In re Application of County Collector

FIRST DIVISION
March 16, 1998

No. 1-96-3452

In re APPLICATION OF THE COUNTY
COLLECTOR, for Judgment and Order of
Sale Against Lands and Lots Returned
Delinquent for Nonpayment of General
Taxes and/or Special Assessments for the
Year 1991 and Prior Years

(Midwest Real Estate Investment Company,

Petitioner-Appellee,

v.

Timothy Lee Anderson,

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

Honorable
James F. Henry,
Judge Presiding.


JUSTICE GALLAGHER delivered the opinion of the court:
In the case before us, we must determine what constitutes
strict compliance with the statutory notice requirements in
connection with a tax sale. According to the Property Tax Code,
such strict compliance is a condition precedent to the issuance
of a tax deed. 35 ILCS 200/22-40 (West 1994); In re Application
of the County Collector of Cook County for Order of Judgment and
Sale of Lands Upon Which General Taxes for Five or More Years are
Delinquent Pursuant to Section 235A of the Revenue Act of 1939,
as Amended, 173 Ill. App. 3d 814, 818, 527 N.E.2d 1038, 1041
(1988)(hereinafter Petition of B& W Investments). In essence,
then, this court must divine how the legislature would answer the
question, "How strict is strict?"
On March 24, 1993, petitioner, Midwest Real Estate
Investment Company (Midwest), purchased at a tax sale property
belonging to respondent, Timothy Lee Anderson (Anderson). The
property, located at 936 North Lawndale in Chicago, sold for
$468.50, where $214.52 represented the amount of unpaid tax while
the remainder satisfied interest and certain statutory fees. On
April 26, 1993, the county treasurer and county clerk issued a
certificate of purchase to Midwest. This certificate of purchase
listed its designation as "Certificate Number 91-0025017."
On May 5, 1995, Midwest filed its petition for tax deed with
the clerk of the circuit court, attaching a copy of the
certificate of purchase for the subject property. Midwest sent
notice to Anderson through the various methods required by
statute (35 ILCS 200/22-15 et seq. (West 1994)) advising him that
the redemption period on the property would expire on October 2,
1995.
Anderson failed to redeem the property, and on November 27,
1995, unbeknownst to Anderson, the trial court entered an order
directing issuance of a tax deed to Midwest. Three days later,
Anderson moved for leave to appear in the tax deed proceedings
and for leave to defend. After several other motions and
hearings, the trial court directed Anderson to file an amended
motion to vacate the tax deed order. Respondent Anderson did so
on March 6, 1996, arguing that the statutorily required notice
forms misstated the certificate number of the purchase
certificate; therefore, petitioner Midwest failed to meet the
"strict compliance" requirement of section 22-40 of the Property
Tax Code. 35 ILCS 200/22-40 (West 1994). This failure,
according to Anderson, ultimately nullified the tax deed. On May
22, 1996, the trial court vacated the November 27, 1995, tax deed
order, recalled the tax deed issued pursuant to that order and
set the case for an evidentiary hearing.
Following a bench trial, the trial court granted the
petition for tax deed for the property at issue. The trial court
entered judgment for Midwest in an order dated September 11,
1996. That order reinstated the November 27, 1995, tax deed
order--over Anderson's objections. Anderson next brought this
appeal, again asserting that Midwest was not entitled to the tax
deed because it failed to strictly comply with the statutory
notice requirements.[fn1] We reverse and hold that, by failing
to include the complete certificate number on the notice forms it
sent to Anderson, Midwest did not fulfill its duty to strictly
comply with the notice requirements of the Property Tax Code.
Section 22-10 of the Property Tax Code requires that parties
interested in the premises that are the subject of a tax sale
must be given notice both of the sale and of the period in which
the property may be redeemed. 35 ILCS 200/22-10 (West 1994);
Petition of B& W Investments, 173 Ill. App. 3d at 817-18, 527 N.E.2d at 1041. This provision implements the mandate, contained
in the Illinois Constitution, that such interested parties
receive "reasonable notice of the sale and the date of expiration
of the period of redemption." Ill. Const. 1970, art. IX, 8(e).
Because determination of whether the notice supplied by Midwest
satisfies section 22-10 is a question of law, we need not defer
to the findings of the trial court. In re Application of Cook
County Collector for Judgment and Sale Against Lands and Lots
Returned Delinquent for Nonpayment of General Taxes for the Year
1975, 100 Ill. App. 3d 178, 179, 426 N.E.2d 947, 949
(1981)(hereinafter Petition of Ohr).
As Anderson correctly points out, section 22-10 specifies
the precise form in which this notice shall be given to the
parties interested in the premises. That provision states as
follows:
"A purchaser or assignee shall not be entitled to
a tax deed to the property sold unless, not less than 3
months nor more than 5 months prior to the expiration
of the period of redemption, he or she gives notice of
the sale and the date of expiration of the period of
redemption to the owners, occupants and parties
interested in the property as provided below.

