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                                    Appellate Court                            Date: 2018.06.14
                                                                               16:58:45 -05'00'




           In re Application of the Will County Collector, 2018 IL App (3d) 160659



Appellate Court         In re APPLICATION OF THE WILL COUNTY COLLECTOR
Caption                 (Citimortgage, Inc., Petitioner-Appellee, v. Sass Muni V, Respondent-
                        Appellant).



District & No.          Third District
                        Docket No. 3-16-0659



Filed                   April 16, 2018



Decision Under          Appeal from the Circuit Court of Will County, No. 11-TX-277; the
Review                  Hon. John C. Anderson, Judge, presiding.



Judgment                Affirmed.


Counsel on              Timothy A. Clark, of McGrath & Clark PC, of Manhattan, for
Appeal                  appellant.

                        Jeffrey S. Blumenthal and Rodney C. Slutzky, of Slutzky &
                        Blumenthal, of Chicago, for appellee.



Panel                   JUSTICE HOLDRIDGE delivered the judgment of the court, with
                        opinion.
                        Justices McDade and Wright concurred in the judgment and opinion.
                                               OPINION

¶1       The circuit court entered an order directing that a tax deed be issued to the respondent, Sass
     Muni V (SASS), as to a parcel of real property. More than two years later, the petitioner,
     Citimortgage, Inc. (Citi), filed a petition seeking relief from the circuit court’s order pursuant
     to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). In its
     petition, Citi argued in the alternative that (1) the tax deed was void with no right to
     reimbursement under section 22-85 of the Property Tax Code (Code) (35 ILCS 200/22-85
     (West 2012)) because SASS failed to record the deed within one year of the expiration of the
     redemption period or (2) the circuit court’s order issuing the tax deed was void because the tax
     sale notices served by SASS were so devoid of any meaningful information as to violate due
     process.
¶2       The parties filed cross-motions for summary judgment on Citi’s petition. The circuit court
     granted Citi’s motion for summary judgment and denied SASS’s motion for summary
     judgment. SASS filed a motion to reconsider, which the circuit court denied. SASS appeals the
     circuit court’s judgment.

¶3                                                 FACTS
¶4       On July 18, 2011, SASS filed a petition for a tax deed alleging that (1) SASS had
     purchased the delinquent 2007 real estate taxes for a property in Will County, (2) SASS had
     served or diligently attempted to serve a tax sale notice to all persons or parties with an interest
     in the property, as required by section 22-30 of the Code (id. § 22-30), and (3) the property had
     not been redeemed from sale by any such party. On July 19, 2012, the circuit court entered an
     order granting SASS’s petition and directing the issuance of a tax deed to SASS. The circuit
     court’s July 19, 2012, order stated that SASS had “either served or exercised diligent effort in
     attempting to find and serve” a timely tax sale notice on any and all persons or parties entitled
     to such notice. The order further stated that the real estate at issue had not been redeemed from
     the tax sale held on November 6, 2008, and that “the time to redeem this property from the sale
     expired on November 3, 2011.” SASS recorded the deed on September 7, 2012.
¶5       On September 12, 2014, more than two years after the circuit court entered the order
     directing the issuance of a tax deed, Citi filed a petition for relief from that order under section
     2-1401 of the Code of Civil Procedure. On December 9, 2014, Citi filed an amended petition
     under section 2-1401 arguing in the alternative that (1) the tax deed was void with no right to
     reimbursement pursuant to section 22-85 of the Code because it was not recorded within one
     year of the expiration of the redemption period or (2) the circuit court’s order was void because
     the tax sale notices contained the incorrect property PIN number and incorrectly described the
     property, and were therefore so devoid of meaningful information as to violate due process.
     Citi filed a motion for summary judgment in support of its petition.
¶6       SASS filed a cross-motion for summary judgment arguing that (1) the circuit court’s order
     was not void, (2) Citi had failed to file its petition within the two-year time limit prescribed by
     section 2-1401 and failed to demonstrate diligence as required by that section, and (3) Citi had
     failed to establish that it was entitled to any of the four grounds for relief listed in section 22-45
     of the Code (id. § 22-45). The circuit court informed the parties that it would consider the
     pleadings and issue its ruling by mail without hearing oral argument.


