In reApplication of the County Treasurer Greene County

2022 IL App (4th) 190904-U

• Court: Appellate Court of Illinois
• Decided: February 14, 2022
• Docket: 4-19-0904
• Status: Unpublished

Opinion

NOTICE This Order was filed under FILED Supreme Court Rule 23 and is 2022 IL App (4th) 190904-U February 14, 2022 not precedent except in the Carla Bender limited circumstances allowed NOS. 4-19-0904, 4-19-0905, 4-19-0906 cons. 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re APPLICATION OF THE COUNTY TREASURER ) Appeal from the AND ex officio COUNTY COLLECTOR OF GREENE ) Circuit Court of COUNTY, ILLINOIS, for Order of Judgment and Sale ) Greene County Against Real Estate Returned Delinquent for the ) Nos. 18TX4 Nonpayment of General Taxes for the Year 2014 ) 18TX5 ) 18TX7 (Scott Sieron, Petitioner-Appellant, v. The Greene ) County Treasurer, Respondent-Appellee). ) Honorable ) James W. Day, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Holder White and Steigmann concurred in the judgment.

ORDER ¶1 Held: The appellate court remanded, finding the trial court erred in denying petitioner’s motions for sales in error under section 21-310 of the Property Tax Code. The appellate court found the trial court’s denial of the motions based on petitioner’s failure to obtain and record a tax deed in a timely manner was not required under the statute, and the trial court’s finding of a failure to prove substantial destruction was against the manifest weight of the evidence.

¶2 I. BACKGROUND

¶3 This is an appeal from the trial court’s denial of three petitions to vacate tax sales

and denial of motions to declare them as sales in error under the Property Tax Code (35 ILCS

200/1-1 et seq. (West 2018)). Petitioner, Scott Sieron, has been engaged in the business of

purchasing properties at county tax sales for 30 years. In November 2015, Raven Securities (Raven), the corporate entity through which petitioner buys property at tax sales, purchased and

obtained tax sale certificates for the three parcels of property that are the subject of this

consolidated appeal: Greene County case Nos. 18-TX-4 (4-19-0904) (Certificate No.

201400100), 18-TX-5 (4-19-0905) (Certificate No. 201400145), and 18-TX-7 (4-19-0906)

(Certificate No. 201400170). Each of the properties was sold by the Greene County treasurer to

Raven for delinquent 2014 real estate taxes. In each case, Sieron filed and executed the proper

notices to the property owners, notifying them the property had been sold for delinquent taxes.

As required, the notices informed the previous owners of the period for “redemption”—or when

they could pay delinquent taxes and penalties and thereby retain their property—and advised

them of the amounts owed to redeem the property. The notices further informed the previous

owners a petition for tax deed transferring title and possession of the property would be filed if

the property was not redeemed by the expiration date of the redemption period. Two extensions

of the redemption period were filed, ultimately extending the period of redemption to August

2018.

¶4 Raven assigned its interest in the properties to Sieron and filed copies of the

assignments along with the relevant tax sale certificates in March 2018. Sieron filed petitions for

tax deeds in April 2018, indicating the end-date for the period for redemption was approaching

and redemption had not yet occurred, and seeking tax deeds and possession of the properties. An

“Application for An Order Directing Issuance of a Tax Deed”, along with a “Report of

Proceedings and Affidavit in Support of Petition for Tax Deed” was filed in each case on August

7, 2018, four days after the redemption period expired. In his affidavit, Sieron represented he

“visited, or caused to be visited” the properties, provided photographs, found them to be in either

“fair” or “poor” condition, and continued to seek tax deeds and orders of possession as to each

-2- property. An “Order Directing Issuance of Tax Deed” was entered as to each parcel on August 9,

2018, conveying the properties to Sieron and entitling him to possession immediately. (Since the

claims regarding each parcel are identical, we need not reference them individually, either by

their tax certificate or permanent index number.) An “Order of Possession” was entered on the

same date; however, no tax deeds were ever sought.

¶5 In June and July 2019, Sieron filed motions under section 21-310(b)(2) of the

Property Tax Code (35 ILCS 200/21-310(b)(2) (West 2018)), seeking a declaration of sale in

error and refunds in all three cases. In case No. 18-TX-4, Sieron sought an order in June 2019,

declaring the sale in error and directing a refund of monies paid to the county treasurer, plus

statutory interest, for tax sale certificates issued for 2014 and 2015 delinquent taxes. Echoing the

language of the statute, Sieron based his claim on the fact that “no tax deed had been issued” and

that “improvements upon the property sold have been substantially destroyed, or rendered

uninhabitable or otherwise unfit for occupancy, subsequent to the tax sale and prior to issuance

of a tax deed.” Both documentary and photographic exhibits were attached. The Greene County

State’s Attorney’s Office filed a response on July 11, 2019, objecting to Sieron’s motion and

request for refund. The next day, Sieron filed a “Motion for Declaration of Sale in Error and for

Refund Pursuant to Bankruptcy” under subsection 310(b)(1) of the Property Tax Code (35 ILCS

200/21-310(b)(1) (West 2018)) for the same parcel identified in case No. 18-TX-4, alleging an

intervening bankruptcy petition filed by the former property owner “subsequent to the tax sale

and prior to the issuance of the tax deed.”