The Notice to be given to the parties shall be in
at least 10 point type in the following form completely
filled in:

TAX DEED NO. .......... FILED ..........

TAKE NOTICE

County of .......................................
Date Premises Sold ..............................
Certificate No. .................................
Sold for General Taxes of (year) ................
Sold for Special Assessment of (Municipality) and
special assessment number .......................
Warrant No. .......... Inst. No. ..........

THIS PROPERTY HAS BEEN SOLD
FOR DELINQUENT TAXES

Property located at .............................
Legal Description or Property Index No. .........
.................................................
.................................................

This notice is to advise you that the above
property has been sold for delinquent taxes and that
the period of redemption from the sale will expire on
.................................................

The amount to redeem is subject to increase at 6
month intervals from the date of sale and may be
further increased if the purchaser at the tax sale or
his or her assignee pays any subsequently accruing
taxes or special assessments to redeem the property
from subsequent forfeitures or tax sales. Check with
the county clerk as to the exact amount you owe before
redeeming.

This notice is also to advise you that a petition
has been filed for a tax deed which will transfer title
and the right to possession of this property if
redemption is not made on or before ..........

This matter is set for hearing in the Circuit
Court of this county in .........., Illinois on
..........

You may be present at this hearing but your right
to redeem will already have expired at that time.

YOU ARE URGED TO REDEEM IMMEDIATELY
TO PREVENT LOSS OF PROPERTY

Redemption can be made at any time on or before
.......... by applying to the County Clerk of
.........., County, Illinois at the County Court House
in .........., Illinois.

