                                                                        SECOND DIVISION
                                                                        NOVEMBER 25, 2008



1-07-1977

In re APPLICATION OF THE COUNTY TREASURER                       )       Appeal from the
AND EX-OFFICIO COUNTY COLLECTOR OF COOK                         )       Circuit Court of
COUNTY, ILLINOIS FOR ORDER OF JUDGMENT                          )       Cook County.
AND SALE OF LANDS AND LOTS RETURNED                             )
DELINQUENT FOR NON-PAYMENT OF ALL OR                            )
PART OF GENERAL TAXES AND/OR SPECIAL                            )
ASSESSMENTS FOR TAX YEAR 1997 AND                               )
PRIOR YEARS                                                     )
                                                                )
(Danny Hammond,                                                 )       No. 01 CD 4489
                                                                )
                Petitioner-Appellant,                           )
                                                                )
        v.                                                      )
                                                                )
S. I. BOO, L.L.C., and KYONNI OLAWUMI,                          )       Honorable
                                                                )       Nathaniel Howse, Jr.,
                Respondents-Appellees).                         )       Judge Presiding.


        JUSTICE CUNNINGHAM delivered the opinion of the court:

        Following the sale of petitioner Danny Hammond’s real property due to delinquent unpaid

taxes, the circuit court entered judgment for tax deed in favor of respondent S. I. Boo, L.L.C. (S.

I. Boo). The petitioner then filed a petition to vacate the judgment for tax deed, which the circuit

court dismissed. On appeal from the circuit court’s April 26, 2007 dismissal of his petition under

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West Supp. 2007)) to vacate

judgment for tax deed, the petitioner contends that: (1) the tax deed is void; and (2) the circuit court

exceeded its authority and lacked the power to enter the tax deed order. For the following reasons,

we affirm.
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                                          BACKGROUND

        Beginning in 1997, the petitioner owned a home in Chicago Heights.1 The failure to pay

county taxes in 1997 resulted in the lot being sold to S. I. Securities on March 16, 1999. A “Take

Notice” (notice) was then personally served on the petitioner on November 2, 2001, which stated that

the petitioner could redeem the property before February 27, 2002, and described the process for

doing so. The notice also gave information about a hearing to be held at the “Richard J. Daley

Center, Chicago, Illinois” on March 13, 2002, but did not provide the address of the Richard J. Daley

Center. The petitioner subsequently failed to redeem the property within the time allowed as outlined

in the notice.

        As a result, the circuit court entered judgment for tax deed in favor of respondent S. I. Boo,

L.L.C. (S. I. Boo) on May 10, 2002, and the tax deed for the property was recorded. The property

was later sold to respondent Kyonni Olawumi, who obtained a 30-year mortgage for the purchase

of the property and recorded the warranty deed in Cook County. At the time of the petitioner’s

appeal, Olawumi owed approximately $111,000 on the mortgage.

        On January 5, 2007, almost five years after the court’s judgment for S. I. Boo, the petitioner

filed a petition, under section 2-1401 of the Illinois Code of Civil Procedure, to vacate the judgment

for the tax deed granted to S. I. Boo, arguing that the failure of the notice served on him on

November 2, 2001, to include an address for the Richard J. Daley Center rendered the judgment order



        1
         The lot was legally described as “Lot 8 in block 150 in Chicago Heights, a Subdivision of
parts of Sections 28 and 29, Township 35 North, Range14, East of the Third Principal Meridian,
in Cook County, Illinois.”

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granting a tax deed to S. I. Boo, void. 735 ILCS 5/2-1401 (West Supp. 2007). Each respondent

filed a motion to dismiss, which the circuit court granted on April 26, 2007. On June 22, 2007, the

court denied the petitioner’s motion to reconsider its ruling. A notice of appeal to this court was

filed by the petitioner on July 19, 2007.

                                             ANALYSIS

       Jurisdiction is properly before this court. We review de novo, the circuit court’s dismissal of

the section 2-1401 petition. Stahelin v. Forest Preserve District of Du Page County, 376 Ill. App.