¶6 In case No. 18-TX-5, Sieron filed a motion pursuant to section 21-310(b)(2) (35

ILCS 200/21-310(b)(2) (West 2018)) for a “Declaration of Sale in Error and For Refund” in two

counts, alleging “no tax deed has been issued” and “the improvements upon the property sold

-3- have been substantially destroyed, or rendered uninhabitable or otherwise unfit for occupancy,

subsequent to the tax sale [for delinquent 2014 (or delinquent 2015) taxes] and prior to the

issuance of a tax deed.” Again, he sought an order declaring the sale to be in error, and a refund

to Sieron of the amounts paid at the tax sale, plus all costs. Count I related to a tax sale certificate

for delinquent 2014 taxes and count II was for delinquent 2015 taxes.

¶7 A substantially similar two-count motion was filed in case No. 18-TX-7 for tax

sale certificates issued for delinquent 2014 and 2017 taxes.

¶8 The state’s attorney’s responses to the motions for sale in error contended they

were untimely since Sieron had been granted an “Order Directing Issuance of the Tax Deed” and

an “Order for Possession” in August 2018. At the outset of the July 12, 2019, hearing on all three

motions, when asked whether he wished to present live testimony, Sieron’s counsel said the

parties agreed to stipulate to the admission of the various exhibits accompanying the petitions

and that “the exhibits pretty much show what we’re doing on these.” The state’s attorney

contended the property passed to Sieron upon the issuance of the orders and that he had 30 days

to seek to undo those orders. He also argued the actual recording of a tax deed was irrelevant to

the issue of how long Sieron waited to obtain it.

¶9 Sieron’s counsel argued since the statute granted them a year in which to obtain

the tax deed before losing all interest in the property, the 10-month delay in this case was also

irrelevant. He contended the evidence presented was sufficient to show the property had

deteriorated since the time of sale to a degree sufficient to justify a sale in error. Combining oral

proffers and questions put to Sieron while not under oath, Sieron and his counsel described the

process involved in examining and assessing the condition of the properties, including enlisting

the assistance of the county treasurer to market them, which efforts proved to be unsuccessful.

-4- Sieron argued the legislative intent of the tax sale statutes is to “encourage tax buyers to

participate in this proceeding” in order to attempt to retain properties on the tax rolls, and the sale

in error statutes were designed to “give them an out if for some reason the property is not what

they thought it was when they purchased it.” He noted that, unlike normal buyers of property, a

tax lien buyer has no right to inspect the properties until given that right by the court. “We’re

buying a pig in a poke,” he said.

¶ 10 The trial court, during its oral pronouncement, asked Sieron’s counsel about the

statute’s language permitting the tax lien buyer a year to obtain a tax deed. In response, counsel

(referencing section 22-85 of the Property Tax Code (35 ILCS 200/22-85 (West 2018))) noted

unless they act within one year and record the tax deed, they lose all interest in the property.

¶ 11 The statute to which he referred, section 22-85, is titled “Failure to timely take out

and record deed; deed is void.” 35 ILCS 200/22-85 (West 2018). It says, in relevant part:

“Unless the holder of the certificate purchased at any tax sale

under this Code takes out the deed in the time provided by law, and

records the same within one year from and after the time for

redemption expires, the certificate or deed, and the sale on which it

is based, shall, after the expiration of the one year period, be

absolutely void with no right to reimbursement.” 35 ILCS 200/22-

85 (West 2018).

The trial court reasoned the buyer was entitled to a tax deed “some 10 months ago” and had

probably obtained an order of possession (which is reflected in the record), concluding:

“So, I think to say that it’s all right for the purchaser to wait for

seven or eight months and then say the property deteriorated is

-5- contrary to the intent. He could have had a tax deed the day after it

was issued. If he didn’t bother to get the tax deed I don’t think it’s

appropriate to say he can wait eight or 10 months and then say,

‘Well, the property has deteriorated. I don’t have a tax deed.’

That’s his fault he doesn’t have it. I am going to deny these

motions for sale in error.”

The trial court asked the State to prepare a written order.

¶ 12 The record reveals there was a further hearing on August 29, 2019, apparently to

address Sieron’s motion based on a bankruptcy filed by the property owner of the parcel in case

No. 18-TX-4. Instead, Sieron reargued the issues raised and addressed previously at the July

hearing and briefly discussed the bankruptcy.

¶ 13 Two orders were prepared and filed on September 16, 2019. One addressed the

motions for sale in error filed June 21, 2019, which had been discussed at the July hearing. The

other related to motions filed July 12, 2019, under section 21-310(b)(1) based on the bankruptcy

filing. The bankruptcy motions were never discussed at the July hearing and discussed only

briefly at the hearing in August. The order denying the June motions found the exhibits

stipulated into evidence failed to establish proof of substantial destruction as referenced in

section 21-310, or that the destruction occurred after the sale but before the tax deed “could have

been issued,” noting Sieron’s delay in seeking issuance of a deed. Relying on the language of

Wagner v. Rumler, 177 Ill. App. 3d 301, 532 N.E.2d 480 (1988), the trial court found it was

Sieron’s burden to establish “substantial destruction” after the sale and “prior to the time that the

tax deed could have been issued.”

