                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




   Chicago Title Insurance Co. v. Aurora Loan Services, LLC, 2013 IL App (1st) 123510




Appellate Court            CHICAGO TITLE INSURANCE COMPANY, as Subrogee of
Caption                    WATERSIDE PARTNERS, LLC, Plaintiff-Appellant, v. AURORA
                           LOAN SERVICES, LLC, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-12-3510


Filed                      August 30, 2013


Held                       Plaintiff’s complaint alleging that defendant breached the special
(Note: This syllabus       warranty deed by which it conveyed certain property to plaintiff’s insured
constitutes no part of     was properly dismissed, since the encumbrance arising from a tax sale in
the opinion of the court   2007 prior to defendant’s ownership of the property was not warranted
but has been prepared      against in the special warranty deed.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 12-L-4228; the Hon.
Review                     John C. Griffin, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Flamm Teibloom & Stanko, Ltd., of Chicago (John W. Stanko, Jr., of
Appeal                      counsel), for appellant.

                            McGinnis Wutscher Beiramee LLP, of Chicago (Ralph T. Wutscher, F.
                            John McGinnis, and Kevin M. Hudspeth, of counsel), for appellee.


Panel                       JUSTICE PIERCE delivered the judgment of the court, with opinion.
                            Presiding Justice Neville and Justice Hyman concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Plaintiff, Chicago Title Insurance Company, appealed the circuit court’s order granting
        defendant’s motion to dismiss the complaint with prejudice pursuant to section 2-619 of the
        Code of Civil Procedure (Code). 735 ILCS 5/2-619 (West 2010). For the reasons that follow,
        we affirm the circuit court’s order.

¶2                                         BACKGROUND
¶3           Plaintiff filed a one-count verified complaint on April 20, 2010, for breach of special
        warranty deed. According to plaintiff’s complaint, Aurora Loan Services, LLC (Aurora),
        conveyed the subject property located at 201 N. Westshore Drive, Unit 2603, in Chicago,
        Illinois, to Waterside Partners, LLC (Waterside), by special warranty deed on February 23,
        2010. The special warranty deed was recorded on March 11, 2010. Chicago Title Insurance
        Company (Chicago Title) issued an owner’s policy of title insurance for the subject property
        on March 11, 2010. Plaintiff alleged that Aurora breached its special warranty that it did not
        do anything or suffer anything to be done to encumber the property when Aurora: (1) failed
        to redeem a tax sale that was held prior to Aurora’s ownership of the subject property; and
        (2) did not notify Waterside of a pending tax deed proceeding that ultimately divested
        Waterside of its interest in the property.
¶4           The following facts are agreed to by the parties. Pursuant to a judicial sale resulting from
        a foreclosure action, Aurora Loan Services obtained title to the property from Intercounty
        Judicial Sales Corporation on September 9, 2008. Prior to Aurora receiving the deed,
        however, delinquent special assessment taxes were purchased by the Salta Group, Inc.
        (Salta), on June 22, 2007. Salta recorded a lis pendens notice against the property. On
        February 22, 2010, Salta filed a petition for a tax deed under the June 22, 2007 tax sale. On
        February 23, 2010, Aurora conveyed the property to Waterside by special warranty deed. The
        tax sale was redeemable until June 21, 2010. Aurora did not redeem the 2007 tax sale