3d 765, 771, 877 N.E.2d 1121, 1128 (2007). All well-pleaded facts must be taken as true and any

inferences drawn should be drawn in favor of the nonmovant, regardless of whether the motion to

dismiss was brought under section 2-615 or 2-619 of the Code of Civil Procedure (735 ILCS 5/2-

615, 2-619 (West 2006)). Stahelin, 376 Ill. App. 3d at 771, 877 N.E.2d at 1128; Geick v. Kay, 236

Ill. App. 3d 868, 873-74, 603 N.E.2d 121, 125 (1992).

       We first address the issue of whether the circuit court had jurisdiction to render judgment for

a tax deed in favor of S. I. Boo on March 10, 2002. The petitioner argues that the circuit court

exceeded its authority and lacked the power to enter the tax deed order because the November 2001

notice was defective. Specifically, he argues that the notice failed to strictly comply with the notice

requirements of section 22-10 of the Property Tax Code (35 ILCS 200/22-10 (West Supp. 2007))

because it did not specify the exact address for the place of the hearing, thus rendering the tax deed

void. Void judgments, he argues, may be attacked at any time. 735 ILCS 5/2-1401(f) (West Supp.

2007); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104, 776 N.E.2d 195, 201-22

(2002). We disagree with the petitioner’s contention.

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        Under section 22-10 (notice provision), notice of the sale and the expiration date of the

redemption period are required to be given to the owners, occupants or other interested parties before

a tax deed may be issued. The notice must include information such as the period of redemption,

legal description of the property at issue, and the address at which the hearing is to be held. 35 ILCS

200/22-10 (West Supp. 2007). The statute mandates that the court shall insist on strict compliance

with the notice provision. 35 ILCS 200/22-40 (West Supp. 2007). However, no authority exists to

deprive the circuit court of jurisdiction simply because the notice was defective.

        Tax deed proceedings are in rem in nature, rather than in personam, and a court acquires

jurisdiction after the county collector makes his application for judgment and order of sale. In re

Application of County Treasurer, 194 Ill. App. 3d 721, 724, 551 N.E.2d 343, 346 (1990); Wilder v.

Finnegan, 267 Ill. App. 3d 422, 425, 642 N.E.2d 496, 499 (1994). The jurisdiction over the land

itself grants power to the court to act, and thus, any doubt about the fulfillment of the notice

requirements goes to whether the court should order the tax deed issued, not whether the court has

jurisdiction in the matter. Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499. Failure to satisfy the

criteria of the notice provision will neither divest the court of jurisdiction nor prevent the court from

otherwise ruling in issuing an order for tax deed. Wilder, 267 Ill. App. 3d at 425, 642 N.E.2d at 499.

The court, however, lacks jurisdiction over a property if the taxes had been paid or the property is

tax exempt. In re Application of Cook County Collector, 228 Ill. App. 3d 719, 731, 593 N.E.2d 538,

547 (1991).

        Here, the circuit court acquired jurisdiction over the property at issue when the Cook County

treasurer made an application for judgment and order of sale. Once the circuit court had jurisdiction,

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1-07-1977


it retained that jurisdiction regardless of whether the notice may have been defective for failing to

include the specific street address. There is nothing in the record that shows that the delinquent taxes

had been paid to the county or that the property was tax exempt so as to deprive the lower court of

its jurisdiction. Thus, once the circuit court acquired jurisdiction over the in rem proceeding, it had

the power to decide whether to issue the tax deed, and any defects in the notice did not render it void

but, at most, voidable. Elliott v. Johnson, 156 Ill. App. 3d 70, 74, 508 N.E.2d 1229, 1232 (1987).

       We next determine whether the circuit court erred in ordering a judgment for tax deed in favor

of S. I. Boo. The circuit court granted the respondents’ motions to dismiss and held:

                       “(a) The failure to include the street address in the Take

               Notice does not render the judgment void.

                       (b) The failure to include the street address on the Take Notice

               is not a jurisdictional question.

                       (c) No due process rights of Hammond were violated.

                       (d) One can only attack the strict compliance of the notice

               provision of the Property Tax Code within 30 days of entry of the

               order for tax deed.

                       (e) Failure to strictly comply with the Take Notice provisions

               of the Property Tax Code cannot be attacked in a §2-1401 petition.”

       We may affirm the circuit court’s decision on any basis in the record. IMC Global v.