-6- ¶ 14 Regarding the July motions based on an intervening bankruptcy, section 21-

310(b)(1) permits the trial court to declare a sale in error if “[a] voluntary petition under the

provisions of 11 U.S.C. Chapter 7, 11, 12, or 13 has been filed subsequent to the tax sale and

prior to the issuance of the tax deed.” 35 ILCS 200/21-310(b)(1) (West 2018). Here, the court

found the stipulated exhibits failed to identify either the person or the property in such a manner

as to conclude it related to the tax sale properties, and it found the bankruptcy was filed before

the tax sale occurred.

¶ 15 Sieron filed a motion to reconsider in October 2019, alleging: (1) “newly

obtained” evidence in the form of affidavits of Robert Gould, who identified himself as “an

independent contractor” who “regularly perform[s] services for Raven *** and Scott Sieron,”

submitted to explain the various photographs which had been admitted at the July hearing; (2) he

had one year from the date of the order for issuance of the tax deed (August 9, 2018) to obtain

and record it, and that his motions for sale in error were timely filed in June 2019; (3) the trial

court was provided sufficient evidence to establish the property had been substantially destroyed

as defined in the statute subsequent to the tax sale and prior to issuance of the tax deed; and

(4) the trial court improperly relied on language in Rumler indicating the destruction needed to

be shown to have occurred prior to the time a tax deed could have been issued.

¶ 16 Sieron’s motion also included a discussion of the process involved in the business

of purchasing property at tax sales and representations, never previously made a part of the

record, about conversations with the property owner about redemption, which did not come to

pass.

¶ 17 At the hearing on the motion in November 2019, Sieron argued, “[T]he issuance

of an order for a tax deed operates merely as a lien,” and if it is established the property has been

-7- “substantially destroyed or rendered uninhabitable or otherwise unfit for occupancy”

“subsequent to the tax sale and prior to issuance of the tax deed,” having met all other statutory

requirements, Sieron was entitled to a sale in error. The State argued the order granting him the

tax deed and the right of possession required Sieron to act in a timely manner and delaying for 11

months before claiming “substantial destruction” was unreasonable. It was the State’s position

that upon issuance of the order granting him the right to obtain a tax deed, Sieron became the

owner of the property, and his failure to record the deed for 11 months did not prevent his

ownership interest from vesting. Sieron’s counsel noted the procedure is governed by statute and

the time limits are contained therein.

¶ 18 The trial court declined to alter its earlier ruling, concluding the evidence Sieron

chose to present at the previous hearing was not sufficient to justify declaring the sales to be in

error. The trial court granted Sieron’s request for an Illinois Supreme Court Rule 304 (eff. Mar.

8, 2016) finding, and Sieron filed a timely notice of appeal.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 Simplified somewhat, on appeal Sieron claims four errors by the trial court:

(1) the trial court misinterpreted section 22-85 of the Property Tax Code (35 ILCS 200/22-85

(West 2018)) when it denied Sieron’s motions for sale in error based on a timeliness component

it read into the statute; (2) the trial court erred by entering a written order which contradicted its

oral pronouncement; (3) the trial court erred by finding there was insufficient evidence of

“substantial destruction” between the time of the tax sale and when Sieron “could have” obtained

a tax deed; and (4) the trial court erred in its application of the holding in Rumler to the facts of

-8- this case and finding Sieron had not adequately established when the substantial destruction

occurred.

¶ 22 A. Standard of Review

¶ 23 The parties agree that to the extent we are called upon to interpret provisions of

the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2018)), our review is de novo. See

Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18, 990 N.E.2d 1144 (statutory

interpretation is a question of law that we review de novo). “A de novo review is a review

without any deference to the trial court’s decision.” Shulte v. Flowers, 2013 IL App (4th)

120132, ¶ 17, 983 N.E.2d 1124. If, however, an appeal “requires us to scrutinize the trial court’s

findings of fact, we will do so deferentially, upholding those findings of fact unless they are

against the manifest weight of the evidence.” Shulte, 2013 IL App (4th) 120132, ¶ 19. Where, as

here, the trial court was required to make findings of fact about the sufficiency of the evidence of

“substantial destruction,” those findings will not be disturbed unless they are against the manifest

weight of the evidence.

¶ 24 Regarding questions of statutory construction, we are asked to determine and give

effect to the intent of the legislature, recognizing that can best be done by looking at the language

of the statute, given its plain and ordinary meaning. Hamer, 2013 IL 114234, ¶ 18. “It is

improper for a court to depart from the plain language of the statute by reading into it exceptions,

limitations, or conditions that conflict with the clearly expressed legislative intent.” Hamer, 2013

IL 114234, ¶ 18 (citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479, 639 N.E.2d 1282,

1287 (1994)). Although both parties ask us to interpret the meaning of section 21-310 relating to

sales in error, as we have said previously, even where we may believe it a matter of apparent

legislative oversight, we will not endeavor to correct that oversight “ ‘by rewriting a statute in a

-9- manner inconsistent with its clear and unambiguous language.’ ” In re Application of the County

Treasurer and ex officio County Collector, 2017 IL App (4th) 170003, ¶ 28, 83 N.E.3d 1203

(quoting In re Marriage of Murphy, 203 Ill. 2d 212, 219, 786 N.E.2d 132, 136 (2003)).