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     although it did pay the special assessment taxes in 2009 and 2010. Aurora did not notify
     Waterside of the 2007 tax sale.
¶5       On March 2, 2010, Salta served Aurora with notice of a petition for issuance of a tax
     deed. Aurora did not notify Waterside of the petition for a tax deed. On October 29, 2010,
     a tax deed issued and Salta obtained title to the property. The tax deed was recorded on
     November 17, 2010. Waterside was then divested of its interest in the property. On
     December 6, 2010, Chicago Title paid its insured, Waterside, the policy limit and appraised
     value of the property, $290,000. Chicago Title, as Waterside’s subrogee, thereafter filed this
     lawsuit.
¶6       The special warranty deed executed by Aurora provided that Aurora “does covenant,
     promise and agree, to and with [Waterside], their heirs and assigns, that it has not done or
     suffered to be done anything whereby the said premises hereby granted are, or may be, in any
     manner encumbered or charged.” Plaintiff alleged that the title insurance policy was issued
     without an exception for the 2007 tax sale and Waterside suffered a full title loss because of
     the issuance of the tax deed to Salta. Plaintiff alleged that defendant breached its special
     warranty in that it allowed the encumbrance of the lis pendens notice to remain on the
     property on the day the special warranty deed was delivered and recorded.
¶7       Defendant moved to dismiss the complaint pursuant to sections 2-603 and 2-619 of the
     Code. 735 ILCS 5/2-603, 2-619 (West 2010). Defendant argued that the complaint should
     be dismissed pursuant to section 2-619 of the Code because it cannot be held liable for
     Waterside’s loss under the terms of the special warranty deed. Specifically, defendant argued
     that the plain language of the special warranty was limited to actions done or suffered to be
     done by Aurora which created an encumbrance. Defendant argued that the encumbrance
     predated Aurora’s ownership of the property and, therefore, was not within the scope of the
     special warranty made to Waterside. Aurora argues that the property was sold for unpaid
     taxes on June 22, 2007 and it did not obtain title to the property until September 9, 2008.
     Thus, the prior owner of the property, and not Aurora, caused the tax sale to occur on June
     22, 2007. Therefore, defendant argued, under the terms of the special warranty deed, Aurora
     did not “do or suffer to be done” anything to cause the tax sale encumbrance and it cannot
     be held liable for an encumbrance caused by the prior owner.
¶8       Plaintiff argued in response that under the special warranty deed, defendant had (1) a duty
     to notify Waterside of the existence of the tax sale; and (2) defendant breached the covenant
     against encumbrances by (a) failing to redeem the property from the tax sale; and (b) failing
     to notify Waterside of the petition for a tax deed. Plaintiff argued that defendant’s inaction
     encumbered the property by creating a defect in title.
¶9       On October 25, 2012 after full briefing and a hearing on the motion, the circuit court
     granted the section 2-619 motion to dismiss with prejudice. The circuit court found that
     because the delinquent special assessment tax encumbrance predated Aurora’s ownership of
     the property, the encumbrance did not occur while Aurora held title and Aurora did not cause
     the encumbrance, therefore, Aurora did not breach the special warranty deed. The circuit
     court also found that Aurora did not breach the special warranty deed for failing to notify
     Waterside of the existence of the tax deed petition.


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¶ 10                                           ANALYSIS
¶ 11        Plaintiff argues that the circuit court erred in granting defendant’s motion and dismissing
       the complaint with prejudice pursuant to section 2-619 of the Code. A section 2-619 motion
       for involuntary dismissal admits the legal sufficiency of the complaint, but raises defects,
       defenses, or other affirmative matter which avoids the legal effect or defeats a plaintiff’s
       claim. 735 ILCS 5/2-619(a)(9) (West 2010); Mauvais-Jarvis v. Wong, 2013 IL App (1st)
       120070, ¶ 64. The purpose of a section 2-619 motion to dismiss is to “provide litigants with
       a method of disposing of issues of law and easily proved issues of fact–relating to the
       affirmative matter–early in the litigation.” (Emphasis omitted.) Reynolds v. Jimmy John’s
       Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 30. Affirmative matter is “something in the
       nature of a defense that negates the cause of action completely or refutes crucial conclusions
       of law or conclusions of material fact contained in or inferred from the complaint.” In re
       Estate of Schlenker, 209 Ill. 2d 456, 461 (2004); Illinois Graphics Co. v. Nickum, 159 Ill. 2d
       469, 486 (1994). When a defendant has initially satisfied the burden of presenting an
       affirmative matter, the burden then shifts to plaintiff “to establish that the defense is
       unfounded or requires the resolution of an essential element of material fact before it is
       proven.” (Internal quotation marks omitted.) Schroeder v. RGIS, Inc., 2013 IL App (1st)
       122483, ¶ 24 (quoting Reilly v. Wyeth, 377 Ill. App. 3d 20, 36 (2007)).
¶ 12        In reviewing a section 2-619 motion, the court accepts as true all well-pleaded facts and
       all reasonable inferences that may be drawn from those facts, construing them in the light
       most favorable to the nonmovant. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352
       (2008); Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Our review of a section 2-619 dismissal
       of a complaint is de novo. Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 64.
¶ 13        The gist of plaintiff’s breach of special warranty theory is that, although defendant did
       not cause the encumbrance, defendant failed to remove the encumbrance when warranting
       that it did not do anything or suffer anything to be done to encumber the property. Plaintiff
       argues that defendant breached the special warranty in one or all of three ways: (1) it
       conveyed title subject only to taxes “not yet due or payable” even though there had been a
       prior sale for delinquent taxes; (2) it conveyed title even though there had been a prior sale
       for delinquent taxes with a lis pendens recorded against the property; and (3) after it was
       served with notice of the tax deed proceeding, Aurora (a) failed to redeem the property or (b)
       notify Waterside of Salta’s tax deed petition. Plaintiff argues that the circuit court erred in
       finding that the encumbrance was caused by acts of the owner before Aurora, therefore,
       Aurora did not breach the special warranty deed, negating plaintiff’s claim. We affirm, and
       find the circuit court did not err in dismissing plaintiff’s complaint with prejudice.
¶ 14        The primary goal in construing a deed is to ascertain the intent of the parties. Diaz v.
       Home Federal Savings & Loan Ass’n of Elgin, 337 Ill. App. 3d 722, 727 (2002). “[I]f
       language contained in an instrument has a well known meaning and significance in law, it
       will be presumed such meaning was in the minds of the parties using it, unless a contrary
       intent is made manifest by other language in the deed.” Tallman v. Eastern Illinois & Peoria
       R.R. Co., 379 Ill. 441, 444 (1942).