                                                   -2-
¶7         On March 22, 2016, the circuit court e-mailed both parties’ counsel stating that it had
       reviewed the pleadings and was “inclined to find in favor of [Citi] based on inadequate notice
       of tax sale, and declare void the July 19, 2012, order and the September 7, 2012, tax deed.” The
       court asked the parties to submit an order consistent with the court’s direction. The parties
       submitted a draft order, which the court signed on March 28, 2016. The order contained a
       finding that the tax sale notices were insufficient but did not include an express finding that the
       tax deed was void with no right to reimbursement because it was not recorded within one year
       of the expiration of the redemption period.1 On June 16, 2015, after Citi had tendered certain
       monies as required by section 22-80 of the Code (id. § 22-80), the circuit court entered a final
       order declaring both the circuit court’s order and the tax deed void.
¶8         Thereafter, SASS filed a motion to reconsider. The circuit court conducted a hearing on
       SASS’s motion. On September 28, 2016, the circuit court issued an order denying SASS’s
       motion to reconsider. The circuit court’s September 28, 2016, order provided that the July 19,
       2012, court order issuing the tax deed was void “for lack of adequate service and notice.”
       Moreover, in the September 28, 2016, order, the circuit court expressly modified its prior
       summary judgment order “on its own motion, *** nunc pro tunc, to reflect that the tax deed
       was void without right of reimbursement.”
¶9         This appeal followed.

¶ 10                                              ANALYSIS
¶ 11       On appeal, SASS argues that the circuit court erred in granting Citi’s motion for summary
       judgment and in denying SASS’s motion for summary judgment. Specifically, SASS
       challenges the circuit court’s rulings that the tax deed was void without right of reimbursement
       and that the tax sale notices were insufficient.
¶ 12       When a section 2-1401 petition raises a purely legal challenge to a judgment by alleging
       that the judgment is void, we review the circuit court’s ruling on the petition de novo. Warren
       County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 47; Tuna v. Airbus,
       S.A.S., 2017 IL App (1st) 153645, ¶ 34. Moreover, when parties file cross-motions for
       summary judgment, as here, they agree that only a question of law is involved and invite the
       court to decide the issues based on the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. When a
       case is decided through summary judgment, our review is de novo. Id. ¶ 30.
¶ 13       As noted above, the circuit court implicitly accepted Citi’s argument that the tax deed was
       void without right of reimbursement under section 22-85 of the Code because the deed was not
       recorded within one year of the expiration of the redemption period. Section 22-85 provides, in
       pertinent part, that
               “[u]nless 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 2012).

          1
            The order stated that the court “adopts the arguments asserted by [Citi]” and “grants summary
       judgment on the bases set forth therein.” However, the following sentence in the order stated merely
       that “[n]otice was insufficient.” The order did not expressly state that the tax deed was void under
       section 22-85 of the Code.