¶ 25 B. Section 21-310 and Sales in Error

¶ 26 A sale in error is a statutory creation found in section 21-310 of the Property Tax

Code (35 ILCS 200/21-310 (West 2018)). In re Application of County Treasurer & ex officio

County Collector of Warren County, 2017 IL App (3d) 160396, ¶ 8, 92 N.E.3d 921 (hereinafter

Tate). “ ‘ “Sale in error” refer to errors occurring before, or contemporaneously with, the tax sale

and forfeiture ***.’ ” In re County Treasurer & ex officio County Collector, 2020 IL App (1st)

190014, ¶ 10, 161 N.E.3d 283 (hereinafter Eeservices, Inc.) (quoting In re County Collector, 169

Ill. App. 3d 180, 183, 523 N.E.2d 617, 619 (1988)). “ ‘The claimant seeking a sale in error is

generally asking the circuit court to undo the sale of a specific parcel’s taxes for an enumerated

reason.’ ” Tate, 2017 IL App (3d) 160396, ¶ 8 (quoting Bueker v. Madison County, 2016 IL App

(5th) 150282, ¶ 50, 61 N.E.3d 237). Section 21-310 “ ‘delineates who may apply for a sale in

error, where and on what grounds the application must be made, when these grounds must occur,

and the county collector’s responsibilities in the event a sale in error is declared by the court.’ ”

Tate, 2017 IL App (3d) 160396, ¶ 8 (quoting In re Petition for Declaration of Sale in Error, 256

Ill. App. 3d 159, 162, 628 N.E.2d 1182, 1185 (1994)).

¶ 27 Section 21-310(b)(2) of the Property Tax Code provides, in relevant part:

“When, upon application of the owner of the certificate of

purchase only, it appears to the satisfaction of the court which

ordered the property sold that any of the following subsections are

applicable, the court shall declare the sale to be a sale in error:

- 10 - ***

(2) The improvements upon the property sold have been

substantially destroyed or rendered uninhabitable or otherwise

unfit for occupancy subsequent to the tax sale and prior to the

issuance of the tax deed.” 35 ILCS 200/21-310(b)(2) (West 2018).

¶ 28 Section 21-310 of the Property Tax Code “affords relief to a tax buyer from the

effect of caveat emptor purchases at void tax sales.” (Emphasis in original.) Eeservices, Inc.,

2020 IL App (1st) 190014, ¶ 14. Ideally, “each provision under section 21-310 protects a buyer

from suffering an inadvertent loss.” Eeservices, Inc., 2020 IL App (1st) 190014, ¶ 14. The

Eeservices, Inc. court explained: “ ‘Without the right of refund given by [this section], the

taxbuyer, caught by the failure of the County officers to delete from the delinquent list properties

exempt or on which the tax was already paid or doubly assessed or badly described, would suffer

the loss of his entire investment.’ ” Eeservices Inc., 2020 IL App (1st) 190014, ¶ 14 (quoting La

Salle National Bank, 1 Ill. App. 3d 470, 476, 274 N.E.2d 640, 645 (1971)).

¶ 29 Here, Sieron sought declarations of sales in error on two bases: (1) that

improvements upon the property sold have been substantially destroyed or rendered

uninhabitable or otherwise unfit for occupancy subsequent to the tax sale and prior to the

issuance of the tax deed (see section 21-310(b)(2) of the Property Tax Code) and (2) as to one of

the parcels, that a voluntary petition under the provisions of chapters 7, 11, 12, or 13 of the

Bankruptcy Act (11 U.S.C. § 101 et seq.) has been filed subsequent to the tax sale and prior to

the issuance of the tax deed (see section 21-310(b)(1) of the Property Tax Code). The State’s

objection and the trial court’s reason for denying Sieron’s motions for declaration of sales in

error were founded on their interpretation of the language of section 21-310(b)(2) for sales in

- 11 - error based on substantial destruction “subsequent to the tax sale and prior to the issuance of the

tax deed.” See 35 ILCS 200/21-310(b)(2) (West 2018). They concluded the language meant

Sieron was required to establish “substantial destruction” after the sale and “prior to the time that

the tax deed could have been issued.” (Emphasis added.) According to the trial court, this could

have been as soon as the day after the order was entered. The court’s reasoning came from

language found in Rumler.

¶ 30 In Rumler, the Third District interpreted section 260 of the Revenue Act (Ill. Rev.

Stat. 1983, ch. 120, ¶ 741) (a predecessor to section 21-310(b)(2) of the Property Tax Code),

which allowed for claims for a sale in error “ ‘upon application of the tax purchaser that the

improvements upon property sold have been substantially destroyed subsequent to the tax sale

and prior to the issuance of the tax deed.’ ” Rumler, 177 Ill. App. 3d at 303-04. The Rumler court

found that to mean “[the] plaintiff must present evidence that the destruction of the property

occurred between the date of the tax sale and the date when a tax deed could have been issued at

the end of the redemption period.” (Emphasis added.) Rumler, 177 Ill. App. 3d at 304. It is

notable that Rumler has not been cited for this proposition in any other case. A careful reading of

Rumler reveals the reviewing court’s finding was driven by the particular facts of the case and

the lack of record before it. The plaintiff testified to substantial destruction of the property after

the tax sale, although he conducted no examination of the properties beforehand beyond an

examination of the information contained on the property assessment cards. Rumler, 177 Ill.