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¶ 15        “A warranty deed is a stipulation by the grantor in which he guarantees to the grantee that
       title to the property at issue will be good and that the grantor’s possession is undisturbed.”
       Midfirst Bank v. Abney, 365 Ill. App. 3d 636, 644 (2006). A special warranty deed is “[a]
       deed in which the grantor covenants to defend the title against only those claims and
       demands of the grantor and those claiming by and under the grantor.” Black’s Law
       Dictionary 477 (9th ed. 2009). A special warranty is a limited form of warranty and recovery
       is only available if the defect in title occurs because of an act of the grantor. 20 Am. Jur. 2d
       Covenants, Conditions, & Restrictions § 62 (2005). This limited warranty “does not render
       the grantor liable for defects in the title based on events that transpired when the property
       was in the hands of a prior titleholder.” Id. Professor Richard A. Powell notes:
            “If the grantor covenants to warrant and defend title to the property against all claims
            whatsoever, regardless of their source, the covenant is a general warranty. However, if
            the grantor covenants to warrant and defend the title only against claims arising by,
            through or under the grantor, it is a special warranty. Under a special warranty, if the
            claim arose under, or due to the actions of, a prior owner of the land, the covenantor has
            no liability. However, under a general warranty, if a claim is validly asserted against the
            property, regardless of who is responsible for its existence, the covenantor is liable.” 14
            Richard R. Powell, Powell on Real Property § 81A.06(2)(d)(iii), at 81A-122-23 (Michael
            Allan Wolf ed., 2000).
¶ 16        In considering this appeal, we found no Illinois case law that provides insight into the
       nature of a special warranty deed. Jurisdictions that frequently employ special warranty deeds
       inform our analysis of the issues. Courts have found that the grantor of a special warranty
       deed, unlike a general warranty deed, “does not warrant against defects in the title that
       existed before grantor was deeded the property.” (Internal quotation marks omitted.) Morello
       v. Land Reutilization Comm’n, 659 N.W.2d 310, 314 (Neb. 2003). The Florida district court
       discussed the use of special warranty deeds observing:
            “Special warranty deeds are used when the grantor is unwilling to warrant against
            possible defects arising before he acquired title. Frequently, tax title holders, particularly
            those claiming through an administrative tax deed, who have not prosecuted a quiet title
            action against the former owners, convey by special warranty deed. A special warranty
            deed is, of course, effective to convey all the title and estate of the grantor. The covenants
            as such have no operative effect; they simply define the scope of the liability of the
            grantor for breach of covenant if less than an indefeasible title is passed.” (Internal
            quotation marks omitted.) Harris v. Sklarew, 166 So. 2d 164, 166 (Fla. Dist. Ct. App.
            1964).
¶ 17        A special warranty against title or encumbrances “is breached only if the grantor’s own
       conduct creates an encumbrance on the title.” ASK Realty II Corp. v. First American Title
       Insurance Co., No. Civ. CCB-04-1400, 2004 WL 1254005, at *18 (D. Md. June 7, 2004).
       The nature of a special warranty deed does not require a grantor to extinguish all
       encumbrances on a property in existence at the time the property is conveyed through a
       special warranty deed. Woolf v. 1417 Spruce Associates, L.P., 68 F. Supp. 2d 569, 572 (E.D.
       Pa. 1999). This would render the distinction between a general warranty and a special
       warranty meaningless. Id. The superior court of Delaware observed:

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                 “A covenant of special warranty is one the operation of which is limited or restricted
            to certain persons or claims. As a general rule, where a vendee receives a special
            warranty or quitclaim conveyance, he takes the estate subject to all the disadvantages that
            it was liable to in the hands of the vendor, and the law will presume notice of all
            encumbrances, either legal or equitable. The fact that a vendor refuses to make a full and
            complete assurance of title is said to be sufficient to excite suspicion and put the party
            upon inquiry.” Indian Harbor, Inc. v. Sea & Pines, Inc., 1987 WL 12424, at *3 (Del.
            Super. Ct. June 10, 1987).
¶ 18        In view of the foregoing, we find the special warranty made by Aurora defined the scope
       of its liability and placed Waterside on notice that it warranted only against title defects that
       were caused or created by its own conduct and that it was not responsible for defects arising
       before it acquired title and it was not required to extinguish all encumbrances on the property
       at the time of conveyance through the use of a special warranty deed.
¶ 19        The special warranty deed at issue provides that Aurora “does covenant, promise and
       agree, to and with [Waterside], their heirs and assigns, that it has not done or suffered to be
       done anything whereby the said premises hereby granted are, or may be, in any manner
       encumbered or charged.”
¶ 20        An encumbrance is “any right to, or interest in, land which may subsist in a third party
       to the diminution of the value of the estate, but consistent with the passing of the fee by
       conveyance.” (Internal quotation marks omitted.) Inland Real Estate Corp. v. Oak Park Trust
       & Savings Bank, 127 Ill. App. 3d 535, 541 (1983). In Rhone v. First American Title
       Insurance Co., 401 Ill. App. 3d 802, 808 (2010), we discussed various aspects of
       encumbrances and noted:
            “It [an encumbrance] may include any right to, or interest in, land which may subsist in
            a third party to the diminution of the value of the estate, but consistent with the passing
            of the fee by conveyance. [Citations.] Encumbrances include not merely liens such as
            mortgages, judgment liens, [or] taxes *** but also attachments, leases, inchoate dower
            rights, water rights, easements, restrictions on use, or any right in a third party which
            diminishes the value or limits the use of the land granted.” (Internal quotation marks
            omitted.)
¶ 21        In construing the word “suffer,” we find particularly instructive a treatise addressing its
       use in a special warranty deed where unpaid property taxes are at issue:
            “ ‘Suffered’ in this context doesn’t mean ‘tolerated.’ It means ‘caused to be placed.’
            Consider the case of a property owner not paying property taxes. Eventually, the state
            will assert a lien against the property for unpaid taxes. It would be incorrect to say that
            the grantor ‘created’ the lien; the state did. But the grantor ‘suffered’ it to be created by
            failing to pay. If, however, the present owner paid the taxes but the predecessor didn’t,
            and that is why the lien arose, the owner has no implied obligation to cure it, or any other
            flaw in title the owner didn’t create.” 11 George Lefcoe, Thompson on Real Property
            § 94.07 (1994).
¶ 22        Under the plain meaning of the special warranty deed at issue, Aurora warranted that it
       did not do anything to cause the property to be encumbered. The scope of Aurora’s special