Continental Insurance Co., 378 Ill. App. 3d 797, 805, 883 N.E.2d 68, 76-77 (2007). Because the

notice was not void, the petitioner’s only recourse under section 2-1401 was to bring a direct attack

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1-07-1977


within 30 days of the circuit court’s final order, petition for relief within 2 years of the entry of the

judgment, or plead fraud. 735 ILCS 5/2-1401(a), (c) (West Supp. 2007); see also 35 ILCS 200/22-

45 (3) (West Supp. 2007).

        One can only attack the strict compliance of the notice provision within 30 days of entry of

the order for tax deed. Smith v. D.R.G., Inc., 63 Ill. 2d 31, 36, 344 N.E.2d 468, 470 (1976) (holding

that once a court finds that the required notices have been given, the tax deed order may only be

challenged by direct appeal or by a showing of fraud). Here, the petitioner forfeited his right to a

direct appeal by not acting within 30 days of the circuit court’s judgment and cannot now challenge

the deficiencies of the notice almost five years after the entry of the judgment order. We note that

the petition also does not seek relief on the grounds of fraud, which tolls the filing period under

section 2-1401.

        If direct attack on a final judgment or order is not made within 30 days of its entry by the

court, the party desiring to challenge the judgment must file a petition to do so no later than 2 years

after the entry of the order or judgment.        735 ILCS 5/2-1401(c) (West Supp. 2007). The

computation of this two-year period excludes any time that the person seeking relief suffered from

a legal disability or duress. Here, the petition was filed almost five years after the entry of judgment

for a tax deed in the circuit court. The petitioner does not claim any legal disability or duress that

tolled the two-year period so as to make his petition timely.

        Due diligence must also be shown in filing a section 2-1401 petition for relief. Due diligence

is shown when the “petitioner show[s] that his/her inaction was the result of an excusable mistake and

that petitioner acted reasonabl[y], not negligently, [in failing] to pursue the cause of action.” Salazar

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1-07-1977


v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863, 871, 576 N.E.2d 552, 557-58 (1991). Here,

the petitioner failed to demonstrate due diligence in filing the section 2-1401 petition. He waited

almost five years before objecting to the judgment for tax deed. Nothing in the record explains why

the petitioner waited so long before seeking relief under section 2-1401. It is unclear from the record

when the petitioner first became aware or should have become aware of the defective notice of which

he now complains. He has not included any affidavits showing that his inaction was the result of an

excusable mistake or that he acted reasonably in waiting almost five years to file this petition. Absent

such information in the record, we cannot assume that the petitioner’s inaction was excusable.

Therefore, the petitioner has failed to show due diligence in filing his petition as required by section

2-1401. Accordingly, we agree with the respondents that the petitioner’s petition to vacate judgment

was untimely and thus, properly dismissed.

        We also note that section 22-45 of the Property Tax Code must be read in conjunction with

section 2-1401 in governing the petition process for a tax deed. 35 ILCS 200/22-45 (West Supp.

2007). Section 22-45 states that tax deeds are appealable under section 2-1401 “in the same manner

and to the same extent as may be had under those Sections with respect to final orders and judgments

in other proceedings.” 35 ILCS 200/22-45 (West Supp. 2007). The grounds for relief under Section

2-1401 shall be limited to:

                        “(1) proof that the taxes were paid prior to sale;

                        (2) proof that the property was exempt from taxation;

                        (3) proof by clear and convincing evidence that the tax deed

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1-07-1977


                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 Supp. 2007).

        The petitioner argues that the circuit court failed to follow the specific language of section

22-45 because nothing in this section limits the applicability of section 2-1401(f) regarding relief from

void judgments. Because we have decided that the judgment was not void, we need not address this

point any further. We do note, however, that the petitioner failed to identify which of the four

grounds of section 2-1401 supports his argument. Therefore, his petition, on its face, was insufficient

as a matter of law. Thus, the circuit court properly dismissed it.

        We hold that the circuit court did not err in granting the respondents’ motions to dismiss the

petition to vacate judgment for tax deed entered in 2002 and the judgment was not void.

        Affirmed.

        KARNEZIS, P.J., and SOUTH, J., concur.



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