App. 3d at 303. The appellate court, with no transcript of the proceedings, was left to determine

whether the trial court correctly found substantial destruction “subsequent to tax sale but prior to

issuance of the tax deed” based on a bystander’s report. Rumler, 177 Ill. App. 3d at 303.

Although there was evidence of substantial destruction after the tax sale, the report of

- 12 - proceedings “is void of any indication as to whether these improvements were destroyed prior to

the issuance of the deed.” Rumler, 177 Ill. App. 3d at 304. The court reasoned, under a manifest

weight of the evidence standard, regardless of whether the plaintiff has actually obtained a tax

deed, it was the plaintiff’s burden to show there had been substantial destruction of the properties

in question “between the date of the tax sale and the date when a tax deed could have been issued

at the end of the redemption period.” Rumler, 177 Ill. App. 3d at 304. “Our reasoning is that if

the improvements on each parcel were not substantially destroyed prior to the issuance of a tax

deed, then there is no good reason why the tax certificate holder should not have sought a tax

deed.” Rumler, 177 Ill. App. 3d at 304. This, it said, was because at the time a tax deed issues,

the tax purchaser becomes the record titleholder of the property and can insure against loss; but

prior thereto, a tax certificate holder may not have such an insurable interest. Rumler, 177 Ill.

App. 3d at 304. With no evidence in the record to show when substantial destruction may have

taken place during the time prior to when the deed could have been issued, the reviewing court

reversed the trial court’s finding as against the manifest weight of the evidence. Rumler, 177 Ill.

App. 3d at 304. Without an adequate record, the reviewing court was left to surmise when and

under what circumstances the tax purchaser might obtain a deed. Looking at the transaction

through the lens of a normal real estate purchase, it reasoned a tax purchaser would obtain a tax

deed as soon as possible to be able to insure it against damage. Rumler, 177 Ill. App. 3d at 304.

But we are not dealing with a normal real estate transaction here. Instead, we are addressing the

business of purchasing tax certificates.

¶ 31 On appeal, the State ignores its singular objection to the sale in error before the

trial court—the delay in seeking a tax deed—and the trial court’s clear reliance on that objection

to deny the motion when ruling from the bench. Instead, it now argues a lack of sufficient

- 13 - evidence of “substantial destruction” after the tax sale and before the time a tax deed “could

have” been obtained. But is this what is required by subsection 310(b)(2)? No.

¶ 32 Sieron’s motivation to delay obtaining a tax deed is clear from the record—for

better or worse, it is built into the process of wholesale purchases of tax certificates and is

dictated by the Property Tax Code as it is currently written. Sieron elects not to pursue a tax deed

until he determines: (1) he can get the property owner to enter into an installment agreement with

him to redeem the property for the amount of taxes owed plus statutory penalties; (2) he can get

the county to pay for the costs of marketing the property on his behalf, thereby selling it

hopefully at a profit; (3) he can obtain a buyer on his own, secure the tax deed, and then sell the

property; or (4) if none of the above pan out, he can return the property to the county as a “sale in

error,” recouping “all costs paid by the owner of the certificate of purchase or his or her assignor

which were posted to the tax judgment, sale, redemption and forfeiture record.” 35 ILCS 200/21-

315(a) (West 2018). To be clear, Sieron’s motive is not what he asserted before the trial court

and claims here—simply wanting to help keep property on the tax rolls for the benefit of the

community—this is a business designed to obtain the highest possible profit from the purchase of

low-end properties, at essentially no risk to the tax certificate purchaser. By conducting a cursory

inspection before the tax sale and then, after extending the redemption periods for the maximum

allowed by statute before conducting a more thorough inspection later, a tax purchaser like

Sieron, if unsuccessful in getting the property owner to redeem by paying him, or by sale, simply

returns the property to the county, claiming substantial destruction in the interim, and gets his

costs back.

¶ 33 Is this prohibited by subsection 310(b)(2) of the Property Tax Code?

Unfortunately, the answer to this question, like the one above, is “no.” As a matter of statutory

- 14 - construction, we look first to the language of the statute in question. Hamer, 2013 IL 114234,

¶ 18. Subsection 310(b)(2) clearly provides that if the owner of the tax certificate (Sieron, in this

case) satisfies the court that “[t]he improvements upon the property sold have been substantially

destroyed or rendered uninhabitable or otherwise unfit for occupancy subsequent to the tax sale

and prior to the issuance of the tax deed,” and has otherwise complied with all statutory

requirements, he is entitled to a sale in error. (Emphasis added.) 35 ILCS 200/21-310(b)(2)

(West 2018). The only time limitation placed on a tax sale purchaser relevant to our analysis is

found in section 22-85:

“Unless the holder of the certificate purchased at any tax sale

under this Code takes out the deed in the time provided by law, and

redemption expires, the certificate or deed, and the sale on which it

is based, shall, after the expiration of the one year period, be

absolutely void with no right to reimbursement.” 35 ILCS 200/22-

Regardless of his motive in doing so, a tax certificate purchaser is under no obligation to obtain

the tax deed ordered by the trial court, nor is he so obligated to record it at any time short of one

year after the period of redemption expires. Aside from the language found in Rumler, which we

find clearly inapposite, we are not aware of any similar case supporting the trial court’s

interpretation here.

