In re Application of County Treasurer

FIRST DIVISION
October 20, 1997

No. 1-96-0817

In re APPLICATION OF THE COUNTY
TREASURER AND ex officio COUNTY
COLLECTOR OF COOK COUNTY
________________________________________
(Safeway Construction Company,

Petitioner-Appellant,

v.

Edward L. Rosewell, Cook County
Treasurer,

Respondent-Appellee).
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)Appeal from the
Circuit Court of
Cook County

No. VTS 951381

Honorable
Francis Barth,
Judge Presiding.
 JUSTICE O'BRIEN delivered the opinion of the court:
Petitioner, Safeway Construction Company, bought various real
estate parcels at a tax sale and received certificates of purchase
evidencing the sale. The three-year period for the previous owners
to redeem the parcels (see 35 ILCS 200/21-385 (West 1994)) expired
on November 1, 1994. Petitioner then had one year from the
expiration of the redemption period, until November 1, 1995, to
take out and record tax deeds on the parcels, thereby obtaining
title to the property. See 35 ILCS 200/22-85 (West 1994).
Alternatively, petitioner could file a petition to vacate the tax
sale and have the trial court declare the tax sale a "sale in
error," in which case petitioner would receive a refund of the tax
sale purchase price. See 35 ILCS 200/21-310 (West 1994). The
failure to either record the tax deeds or have the tax sale
declared a sale in error by November 1, 1995, would result in
petitioner failing to obtain title to the property or receiving a
refund.
On October 2, 1995, petitioner's attorney, Alan Meserow,
scheduled court dates of October 23, 25, and 27, 1995, for the
trial court to hear his petitions to vacate the tax sale. Meserow
secured the court dates by writing in the court's "Petition to
Vacate Tax Sale Book" (VTS book) his name, client, phone number,
and number of petitions to be heard. On October 17, 1995, the
trial court's clerk called Meserow and told him the court was
deleting his reserved dates from the VTS book because Meserow had
not written down the case numbers.
Meserow claims he then "scrambled to file the underlying
petition so that a VTS number could be secured for purposes of
reserving a court date." On October 25, 1995, Meserow filed a
petition to vacate the tax sale under case number VTS 951381 and
reserved the next available court date, November 22, 1995, to have
his petition heard. Since the November 22 court date was more than
one year beyond the redemption period, Meserow filed a motion to
toll on October 27, 1995. On November 16, 1995, Meserow filed an
amended motion to toll. On November 21, 1995, the trial court
entered an order continuing the amended motion to toll until
December 8, 1995. The November 21 order also stated that the
"parties having agreed that several other cases, where Petitioner
has filed like Amended Motions to Toll, involve the same issues and
similar facts as the present matter, the Court's ruling as to the
present matter shall apply to and govern all such other cases
involving like issues and facts."
On December 15, 1995, the trial court entered orders denying
the amended motion to toll and denying the underlying petition to
vacate the tax sale because the one-year period had lapsed. The
order stated that it applied to the following cases brought by
petitioner: VTS numbers 951340, 951341, 951471, 951472, 951473,
951475, 951374, 951375, 951376, 951377, 951378, 951379, 951380,
951381, 951382, 951383, 951384, 951385, 951386, 951387, 951388,
951392, 951393, 951394, 951395, 951396, and 951370.
On January 16, 1996, petitioner filed a motion to vacate the
December 15 order and to consolidate the above-stated VTS cases
with case 94 CoTDS 1613. On February 1, 1996, the trial court
granted the motion to consolidate and ruled that "the subject
'Petitions to Vacate Tax Sale' herein are denied, due to this
Court's [December 15] ruling denying Petitioner's 'Amended Motion
to Toll.'" Petitioner filed this timely appeal.
In VTS case numbers 951471, 951472, 951473, and 951475,
Safeway was not the petitioner. In those cases, Penny Lane, Ltd.
was the named petitioner. Penny Lane was represented by the same
attorney as Safeway, but Penny Lane is not a named appellant in
this appeal. Accordingly, VTS case numbers 951471, 951472, 951473,
and 951475 are not properly before us, and our disposition here
does not affect them.
We address the merits of petitioner's appeal. Initially, we
note each party claims that the other violated Supreme Court Rule
341 (155 Ill. 2d R. 341)) by making statements unsupported by the
record. We decline to impose any sanctions on either party, but we
have disregarded any improper information in the briefs. Our
disposition of this case is based only on information contained in
the record on appeal.
Petitioner argues that the trial court erred when it denied
the petitions to vacate the tax sale as sales in error because the
petitions were not brought and ruled upon within one year of the
expiration of the redemption period. Petitioner claims that
section 13-205 of the Illinois Code of Civil Procedure (735 ILCS
5/13-205 (West 1994)) gives it five years from the expiration of
the redemption period to have the tax sales declared sales in
error.
We previously considered this same argument in In re Petition
for Declaration of Sale in Error, 256 Ill. App. 3d 159 (1994)
(hereafter Petition of Dean L. Johnson), and In re Application of
the County Treasurer and ex officio Collector of Cook County, 264
Ill. App. 3d 476 (1994). In those cases, we recognized that under
section 13-205, a holder of a real estate certificate purchased at
a tax sale has five years to file petitions for sales in error.
Petition for Dean L. Johnson, 256 Ill. App. 3d at 161; In re
Application of County Treasurer, 264 Ill. App. 3d at 479. However,
we held that in addition to section 13-205, the certificate holder
also must comply with section 271 of the Revenue Act (35 ILCS
205/271 (West 1992)) then in effect (now section 22-85 of the
Property Tax Code (35 ILCS 200/22-85 (West 1994))). Petition for
Dean L. Johnson, 256 Ill. App. 3d at 160-66; In re Application of
County Treasurer, 264 Ill. App. 3d at 479. Section 22-85
explicitly states that a certificate holder must record the deed
