemption date. Since we have already rejected that assertion above, we will not address it

further here. Second, Lincoln Title asserts that the section 22-80 reimbursement requirement did

not apply in this case because the tax deed was not validly issued since Nomanbhoy failed to

comply with the take notice requirements of section 22-5. Lincoln Title asserts further that at no

time did the trial court enter an order requiring Lincoln Title to make reimbursement.

¶ 28 As this issue was essentially one that was part of, or should have been part of, the trial

court's ruling on the section 2-1401 petition, which was decided on the pleadings and without an

evidentiary hearing, we will review this issue de novo on appeal. See Vincent, 226 Ill. 2d at 14-

18. Section 22-80 of the Property Tax Code provides:

"(a) Any order of court vacating an order directing the county clerk to

issue a tax deed based upon a finding that the property was not subject to taxation

or special assessment, or that the taxes or special assessments had been paid prior

to the sale of the property, or that the tax sale was otherwise void, shall declare the

tax sale to be a sale in error pursuant to Section 21-310 of this Act. The order

shall direct the county collector to refund to the tax deed grantee or his or her

successors and assigns (or, if a tax deed has not yet issued, the holder of the

21 certificate) the following amounts:

(1) all taxes and special assessments purchased, paid, or redeemed

by the tax purchaser or his or her assignee, or by the tax deed grantee or

his or her successors and assigns, whether before or after entry of the order

for tax deed, with interest at the rate of 1% per month from the date each

amount was paid until the date of payment pursuant to this Section;

(2) all costs paid and posted to the judgment record and not

included in paragraph (1) of this subsection (a); and

(3) court reporter fees for the hearing on the application for tax

deed and transcript thereof, cost of certification of tax deed order, cost of

issuance of tax deed, and cost of recording of tax deed.

(b) Except in those cases described in subsection (a) of this Section, and

unless the court on motion of the tax deed petitioner extends the redemption

period to a date not later than 3 years from the date of sale, any order of court

finding that an order directing the county clerk to issue a tax deed should be

vacated shall direct the party who successfully contested the entry of the order to

pay to the tax deed grantee or his or her successors and assigns (or, if a tax deed

has not yet issued, the holder of the certificate) within 90 days after the date of the

finding:

(1) the amount necessary to redeem the property from the sale as of

the last day of the period of redemption, except that, if the sale is a

scavenger sale pursuant to Section 21-260 of this Act, the redemption

22 amount shall not include an amount equal to all delinquent taxes on such

property which taxes were delinquent at the time of sale; and

(2) amounts in satisfaction of municipal liens paid by the tax

purchaser or his or her assignee, and the amounts specified in paragraphs

(1) and (3) of subsection (a) of this Section, to the extent the amounts are

not included in paragraph (1) of this subsection (b).

If the payment is not made within the 90-day period, the petition to vacate

the order directing the county clerk to issue a tax deed shall be denied with

prejudice, and the order directing the county clerk to issue a tax deed shall remain

in full force and effect. No final order vacating any order directing the county

clerk to issue a tax deed shall be entered pursuant to this subsection (b) until the

payment has been made." 35 ILCS 200/22-80 (West 2010).

¶ 29 Thus, section 22-80 requires that if a tax deed is later vacated by the trial court,

reimbursement must be made to the holder of the tax deed, either by the county under subsection

(a) if the tax sale was void, or by the party that successfully contested the order under subsection

(b) if the tax deed was vacated for some other reason. See 35 ILCS 22-80 (West 2010). A tax

deed is not void unless the trial court lacked jurisdiction to enter the order that directed the

issuance of the tax deed. Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159, 165 (1983).

Tax sale proceedings are in rem and a trial court obtains jurisdiction over the land when the

county collector makes his application for judgment and order for sale. Id. Once the trial court

obtains jurisdiction, it retains jurisdiction to make all necessary findings and to enter all

necessary orders supplemental to the original tax sale. Id. Thus, an order is not rendered void

23 by error or impropriety or even by subsequent fraud, concealment, or perjury (subsequent in that

it took place after the application for judgment and sale when the trial court acquired

jurisdiction). Id. The determination of whether a party has been given the statutorily required

notice goes to whether the trial court should order the issuance of the tax deed and not to whether

the trial court has jurisdiction in the proceeding. Smith v. D.R.G., Inc., 63 Ill. 2d 31, 35-36

(1976).

¶ 30 In the present case, it appears from our review of the statute that Nomanbhoy was entitled

to reimbursement either from the county under subsection (a), which Nomanbhoy specifically

states in its brief that it is not seeking, or from Lincoln Title under subsection (b). There were

two counts for relief in Lincoln Title's section 2-1401 petition, one to declare the tax deed void

based upon a violation of section 22-85, and the other to vacate the order directing the issuance

of the tax deed because it was procured by fraud relating to Nomanbhoy's failure to comply with

the section 22-5 take notice requirements. We have already determined that the deed was not

"absolutely void with no right to reimbursement" as provided for in section 22-85. Although

Lincoln Title asserts at various points in its brief on appeal that the deed was also void because of

the failure to comply with section 22-5, that is not the basis for declaring the deed void that was

asserted in the trial court. Thus, Lincoln Title cannot now assert that basis on appeal as grounds

for finding the deed void. See Norway Tree Farm, Inc., 8 Ill. App. 3d at 1062. Even if that

assertion were not forfeited, it would still not constitute a basis for finding that the deed was

void. See Vulcan Materials Co., 96 Ill. 2d at 165 (once a court obtains jurisdiction to rule upon a

matter, subsequent error or fraud does not render the trial court's ruling void).

¶ 31 Although Lincoln Title relies on In re Application of the County Collector, 367 Ill. App.

24 3d 34 (2006) (Mattingly), for its assertion to the contrary, that reliance is misplaced since the tax

deed in that case was deemed void from the outset because its issuance was directed by the trial

court at a time when it lacked jurisdiction due to a bankruptcy stay. See Mattingly, 367 Ill. App.

3d at 38-39 (statutory reimbursement requirement under section 22-80 did not apply because the

tax deed was void from the outset in that it was issued by the trial court while a bankruptcy stay

was in effect and while the trial court had been divested of jurisdiction). As the tax deed in this

case was not void from the outset and was subsequently vacated, Nomanbhoy was entitled to

reimbursement from Lincoln Title. However, because the trial court never ordered

reimbursement to be made, it would be unfair to reinstate the tax deed without giving Lincoln

Title the statutory 90 days to make reimbursement. This case must be remanded, therefore, for

the trial court to determine the amount of the reimbursement to be made, to set a 90 day

reimbursement date, and for further proceedings consistent with this order.

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, we affirm the trial court's orders denying Nomanbhoy's motion

to dismiss and granting Lincoln Title's section 2-1401 petition; we reverse in part the trial court's

order denying Nomanbhoy's emergency motion; and we remand this case for the trial court to

order Lincoln Title to pay section 22-80(b) reimbursement to Nomanbhoy, to set a 90-day

reimbursement date, and for further proceedings consistent with this opinion.

¶ 34 Affirmed in part and reversed in part; cause remanded with directions.