¶ 34 The error in the reasoning of both the State and the trial court rests primarily on

their belief the trial court’s order allowing the clerk to issue a tax deed pursuant to section 22-40

(35 ILCS 200/22-40 (West 2018)) invested Sieron with an ownership interest in the properties.

- 15 - Based on the language of the statute, once the petitioner has shown compliance with all statutory

prerequisites “entitling him or her to a deed, the court shall so find and shall enter an order

directing the county clerk on the production of the certificate of purchase and a certified copy of

the order, to issue to the purchaser or his or her assignee a tax deed.” 35 ILCS 200/22-40(a)

(West 2018). Both the State and the trial court reasoned the court’s order had the effect of

transferring sufficient interest in the property to the tax purchaser as to warrant immediate or

timely issuance of a tax deed. Such is not the case. “[T]he tax sale certificate is personal

property, a form of negotiable instrument, which represents a lien on the property in favor of the

tax buyer and the tax buyer’s right to enforce the lien and institute tax deed proceedings after the

redemption period expires.” In re Application of the County Treasurer of Cook County, Illinois,

for the Judgment & Sale of Real Estate for General Taxes for the Year 1980, Cook County

Treasurer, 185 Ill. App. 3d 701, 703, 542 N.E.2d 15, 16 (1989). In In re County Treasurer & ex

officio County Collector, 373 Ill. App. 3d 679, 685, 869 N.E.2d 1065, 1074 (2007) (hereinafter

AAM/US Bank), the Second District concluded the language of the statute suggested “the order

itself does not amount to the issuance of [a tax] deed, but that steps must be taken before the

deed is issued.” As a result, it reasoned, since the county clerk issues the tax deed, “the plain

language of the above statutes provides that title is acquired at the time the county clerk issues

the tax deed, and not at the time the order for issuance of the tax deed is entered.” AAM/US Bank,

373 Ill. App. 3d at 685. The Second District found “ ‘[a] certificate of sale does not pass title to

the purchaser until the passing of the redemption period and the issuance of a tax deed.’ ”

(Emphasis in original.) AAM/US Bank, 373 Ill. App. 3d at 686 (quoting Illinois Railway

Museum, Inc. v. Siegel, 132 Ill. App. 2d 77, 82, 266 N.E.2d 724, 727 (1971)). “[O]ur supreme

court recognized that a conveyance is an essential part of vesting title, even when a court has

- 16 - authorized the sale.” AAM/US Bank, 373 Ill. App. 3d at 686 (citing Atkins v. Hinman, 7 Ill. 437,

448 (1845)). Commenting on the trial court’s observation, just like here, that a tax purchaser

could obtain the tax deed on the day the order for issuance was entered, the court held, “we do

not believe that the mere ability to acquire the tax deed endows the tax deed purchaser with the

obligations and liabilities of a titleholder.” AAM/US Bank, 373 Ill. App. 3d at 686. Addressing

Illinois tax purchasers’ claims within the context of a bankruptcy proceeding in In re McKinney,

341 B.R. 892, 896-97 (Bankr. C.D. Ill. 2006), the United States Bankruptcy Court for the Central

District of Illinois found “[a] tax sale, by itself, conveys no present rights to the buyer and takes

no present rights from the homeowner. What a tax buyer acquires is a contingent right to

possibly acquire title in the future, which right is not a real property interest. The tax buyer’s

right is represented by the tax sale certificate, which is personal property in the form of a

negotiable instrument.” The bankruptcy court went on to note the debtor’s interest in the real

property is subject to divestment only upon his failure to redeem, coupled with the tax

purchaser’s compliance with all statutory requirements and issuance of a tax deed. “It is the tax

deed alone that conveys title to the property and gives the tax deed grantee the right to

possession. [Citation.] Until the tax deed is issued, title, the right to possession and all other

incidents of ownership remain with the debtor. Moreover, unless the tax buyer obtains and

records the tax deed within one year after the time for redemption expires, his rights become

‘absolutely void.’ [Citation.]” McKinney, 341 B.R. at 897-98.

¶ 35 As a result, contrary to the trial court’s finding, no rights of ownership pass to the

tax certificate purchaser until he/she actually obtains a tax deed, and the only time constraint

placed on a tax sale purchaser is the one year after the right of redemption expires in which to

- 17 - either obtain the tax deed or forfeit all interest in the property pursuant to section 22-85. There is

no other “timeliness” requirement to be read into section 21-310(b)(2).