within one year from the expiration of the redemption period,
otherwise the certificate of purchase is void with no right to
reimbursement. 35 ILCS 200/22-85 (West 1994). We concluded that
certificate holders cannot redeem their certificates by a sale in
error if those certificates have already become void by the
certificate holder's failure to record the deed within one year
after the redemption period. Petition for Dean L. Johnson, 256
Ill. App. 3d at 163; In re Application of County Treasurer, 264
Ill. App. 3d at 479.
In other words, section 13-205's five-year statute of
limitations for filing a petition for a sale in error applies only
if the certificate holder records his deed within one year after
the redemption period. If the certificate holder fails to so file
his deed, he has only the one year after the redemption period to
bring his petition and have the sale vacated as a sale in error.
In the present case, petitioner did not record its deeds to
the property within one year after the redemption period expired on
November 1, 1994. Thus, petitioner had only the one-year period
until November 1, 1995, to have the tax sale vacated as a sale in
error. Petitioner did not obtain a hearing on its motion to vacate
the tax sale until after November 1, 1995. Accordingly, the trial
court properly denied the motion.
Petitioner next argues that the trial court erred by denying
its motion to toll the one-year period. Petitioner points to
section 22-85 of the Property Tax Code: "If the holder of the
certificate is prevented from obtaining a deed by injunction or
order of any court, or by the refusal or inability of any court to
act upon the application for a tax deed, or by the refusal of the
clerk to execute the same deed, the time he or she is so prevented
shall be excluded from computation of the one year period."
(Emphasis added.) 35 ILCS 200/22-85 (West 1994).
Petitioner argues that its attorney, Meserow, reserved October
23, 25, and 27, 1995, as hearing dates for the motion to vacate the
tax sale. Those dates were within the one-year period after the
expiration of the redemption period. Petitioner contends the trial
court "refused to act" on Meserow's motion to vacate the tax sale
when it deleted his reserved dates from the VTS book on October 17,
1995, because he had failed to list the case numbers. Petitioner
further argues that the trial court was "unable to act" on
Meserow's motion until November 22, 1995, the next available
hearing date, which was outside the one-year deadline. Therefore,
petitioner contends that section 22-85 required the trial court to
toll the one-year period.
We disagree. First, we note that the tolling provision of
section 22-85 applies when the court refuses or is otherwise unable
to act upon the application for a tax deed. In the present case,
though, petitioner did not file a tax deed; he filed a motion to
vacate the tax sale. Thus, section 22-85 is not applicable here.
Even if section 22-85 did apply here, we would not find that
the trial court refused or was unable to act on petitioner's motion
to vacate the tax sales such that the one-year period should be
tolled. In re Application of Rosewell, 209 Ill. App. 3d 187
(1991), is instructive. In Rosewell, Rachel Wolf's assignor
purchased real property at a tax sale on September 15, 1980.
Rosewell, 209 Ill. App. 3d at 188. The redemption period expired
on September 14, 1983, and Wolf had until September 14, 1984, to
record her tax deed on the property. Wolf waited until August 15,
1984, before attempting to obtain a court order for the issuance of
the tax deed. Rosewell, 209 Ill. App. 3d at 190. The trial judge
was not sitting from August 20 through September 4, a period of 15
days. Rosewell, 209 Ill. App. 3d at 190. Although a hearing was
held on September 10 and Wolf provided the trial court with the
necessary documentation by September 11, the trial court did not
order the clerk to issue a tax deed until September 14, three days
later. Rosewell, 209 Ill. App. 3d at 190. The clerk issued the
tax deed on September 21, seven days after the one-year deadline.
Rosewell, 209 Ill. App. 3d at 190. The trial court later
determined that the tax deed was invalid because it was not filed
and recorded within one year of the expiration of the statutory
redemption period.
On appeal, Wolf argued that the one-year deadline should be
tolled by 25 days, because she was prevented from receiving a tax
deed for such a period of time by the court's refusal or inability
to act on her application. Rosewell, 209 Ill. App. 3d at 190. The
appellate court disagreed:
"[A]lthough [section 22-85] speaks of the refusal
or inability of the court to act on an application
for a tax deed, and the refusal of the clerk to act
on the court's order to issue a deed, it does not
appear that [Wolf] has encountered such difficulty
here, but was merely faced with the ordinary delays
incident to the processing of cases in the circuit
court. Moreover, [Wolf] fails to address why she
did not even attempt to obtain a court order until
the middle of August 1984, 11 months after the
expiration of the statutory redemption period.
Accordingly, we affirm the trial court's holding
that [Wolf's] tax deed was invalid for failure to
comply with the pertinent statutory requirements."
Rosewell, 209 Ill. App. 3d at 190-91.
Similarly, in the present case, petitioner waited until
October 2, 1995, which was 11 months after the redemption period,
before attempting to secure a court date to hear its motion to
vacate the tax sale. On October 17, 1995, the trial court deleted
petitioner's court dates for failing to list the case numbers in
the VTS book. The trial court's action amounted to an ordinary
delay of the processing of petitioner's cases. However, because
petitioner waited so long before obtaining a court date and filing
the motion to vacate the tax sale, petitioner was unable to secure
another court date within the one-year period. Thus, it was
petitioner's actions, not the trial court's, which resulted in its
failure to have the tax sale declared a sale in error within one
year of the expiration of the redemption period. Accordingly, we
affirm the trial court's order denying petitioner's motion to toll.
Affirmed.
CAMPBELL, P.J., and BUCKLEY, J., concur.