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       warranty includes only encumbrances Aurora caused and does not include any preexisting
       encumbrances which remained against the property through the time of the conveyance to
       Waterside.
¶ 23        Here, plaintiff argues that, at the time of the conveyance to Waterside, the earlier tax sale
       encumbered the property and defendant, which chose the language of the special warranty
       deed, did not except the tax sale from the special warranty. Rather, defendant only excluded
       from the special warranty “taxes due and owing” and, therefore, defendant is liable for the
       2007 tax sale encumbrance. We find this argument unpersuasive.
¶ 24        It is clear from the record that Aurora did not do anything to cause the encumbrance: the
       tax sale. The tax sale was caused because a prior owner did not pay the special assessment
       tax. Contrary to plaintiff’s assertion, the lis pendens notice is not an encumbrance: it is a
       recorded notice that there exists a proceeding that may affect good title to the property and,
       if conveyed, the grantee may be adversely affected by that proceeding. Knodle v. Jeffrey, 189
       Ill. App. 3d 877, 888 (1989). Nothing in the record suggests Aurora knew about the tax sale
       before it conveyed the property to Waterside. Even assuming Aurora knew of this tax
       delinquency and knew the non-payment would result in a tax sale, the special warranty
       limited Aurora’s exposure to only those encumbrances Aurora created or that existed because
       of something Aurora did. A tax sale occurs only because there are unpaid taxes. Thus, the
       tax lien, not the tax sale, is the encumbrance. Aurora did not permit or allow the tax sale to
       occur. Aurora did not receive title to the property until 2008. The 2007 tax sale occurred
       prior to Aurora’s ownership and, therefore, was not warranted against by Aurora in the
       special warranty deed.
¶ 25        Plaintiff argues that Aurora’s failure to redeem the tax sale after it received notice of
       Salta’s petition for a tax deed, and/or its failure to notify Waterside of the Salta’s petition
       constituted a breach of the special warranty deed. First, we note that plaintiff failed to
       provide this court with relevant legal authority to support its contention that defendant had
       a duty to either redeem the property or inform plaintiff of the petition for the tax deed as
       required by Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008). The failure to cite
       relevant authority to support a legal argument can result in its waiver. Midfirst Bank, 365 Ill.
       App. 3d at 650. Illinois Supreme Court Rule 341 is not a limitation on the court’s
       jurisdiction, however, and we may consider the issue in the interest of finding a just result.
       Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23. Acknowledging that there is a lack of
       precedent on the issue presented by plaintiff, we will address plaintiff’s argument.
¶ 26        The circuit court rejected this argument, finding: (1) defendant did not breach the special
       warranty deed because at the time the warranty was made, defendant did not receive notice
       of the tax deed petition; (2) plaintiff failed to explain why the title examination did not
       discover the tax sale when performing its due diligence; and (3) case law from other
       jurisdictions has held that the conveyance of a property through a special warranty deed “puts
       the grantee on constructive notice of certain defects that may cloud title.”
¶ 27        We affirm the circuit court’s finding that plaintiff’s allegation of breach arising from any
       action or inaction by Aurora after the conveyance is negated as a matter of law.
¶ 28        A covenant that land is free from encumbrances is a personal covenant not running with


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       the land. Firebaugh v. Wittenberg, 309 Ill. 536, 543 (1923). A covenant against
       encumbrances is breached at the moment it is made, when the deed is delivered. Id.; Inland
       Real Estate Corp. v. Oak Park Trust & Savings Bank, 127 Ill. App. 3d 535, 541 (1983).
       Therefore, any claim for breach of Aurora’s warranty under its terms, must have existed at
       the time of the delivery of the deed. Firebaugh v. Wittenberg, 309 Ill. 536, 543 (1923).
       Plaintiff’s argument for breach premised on any action or inaction after the conveyance
       cannot serve as a basis of breach of the special warranty deed. Aurora’s covenant against
       encumbrances was made when the deed was delivered and the basis of any alleged breach
       of this warranty can only be supported by events occurring when it was warranted, not later
       in time. See Firebaugh v. Wittenberg, 309 Ill. 536, 543 (1923). Therefore, plaintiff’s
       allegation that Aurora’s failure to redeem or notify, its grantee after the delivery of the deed
       cannot constitute a breach of the special warranty as a matter of law and negates plaintiff’s
       claim.
¶ 29        Furthermore, the recordation of the lis pendens by Salta served as notice to any future
       purchasers that a deed received after its recording might be affected by the tax sale. Knodle
       v. Jeffrey, 189 Ill. App. 3d 877, 888 (1989). Therefore, the recorded certificate of sale, issued
       on June 22, 2007, before Aurora purchased the property, put subsequent purchasers,
       including Waterside, on notice of Salta’s interest in the property. Id. Plaintiff has failed to
       provide us with substantive argument and citation to relevant legal authorities to support its
       contention that defendant had a duty after the conveyance to take any action regarding the
       tax sale or petition for the tax deed.
¶ 30        In addition, section 21-345 of the Illinois Property Tax Code (Tax Code) governs the
       right to redeem a property from a tax sale (In re Application of the County Treasurer & ex
       officio County Collector, 394 Ill. App. 3d 111, 119 (2009)) and provides that the right to
       redeem a property from a tax sale exists “in any owner or person interested in that property.”
       35 ILCS 200/21-345 (West 2006). A stranger to the property, with no interest in the property,
       has no right to redeem when the property is sold for delinquent taxes. In re Application of
       Du Page County Collector, 98 Ill. App. 3d 950, 952 (1981).
¶ 31        On February 23, 2010, Aurora conveyed its interest in the subject property to Waterside.
       Pursuant to section 21-345 of the Tax Code, after the February 23 conveyance only
       Waterside, and not Aurora, could redeem the property from the tax sale. Because Aurora
       could not legally redeem the property after the conveyance to Waterside, plaintiff’s claim that
       Aurora breached the special warranty deed in failing to redeem the tax sale after the
       conveyance to Waterside fails. Therefore, on this basis we find the circuit court properly
       dismissed with prejudice the complaint pursuant to section 2-619(a)(9).
¶ 32        Lastly, plaintiff argues that pursuant to the terms of the deed, defendant excepted from
       the special warranty deed, only the “taxes not yet due and payable” and, by implication, the
       unpaid taxes which resulted in the 2007 tax sale were covered by the special warranty.
       Defendant responds arguing that plaintiff failed to raise this argument in the circuit court and,
       therefore, it is waived for the purposes of appeal. Plaintiff asserts the argument was raised
       in its response to the motion to dismiss. The response in pertinent part states:
            “The [d]efendant had a duty to redeem prior to conveying title to the Waterside.