¶ 36 C. Evidence of “Substantial Destruction”

¶ 37 From our review of the record, we find the State did not object and the trial court

made no reference to the nature or extent of evidence presented in support of Sieron’s claims of

substantial destruction at the July 2019 hearing on his motions for sale in error. Both relied

instead on the delay in obtaining and filing a tax deed in the intervening months before seeking

sales in error. When Sieron’s counsel referenced the photographic evidence tendered in support

of his motion, he noted the State’s agreement to stipulate to its admissibility. In fact, when asked,

the State made it clear the issue was entirely separate from whether or when the property had

been inspected. The State argued:

“And you issued the order for—to grant the tax deed and they

asked to take possession of it and that was back in August of last

year. At that point in time, it’s my belief that they have—it’s their

property at that point. The actual recording of the deed is more to

put the rest of the community on notice that Mr. Sieron has rights

to that property. *** When you signed the order, it’s his house

***. *** [T]hat would be our objection to this Your Honor, that

it’s his house. We’re outside the 30 days where he could have

taken that back. The fact that he didn’t record it, um, right now, or

hasn’t recorded the tax deed yet with the clerk’s office, is—doesn’t

change things.”

- 18 - ¶ 38 Sieron’s counsel sought to persuade the trial court the statute in question allowed

him one year from entry of the order to record the deed, noting that, up to that point, Sieron had

purchased only the county’s tax lien on the property as evidenced by the tax sale certificate.

¶ 39 After hearing the arguments of counsel, the trial court explained its ruling thusly:

“The court basically ordered issuance of the tax deed some 10

months ago. Buyer was entitled to that tax deed on that date. There

was probably an order for possession issued on that date back in

[Which Sieron’s counsel acknowledged.]

So I think to say that it’s all right for the purchaser to wait

for seven or eight months and then say the property deteriorated is

contrary to the intent. He could have had a tax deed the day after it

was issued. If he didn’t bother to get the tax deed I don’t think it’s

appropriate to say he can wait eight or 10 months and then say,

‘Well, the property has deteriorated. I don’t have a tax deed.’

That’s his fault he doesn’t have it. I am going to deny these

¶ 40 The trial court made no finding regarding the evidence of “substantial

destruction” or when it may have occurred and directed the State to prepare a written order. It

does not appear any order was prepared until after a hearing in August 2019 relative to the

property alleged to be part of ongoing bankruptcy proceedings (and therefore subject to a sale in

error under section 310(b)(1)). At that time, Sieron claimed the intervening bankruptcy by the

property owner entitled him to a sale in error. Again, the State argued the failure to obtain and

- 19 - record a tax deed as the basis for denying a sale in error, and the state’s attorney noted this was

his argument as to each property, regardless of the basis for the motion for sale in error. Neither

party mentioned the evidence of the extent of damage done to the properties presented at the

hearing in July 2019, or when it may have occurred, and the trial court made no such reference in

its discussion with counsel before taking the matter under advisement.

¶ 41 The trial court then entered two written orders in September 2019, one addressing

the motions under section 21-310(b)(2) (“substantially destroyed”) and the other relating to the

intervening bankruptcy under section 21-310(b)(1). The trial court identified the two primary

components to motions for sale in error under section 21-310(b)(2): (1) substantial destruction,

and (2) prior to the issuance of the tax deed. The trial court based its denial of the motions for

sales in error on:

“the petitioner present[ing] no testimony[,] only a group of mostly

unidentified photographs which were attached to the petition for

sale in error. The photos show some need for repair but the court

finds no evidence sufficient to establish the improvements on the

property were substantially destroyed or rendered uninhabitable or

otherwise unfit for occupancy. [(noting ‘exhibit 6,’ a photo dated

April 25, 2018, said ‘the building is in fair condition’)].”

¶ 42 Concluding that since a tax deed could have been issued on August 9, 2018, the

fact that Sieron took no action to obtain and record the deed before filing motions for sale in

error on June 21, 2019, precluded the trial court from granting his motions since “there was no

proof of substantial destruction of the improvements prior to the time the tax deed could have

been issued.” As Sieron aptly argues on appeal, this is a significant shift from the sole reason

- 20 - given for denying the motion when ruling from the bench at the July 2019 hearing. Sieron

contends we should give greater consideration to the trial court’s oral pronouncement, relying

primarily on two criminal cases involving inconsistencies between a written sentencing order and

the court’s oral pronouncement of sentence. See People v. Tackett, 130 Ill. App. 3d 347, 474

N.E.2d 451 (1985); People v. Smith, 242 Ill. App. 3d 399, 609 N.E.2d 1004 (1993). Within the

context of criminal sentencing, that would normally hold true since a trial court’s oral

pronouncement of sentence controls. See People v. Smith, 2014 IL App (4th) 121118, ¶ 19, 18

N.E.3d 912. However, this is not a situation where the rulings are inconsistent. The trial court

denied the sale in error in both instances and did so on somewhat different grounds, but both

were flawed in their connection to when a tax deed could have issued. As we have discussed

above, there is no such requirement in section 310(b)(2) and we will not read one into it. See

Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117, 866

N.E.2d 227, 235 (2007) (a court may not depart from that plain language by reading into the

statute exceptions, limitations, or conditions that are not consistent with the expressed legislative

intent).