                                                    -3-
       The length of the redemption period is set by statute. See id. § 21-350(b). However, the
       expiration of the statutory redemption period may be extended if the certificate holder (i.e., the
       purchaser of the property during the tax sale or the purchaser’s assignee) files a notice
       extending the redemption period before the redemption period expires. Id. §§ 21-350(c),
       21-385; In re Application of the County Treasurer, 2012 IL App (1st) 101976 (CCPI).
¶ 14       Because the property at issue in this case was improved with a single family dwelling at the
       time of the tax sale, the statutory redemption period expired two years and six months after the
       date of sale. 35 ILCS 200/21-350(b) (West 2012). The sale occurred on November 6, 2008.
       Thus, absent a valid extension, the redemption period expired on May 6, 2011. The certificate
       holder had to record the deed within one year of that date (i.e., by May 6, 2012) or the deed,
       and the tax sale upon which it was based, would be rendered null and void. Id. § 22-85. In this
       case, the deed was not recorded until September 7, 2012. Thus, unless the certificate holder
       filed a timely notice to extend the statutory redemption period, the tax sale deed at issue in this
       case is a nullity.
¶ 15       SASS maintains that it filed notices extending the redemption period to November 3, 2011.
       In support of this assertion, SASS produced two “Extension List Reports” purporting to extend
       the expiration of the redemption period. Both reports indicate that the purported extensions
       were filed by “Sass Muni V,” “[f]or Sass Fund.” The first report, which purported to extend the
       redemption period for the property at issue to July 12, 2011, listed “MUNI V dtr” under the
       “WinBid” column. The second report, which purported to extend the redemption period for the
       same property to November 3, 2011, listed “US BANK-CUST/SASS MUNI V dtr” in the
       “WinBid” column. SASS argues that these notices validly extended the redemption period to
       November 3, 2011, which gave SASS until November 3, 2012, to record the deed.
¶ 16       As noted above, however, only the certificate holder (i.e., the purchaser of the property at
       the tax sale or the assignee of the purchaser) may extend the redemption period. Id.
       §§ 21-350(c), 21-385; CCPI, 2012 IL App (1st) 101976, ¶¶ 39-41. Citi argues that the
       extension notices filed by SASS had no legal effect (i.e., they did not extend the redemption
       period) because SASS was not the certificate holder at the time it filed the extension notices.
       We agree. The tax sale certificate for the property at issue identifies the purchaser as “US
       BANK-CUST/SASS MUNI V DTR” (US Bank). SASS does not argue that it is the same
       entity as US Bank, and it produced no evidence to that effect before the circuit court. Nor does
       SASS claim that it was acting as US Bank’s agent when it filed the extension notices.
       Moreover, in its amended answer to Citi’s 2-1401 petition, SASS admitted that the tax sale
       certificate was never assigned. Although SASS’s unverified petition for tax deed baldly
       alleged that SASS purchased the real estate at issue on November 6, 2008, SASS has never
       produced any evidence supporting that allegation. SASS has never presented any affidavits,
       testimony, or other documentary evidence rebutting Citi’s argument that “US Bank,” and not
       SASS, was the purchaser and the holder of the certificate of sale. As noted, the first notice of
       extension in this case was filed by “Sass Muni V” (“[f]or Sass Fund”), not by US Bank.
       Because this notice of extension was not filed by the certificate holder, it had no legal effect
       and could not have extended the statutory redemption period. CCPI, 2012 IL App (1st)
       101976, ¶ 41 (holding that a notice purporting to extend the redemption period filed by a
       purchaser that had previously assigned the tax sale certificate and all of its rights in the
       property to another entity was a “nullity” and that the original redemption expiration date
       remained in effect).

                                                    -4-
¶ 17        The second notice of extension was also of no legal effect. Although the second notice lists
       the certificate holder (US Bank) in the “WinBid” column, it appears that the second notice was
       filed by “Sass Muni V” (“[f]or Sass Fund”), not by the certificate holder. However, even
       assuming arguendo that the certificate holder filed the second notice of extension, that notice
       would still have been a nullity because it was filed after the statutory redemption period
       expired on May 6, 2011. In re Application of the County Treasurer & ex officio County
       Collector, 333 Ill. App. 3d 355, 361-62 (2002) (Sirt). As noted above, the statutory redemption
       period was not validly extended by the first notice. Accordingly, the initial redemption
       expiration date of May 6, 2011, remained in effect.2
¶ 18        Because SASS did not record the tax deed until September 7, 2012, 16 months after the
       expiration of the redemption period, the deed and the tax sale on which is was based are void
       under section 22-85. 35 ILCS 200/22-85 (West 2012); see also CCPI, 2012 IL App (1st)
       101976, ¶ 41. Accordingly, the circuit court properly vacated its prior order issuing the tax
       deed. Sirt, 333 Ill. App. 3d at 360, 362.
¶ 19        SASS’s arguments to the contrary are unavailing. SASS notes that, in its July 19, 2012,
       order directing the issuance of a tax deed, the circuit court expressly found that “[t]he time to
       redeem the property from the sale expired on November 3, 2011.” According to SASS, this
       statement shows that the circuit court accepted SASS’s argument that the redemption period
       had been validly extended to that date. However, the circuit court subsequently granted Citi’s
       petition to vacate the July 19, 2012, order. In so ruling, the circuit court properly held that the
       tax deed was “void without right of reimbursement,” thereby rejecting SASS’s argument that
       the redemption period had been extended. Thus, the circuit court’s initial finding to the
       contrary no longer stands. In any event, for the reasons set forth above, the circuit court’s
       initial finding that the redemption period had been extended was incorrect.
¶ 20        SASS further argues that the circuit court erred by granting Citi’s section 2-1401 petition
       because Citi failed to file its petition within the two-year deadline prescribed by section 2-1401
       and failed to meet the pleading requirements of that section. Specifically, SASS argues that
       Citi failed to allege and prove that it acted with due diligence in defending the original action
       and failed to plead diligence in bringing the 2-1401 petition to vacate and the existence of a
       meritorious defense. SASS further maintains that Citi’s petition was fatally deficient for the
       additional reason that Citi failed to allege one of the four grounds upon which relief may be
       granted from an order for tax deed more than 30 days after entry of the order, as mandated by
       section 22-45 of the Code (35 ILCS 200/22-45 (West 2012)).3 In support of these arguments,