                                                 -8-
           Defendant did nothing to cause this encumbrance but if [sic] failed to remove the
           encumbrance. It warranted that there was no such encumbrance when it stated that the
           [sic] by the language in the conveyance and that it was subject only to taxes not yet due
           and payable.”
       Plaintiff in its response to the motion to dismiss did not argue that the unpaid taxes which
       caused the tax sale were within the “taxes not yet due and payable” exception. Rather,
       plaintiff’s argument below was that defendant had warranted there was no prior encumbrance
       that was excepted from the conveyance. This a different argument than presented by plaintiff
       on appeal. Therefore, plaintiff’s argument that the exception to the conveyance clause for
       taxes not yet due and payable is waived because it was not asserted in the circuit court and
       was made for the first time on appeal. Johnson Press of America, Inc. v. Northern Insurance
       Co. of New York, 339 Ill. App. 3d 864, 874 (2003). In addition, we note that plaintiff failed
       to provide us with relevant legal authority to support its argument, which is made in a
       conclusory fashion. “ ‘The appellate court is not a depository in which the appellant may
       dump the burden of argument and research.’ ” In re Marriage of Petrik, 2012 IL App (2d)
       110495, ¶ 38 (quoting Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23).
¶ 33       In any event, the argument is legally and logically untenable. First, the purpose of selling
       delinquent taxes is to obtain the tax due through the sale and distribute the sale proceeds to
       the relevant taxing bodies. When sold, the statutory tax lien shifts from the county to the tax
       purchaser. 35 ILCS 200/21-240 (West 2006). Effectively, the taxes have been paid, therefore,
       no taxes are due and owing for that tax period and an encumbrance in favor of the tax buyer
       remains until redeemed or until a tax deed issues. Second, property taxes are a prior and first
       lien against the property from January 1 in the year in which they are levied and the lien
       remains until the taxes are paid or sold. 35 ILCS 200/21-75 (West 2006). In Illinois, current
       year real estate taxes are billed and payable in the following year. By custom and practice,
       unless the parties agree otherwise, the land purchaser typically receives a credit at closing for
       unpaid prior years’ taxes and the pro-rata share of current year estimated taxes through the
       date to closing. The exception for “taxes not yet due and payable” clearly applies to taxes
       levied during 2010 but not yet payable at the time of the conveyance from defendant to
       Waterside. The special assessment taxes that were sold at the 2007 tax sale took place
       because they were previously levied, due, payable and delinquent long before defendant
       conveyed the property to Waterside on February 23, 2010, and, therefore, were not within
       the special warranty deed exception.

¶ 34                                   CONCLUSION
¶ 35      For the foregoing reasons we affirm the circuit court’s dismissal of plaintiff’s complaint
       with prejudice.

¶ 36       Affirmed.




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