                                       2017 IL App (3d) 150809

                                Opinion filed January 6, 2017
     ____________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2017

     In re APPLICATION OF THE COUNTY        )     Appeal from the Circuit Court
     COLLECTOR, for the Sale of Delinquent  )     of the 14th Judicial Circuit,
     Real Estate Taxes                      )     Rock Island County, Illinois.
                                             )
                                             )
     (Steve Sodeman,                        )
                                            )     Appeal No. 3-15-0809
      Petitioner-Appellant,                 )     Circuit No. 14-TX-68
                                            )
             v.                             )
                                            )
     The Rock Island County Collector,      )     Honorable
                                            )     Clarence M. Darrow
             Respondent-Appellee).          )     Judge, Presiding
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices McDade and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________


                                               OPINION


¶1          Petitioner Steve Sodeman bought a property owned by Mary Gatewood at a tax sale and

     filed for a tax deed. The trial court denied his petition because Sodeman failed to serve the

     property owner and taxpayer. He subsequently sought a sale in error, which the trial court also

     denied, finding that Sodeman did not make a bona fide attempt to comply with the statutory

     notice requirements. We affirm.
¶2                                                FACTS

¶3          Petitioner Steve Sodeman paid the taxes and received a tax sale certificate of purchase for

     real estate located at 525 9th Street in Rock Island at the annual tax sale in Rock Island County

     in December 2011. The owner and taxpayer of the property was Mary Gatewood. Sodeman

     thereafter bought the taxes due on the property in 2012 and 2013. In July 2014, Sodeman

     obtained a title search, visited the property, and determined the identity of the property’s

     occupants.

¶4          On August 4, 2014, Sodeman filed a petition for tax deed and take notices for the

     interested parties, including Gatewood. Sodeman delivered the take notices to the sheriff’s

     department and the circuit clerk for the appropriate service and he published notice. On August

     18, the take notice was filed with a certified mail receipt from the clerk’s office indicating the

     notice for Gatewood was delivered to Marissa Martin at the subject address. The sheriff’s

     department’s certified mail receipt also indicated Martin accepted notice at the subject address.

     The return sheet from the sheriff’s department stated that the notice was not personally served

     and the “subject [was] unknown.” An affidavit in support of the petition was signed by Sodeman

     and provided that Sodeman searched various county records and published notice and that

     Gatewood was served by the sheriff or by mail at the subject address.

¶5          At hearings in February and March 2015, service of interested parties, including

     Gatewood, was discussed. Sodeman acknowledged Gatewood as the property’s owner and

     taxpayer and admitted she no longer lived at the subject address. Sodeman stated that his

     affidavit provided that Gatewood was served via abode service. The trial court determined that

     there was no return of service indicating abode service. The trial court noted that Sodeman did

     not present any documentation regarding service or lack of service, either personal, substitute or


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     abode, and or any evidence Gatewood could not be found, such as the sheriff’s department

     diligent search form.

¶6           In April 2015, another hearing took place. Sodeman presented the testimony of Joel

     Keim, an employee of the Rock Island County Sheriff’s Department. He served notice on the

     occupants of the property. Gatewood was not there and the occupants did not know her

     whereabouts. Keim did not attempt any other means to serve Gatewood and did not engage in

     any further inquiry to discover her whereabouts, such as inquiring at the post office or through a

     skip trace.

¶7           Sodeman testified that he used information from the county treasurer’s and assessor’s

     offices and an internet search to locate Gatewood, which all showed her address as the subject

     property. The internet search revealed her phone number was connected to the address at issue.

     He did not call the phone number he found. He did not check the post office or ask relatives or

     the property’s occupants where Gatewood could be found. He did not check the county clerk’s

     office or the files in either of the foreclosure cases pending against Gatewood in Rock Island

     County. The limited title search he did in July 2014 did not reveal the foreclosures. The trial

     court observed that the clerk’s docket revealed foreclosures against Gatewood in 2012 and one

     pending in 2014 and that those files showed a different address for Gatewood. The court denied

     Sodeman’s petition for tax deed, finding Sodeman failed to make a diligent inquiry and effort to

     locate Gatewood.

¶8           Sodeman filed a petition for sale in error in August 2015. The County objected and a

     hearing took place to determine whether Sodeman made a bona fide attempt to comply with the

     statutory notice requirements. Sodeman testified he did not know the address he obtained for

     Gatewood from the treasurer’s and assessor’s offices was incorrect. He did not check the county


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       court files. The sheriff’s department filed a return notice but did not send a return of service to

       him. The sheriff’s department did not notify him that it served Gatewood or that it was unable to

       serve her. He also stated that the postcard notice of the tax sale he mailed to Gatewood was not

       returned so he concluded it had been delivered to her. Sodeman located Gatewood’s name on the

       Judici website but he did not know how the website worked and did not obtain any information

       from it. Sodeman was familiar with the homestead and senior property tax exemptions available

       to Illinois residents and acknowledged that the treasurer’s document from which he obtained

       Gatewood’s address indicated the subject property did not have homestead exemption. He stated

       that some people do not know to apply for the exemptions.

¶9             The trial court found that Sodeman’s efforts to serve Gatewood per the statutory

       requirements were “cursory” and not diligent and denied Sodeman’s petition for sale in error. He

       filed a motion to reconsider, which the trial court denied after a hearing. Sodeman appealed.