           2
              In its verified responses to Citi’s request to admit facts, SASS admitted that no other extension
       notices were filed in connection with the tax sale at issue.
            3
              Section 22-45, which applies in conjunction with section 2-1401, lists four grounds upon which
       relief may be had from a tax deed by means of a section 2-1401 petition filed more than 30 days after
       entry of the order awarding the tax deed: (1) proof that the taxes were paid prior to the sale, (2) proof
       that the property was exempt from taxation, (3) proof by clear and convincing evidence that the tax
       deed had been procured by fraud or deception by the tax purchaser or his or her assignee, or (4) proof by
       a person or party holding a recorded ownership or other recorded interest in the property that he or she
       was not named as a party in the publication notice as set forth in section 22-20, and that the tax
       purchaser or his or her assignee did not make a diligent inquiry and effort to serve that person or party
       with the notices required by sections 22-10 through 22-30. 35 ILCS 200/22-45 (West 2012); In re
       Application of the County Collector, 397 Ill. App. 3d 535, 543 (2009) (Devon Bank).

                                                       -5-
       SASS asserts that the circuit court’s order directing the issuance of a tax deed cannot be
       deemed “void” because it is undisputed that the circuit court had jurisdiction to enter the order.
       SASS maintains that, if the circuit court made an error in issuing the order, that would render
       the order “voidable,” but not “void.” According to SASS, such an order may be vacated only
       when a petitioner meets both the requirements of section 2-1401 and the requirements of
       section 22-45 of the Code.
¶ 21       We do not find these arguments persuasive. The issue is not whether the court’s order was
       void for lack of jurisdiction. (It was not.) Rather, the issue is whether the tax deed itself and the
       order issuing the deed were void under section 22-85 of the Code. Sirt, 333 Ill. App. 3d at 360.
       Section 22-85 provides that, unless the deed is recorded within one year of the expiration of the
       governing redemption period, “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 2012). As noted above, Citi’s 2-1401 petition alleged that SASS’s
       failure to record the deed within one year of the expiration of the initial redemption period
       (which was not properly extended) rendered the tax deed and the order issuing the deed void
       under section 22-85. A void judgment may be attacked at any time, either directly or
       collaterally. CCPI, 2012 IL App (1st) 101976, ¶ 31; Devon Bank, 397 Ill. App. 3d at 542.
       Courts have a duty to vacate and expunge void orders from court records and thus may declare
       an order void sua sponte. Sirt, 333 Ill. App. 3d at 359; see also CCPI, 2012 IL App (1st)
       101976, ¶ 31. In addition, section 2-1401 expressly provides that “[n]othing contained in this
       Section affects any existing right to relief from a void order or judgment, or to employ any
       existing method to procure that relief.” 735 ILCS 5/2-1401(f) (West 2008). A section
       2-1401(f) petition alleging voidness is exempt from the general requirements of section 2-1401
       petitions, such as alleging a meritorious defense and due diligence. Sarkissian v. Chicago
       Board of Education, 201 Ill. 2d 95, 104 (2002); see also Warren County Soil & Water
       Conservation District, 2015 IL 117783, ¶ 48; CCPI, 2012 IL App (1st) 101976, ¶ 31; Devon
       Bank, 397 Ill. App. 3d at 543.
¶ 22       Thus, contrary to SASS’s argument, Citi was not required to comply with the requirements
       of section 2-1401 or section 22-45 of the Code in order to challenge the tax deed or the circuit
       court’s order awarding the deed. CCPI, 2012 IL App (1st) 101976, ¶¶ 30-31. Given the
       evidence presented in this case, the circuit court properly vacated that prior order and granted
       Citi’s motion for summary judgment.
¶ 23       Because we hold that the tax deed at issue is void under section 22-85 and we affirm the
       circuit court’s judgment on that basis, we do not need to address SASS’s challenge to the
       circuit court’s additional holding that the tax deed was void because the tax sale notices were
       so insufficient as to violate due process.

¶ 24                                      CONCLUSION
¶ 25       For the reasons set forth above, the judgment of the circuit court of Will County is
       affirmed.

¶ 26       Affirmed.




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