¶ 43 Sieron is correct in arguing neither the State nor the trial court questioned the

sufficiency of the photographic evidence when it was presented at the July 2019 hearing. In fact,

both the State and the court expressed little interest in the condition of the property, focusing

instead on the timeliness of pursuing the motions for sale in error in relation to when the order

for issuance of a tax deed and order for possession were entered on August 9, 2018—when a tax

deed could have been issued. In the written orders, however, the trial court made express

findings of fact from its review of the photographs, concluding, “the court finds no evidence

sufficient to establish that the improvements on the property were substantially destroyed or

- 21 - rendered uninhabitable or otherwise unfit for occupancy.” As a factual finding by the trial court,

we review it deferentially, upholding those findings unless they are against the manifest weight

of the evidence. Shulte, 2013 IL App (4th) 120132, ¶ 19. “A ruling is against the manifest weight

of the evidence only if the opposite conclusion is clearly evident.” In re Davon H., 2015 IL App

(1st) 150926, ¶ 47, 44 N.E.3d 1144. A series of photographs attached as exhibits to the motion

for declaration of sale in error in case No. 18-TX-4 begins with a photograph taken on or about

March 21, 2016 (Exhibit D), noting the property to be in “fair to poor condition.” This would

have been after the tax sale on November 17, 2015, but before the order for issuance of a tax

deed and order for possession entered on August 9, 2018.

¶ 44 The exhibit referenced by the trial court in its written order (Exhibit 6), which it

used to support its finding that “the photos show some need for repair” but “no evidence

sufficient to establish that the improvements on the property were substantially destroyed or

rendered uninhabitable or otherwise unfit for occupancy,” was taken by an independent process

server on April 25, 2018, almost four months before the order for issuance of a tax deed, who

noted, “[t]he building is in fair condition.” However, the process server was not the “in-house

reviewer” tasked with inspecting the property but was merely documenting service by posting a

notice on the front door. Sieron’s Exhibit D notes the process server “did not review the rear of

the building,” and his photos, to which the State stipulated admission, taken only three days later

on or about April 28, 2017, show the property “was noted as in poor condition, and appears to be

vacant,” “dilapidated, with the connection from the garage to the 2nd story having collapsed.”

Windows are noted to be “missing or broken,” with plaster “falling off the underlying brick

walls.” By September 17, 2018, over 30 days after entry of the order, the property is described as

in “very poor condition,” with “plaster *** cracking and peeling off the underlying brick,” and

- 22 - “[i]t appears the foundation is cracking and pulling away from the walls.” In a series of undated

photographs following the one identified as having been taken on September 17, 2018,

substantial damage to the interior of the building is evident, with walls missing, portions of the

ceiling having collapsed, and clear evidence of water and mold damage to the interior.

¶ 45 Similar photographic evidence was attached to the motions for sale in error in

case Nos. 18-TX-5 and 18-TX-7, all admitted by stipulation by the State at the July 2019

hearing. Again, the State made it clear its objection was based on what we now see was the

faulty assumption the trial court’s order for issuance of a tax deed transferred ownership of the

properties to Sieron and that his failure to obtain and record a tax deed as soon as he could

precluded his efforts to seek a sale in error. The trial court, even assuming the property had

deteriorated in the interim between the tax sale and order for issuance of a tax deed, found, “I

don’t think it’s appropriate to say he can wait eight or 10 months and then say, ‘Well, the

property has deteriorated. I don’t have a tax deed.’ That’s his fault he doesn’t have it.” Based

upon the photographs stipulated into evidence, after the tax sale but before the August 9, 2018,

order to which the trial court gave such weight, there is credible evidence of substantial damage.

The only photograph apparently relied upon by the trial court to conclude otherwise was taken

by a process server, from the front of the building only, and did not reveal the substantial damage

seen only three days later by the “in-house reviewer.” Even accepting the trial court’s

interpretation of section 310(b)(2) for the sake of argument, evidence that the property had been

“substantially destroyed, or rendered uninhabitable or otherwise unfit for occupancy subsequent

to the tax sale” and prior to when a tax deed could have issued, was present before the court. The

same is true for the other two properties as well. Based upon the photographic evidence in the

- 23 - record, we find the trial court’s finding to be against the manifest weight of the evidence. Shulte,

2013 IL App (4th) 120132, ¶ 19.

¶ 46 Contrary to Sieron’s argument on appeal, he was not prevented by the trial court

from presenting further evidence or explanation of the photographs in support of his motion; it

was simply not considered necessary by either the State or the court at the time of the July 2019

hearing and only became an issue when the written orders were entered in September 2019.

Regardless, the trial court’s finding was in error by concluding proof of substantial destruction

had to be shown to have occurred “prior to the time that the tax deed could have been issued.”

There is no such requirement in the statute. In addition, accepting the trial court’s interpretation

only for the sake of argument, there was uncontested photographic evidence showing proof of

substantial destruction even before entry of the order permitting issuance of the tax deed, and the

trial court’s finding otherwise was against the manifest weight of the evidence.

¶ 47 III. CONCLUSION

¶ 48 For the reasons set forth above, we find the trial court erred in denying the

motions for sales in error under section 21-310(b)(2) of the Property Tax Code in each of the

consolidated cases and remand for further proceedings consistent with this order. Based on our

ruling, we need not address the motion for sale in error in case No. 18-TX-4 based on section

21-3210(b)(1) (“intervening bankruptcy”), nor do we need to address Sieron’s remaining claims

of error.

¶ 49 Remanded.

- 24 -