¶ 10                                                 ANALYSIS

¶ 11           The issue on appeal is whether the trial court erred when it denied Sodeman’s petition

       for a tax sale. Sodeman argues that the trial court’s finding that he failed to make a bona fide

       attempt to comply with the statutory requirements to serve Gatewood was in error. He maintains

       that, except for lack of notice to Gatewood, he strictly complied with the statutory requirements

       and put forth a bona fide effort sufficient for the trial court to find a sale in order.

¶ 12           To fulfill the statutory requirements for a tax deed, a buyer must (1) search the county

       records to identify the interested parties; (2) physically examine the property to identify any

       occupants; (3) file the petition for tax deed; (4) deliver a take notice form to the circuit clerk to

       be mailed to all interested parties; (5) deliver a take notice to the county sheriff for service on all

       interested parties; and (6) deliver a notice to be published. 35 ILCS 200/22-5 through 22-25


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       (West 2014); In re Application of the Kane County Collector, 297 Ill. App. 3d 745, 746-47

       (1998).

¶ 13             Where a trial court refuses to order the issuance of a tax deed due to the buyer’s failure to

       fulfill the statutory requirements and the buyer made a bona fide attempt to comply with

       statutory requirements for a tax deed to issue, the buyer may petition the court to declare the tax

       sale to be a sale in error. 35 ILCS 200/22-50 (West 2014). A sale in error ruling entitles the

       buyer to receive a refund of all the amounts he has paid. In re Application of the County

       Collector, 325 Ill. App. 3d 152, 156 (2001). It is the petitioner’s burden to establish that he

       complied with the statutory requirements or made a bona fide attempt to comply. In re

       Application of the County Collector, 219 Ill. App 3d 396, 403 (1991).

¶ 14             “A bona fide attempt is one made ‘[i]n or with good faith; honestly, openly, and

       sincerely; without deceit or fraud’ ” and “[i]t is ‘[r]eal, actual, genuine, and not feigned.’ ” Kane

       County Collector, 297 Ill. App. 3d at 748 (quoting Black’s Law Dictionary 177 (6th ed. 1990)).

       Whether a buyer made a bona fide attempt to comply with the statutory requirements is a factual

       question and we will not reverse a trial court’s determination unless it was against the manifest

       weight of the evidence. Kane County Collector, 297 Ill. App. 3d at 748.

¶ 15             Sodeman maintains he demonstrated that he made a bona fide attempt to comply with the

       statutory notice requirements and is entitled to a sale in error. The trial court found that he did

       not exercise diligence in locating and serving Gatewood and therefore did not make a bona fide

       attempt to obtain the tax deed. The trial court determined “the bare minimum” efforts to serve

       Gatewood put forth by Sodeman did not support a bona fide attempt to comply. We agree with

       the trial court.




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¶ 16          To be entitled to a finding of a sale in error and a refund, Sodeman had to establish that

       he made a good faith effort to fulfill the statutory steps necessary to obtain a tax deed. The

       mandatory steps included providing notice to the property owner and taxpayer, Gatewood. There

       is no dispute that Gatewood was never personally served notice of the tax sale of her property. In

       fact, in his motion to reconsider the denial of his request for a sale in error, Sodeman submitted

       that he complied with the statutory notice requirements, with “one exception”, Gatewood, to

       whom he failed to give notice. He further submitted that his strict compliance with all the

       statutory requirements, with the “one exception” of lack of notice to Gatewood, constituted a

       bona fide attempt to comply.

¶ 17          His actions do not support a finding of a bona fide effort. When Sodeman made a

       personal visit to the property, he was told by the occupants that Gatewood did not live there and

       they did not know her whereabouts. Although this information conflicted with the address he

       received from the treasurer’s and assessor’s offices, he did not contact any other public

       recordkeepers, such as the circuit clerk’s office. Had he performed a search of the clerk’s

       website, he would have found Gatewood’s current address in the foreclosure files. He was aware

       there was no homestead exemption on the property. He did not call the phone number he

       obtained from an internet search. He did not receive a return of service from the sheriff’s

       department or check the file for one. The certified mail receipt from the clerk’s mailing of the

       notice indicated the notice was delivered to Marissa Martin at the subject address and that

       Gatewood was unknown there.

¶ 18          Sodeman persisted in maintaining that he was entitled to the tax deed or to a finding of

       sale in error despite knowing that Gatewood was not an occupant at the subject property and was

       never properly served. He attested in his affidavit in support of his petition for a tax deed that


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       abode service was secured but did not present any information to support his claim. He knew

       there was no homestead exemption on the property but surmised it was due to Gatewood’s

       failure to claim it. Sodeman was aware she had not been served, and as the trial court observed,

       did not take any further steps to find Gatewood. Sodeman’s actions do not demonstrate good

       faith or a real, genuine attempt to comply with the statutory notice requirements. The trial court

       found that although he made “some efforts,” Sodeman failed to comply with the minimum

       requirements of the statute and did not demonstrate a bona fide attempt to comply. We find the

       trial court did not err in denying his petition for a sale in error.

¶ 19           For the foregoing reasons, the judgment of the circuit court of Rock Island County is

       affirmed.

¶ 20           Affirmed.




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