For further information contact the County Clerk
..............................
Purchaser or Assignee."
(Emphasis added.) 35 ILCS 200/22-10 (West 1994).
The form of notice mandated by section 22-10 is virtually
identical to that required by section 22-5 (35 ILCS 200/22-5
(West 1994)), which requires that notice be given to the owner or
occupant of the property within five months of the tax sale of
said property. Moreover, section 22-40 provides that "[t]he
court shall insist on strict compliance with Section 22-10
through 22-25" before a tax deed may issue. 200 ILCS 220/22-40
(West 1994). This statutory language requiring strict compliance
is in accord with earlier common law interpretations. Gage v.
Bani, 141 U.S. 344, 351, 35 L. Ed. 776, 779, 12 S. Ct. 22, 25
(1891); see also Wisner v. Chamberlin, 117 Ill. 568, 579, 7 N.E. 68, 72 (1886)("[t]he title to be made under a tax deed is one
stricti juris"). In the present case, Anderson complains that
the notice forms given to him by Midwest were fatally defective
because they misstated the "Certificate No." as "25017," when the
actual designation given to Midwest's certificate of purchase was
"Certificate Number 91-0025017."
Reading the statute very literally, Anderson argues that by
omitting the numbers "91-00" from the certificate numbers on the
statutory notice forms Midwest failed to "completely fill[] in"
the forms--as required by section 22-10. Anderson concludes that
because Midwest failed to strictly comply with section 22-10, it
necessarily violated section 22-40. In light of the foregoing,
Anderson urges this court to find that the trial court
erroneously ordered the issuance of a tax deed to Midwest, citing
Petition of Ohr, 100 Ill. App. 3d at 180, 426 N.E.2d at 949
(where notices misstated the municipality in which property was
located, notices failed to strictly comply with statute).
Midwest's response is twofold. Initially, it characterizes
the numbers "91-00" as a mere prefix to the essential certificate
number, "25017." Midwest argues that the sole purpose of
displaying the certificate number on the notice forms is to
enable the county clerk to identify a particular sale when an
interested party enters the clerk's office seeking an estimate of
the cost of redemption, and that the prefix is unnecessary for
this purpose. Midwest alternately responds that, even if
omission of the "91-00" constituted an error, it was a
typographical or scrivener's error, which does not operate to
defeat the validity of the tax deed, also citing Petition of Ohr,
100 Ill. App. 3d at 180, 426 N.E.2d at 949 (distinguishing
Garrick v. Chamberlain, 97 Ill. 620 (1880)). We address each of
Midwest's contentions in turn.
Initially, we acknowledge that the record demonstrates that
respondent Anderson was neither misled nor prejudiced by the
omission of the "91-00" prefix. Anderson visited the county
clerk's office, obtained an estimate of the cost to redeem his
property, and ultimately secured a loan in the amount necessary
to redeem. Apparently, the only reason Anderson failed to
actually redeem was the failure of his lender to process his loan
quickly enough. However, a petitioner for a tax deed must
strictly comply with the statutory notice requirements without
regard to whether any owner, occupant or other interested party
was misled by the defective notice; essentially, courts assume
prejudice to any respondent. Petition of Ohr, 100 Ill. App. 3d
at 180, 426 N.E.2d at 949.
Midwest nevertheless contends not only that its omission of
the "91-00" prefix did not mislead Anderson, but also that its
omission could not have confused or prejudiced any prospective
respondent. According to Midwest, the prefix in this case merely
indicates that the tax sale occurred as a result of nonpayment of
annual property taxes for the year 1991. Because the very next
line of the statutory notice form declared that the premises were
sold for nonpayment of 1991 taxes, Midwest argues that its
failure to include the prefix was harmless. Yet the evidence
adduced at trial shows that for different types of tax sales
certificate numbers receive different prefixes. For example, the
certificate number for property sold at a scavenger sale receives
a prefix indicating the year in which the scavenger sale was held
followed by the letter "S." Meanwhile, certificate numbers for
property sold at tax forfeiture sales are given the prefix "F."
Midwest discounts any possibility for confusion by pointing out
that scavenger and forfeiture sales occur at different times of
year from annual tax sales. Under Midwest's theory, the "Date
Premises Sold" line on the statutory notice form eliminates any
potential misunderstanding. Midwest further attempts to justify
its omission of the prefix by noting that the prefix does not
appear on any public record and, hence, may be deleted from the
notice forms at the whim of the tax purchaser.
We remain unconvinced. One reason for the strict compliance
requirement is that "'persons of limited knowledge or education
may readily overlook the payment of taxes or, in good faith, be
unable to make payment. The resulting loss of the property might
constitute a financial disaster.'" In re Application of the
County Treasurer and ex-Officio County Collector of Cook County,
Illinois, for Order of Judgment and Sale of Lands and Lots upon
Which all or Part of the General Taxes for 5 or More Years are
Delinquent Pursuant to Section 235A of the Revenue Act of 1939,
as Amended, 213 Ill. App. 3d 535, 541, 572 N.E.2d 1107, 1111
(1991)(hereinafter Petition of the City of Chicago), quoting In
re Application of Cook County Treasurer and Ex-Officio County
Collector of Cook County, Illinois For Judgment and Sale Against
Real Estate Returned Delinquent For the Non-Payment of General
Taxes For the Year 1975, 92 Ill. App. 3d 603, 607, 416 N.E.2d 25,
28 (1980)(hereinafter Petition of Mergili). In light of this
underlying purpose of the strict compliance requirement, we think
it inappropriate to allow tax purchasers the freedom to impose an
extra burden of discovery upon those parties seeking to redeem
premises sold at tax sales. We see no discernible inconvenience
to tax purchasers in requiring them to fully disclose any
certificate number prefix. Additional support for our position
may be found in the very fact that the General Assembly actually
prescribed the precise form and manner in which notice must be
given. Sections 22-10 and 22-5 of the Property Tax Code lend
credence to the idea that tax purchasers should not be allowed to
disclose only that information they deem relevant. Given the
potential for any omission to inject confusion (however slight)
into the redemption process, we reject Midwest's argument that
its omission of the "91-00" prefix was harmless. Cf. Petition of
Mergili, 92 Ill. App. 3d 603, 416 N.E.2d 25 (omission of
statutorily required information harmless where such information
did not exist).
As its secondary argument, Midwest asserts that even if its
omission of the "91-00" prefix constitutes an error, it was
merely a typographical or scrivener's error. To judge the merits
of this argument, we must consider this court's opinion in
Petition of Ohr, 100 Ill. App. 3d 178, 426 N.E.2d 947. In that
case, the court found noncompliance with the statutory notice
requirements, where the take notice misstated that the subject
property was in Hickory Hills; in actuality, the property was
located in Bridgeview. 100 Ill. App. 3d at 180, 426 N.E.2d at
949. The court went on to distinguish an early case considered
by our supreme court (Garrick v. Chamberlain, 97 Ill. at 638),
where the high court found a notice valid even though it
misdescribed the property as "lot 5, lot 23" rather than "lot 5,
in Block 23. (Emphasis omitted.)" Petition of Ohr, 100 Ill.
App. 3d at 180, 426 N.E.2d at 950. The Court in Ohr stated:
"we find that the mistake in Garrick was readily
apparent on the face of the notice. When a
typographical or a scrivener's error is readily
apparent on the face of the notice, the error does not
necessarily mean that the notice fails to comply with
the statutory notice requirements." 100 Ill. App. 3d
at 180, 426 N.E.2d at 950.

We find two flaws in Midwest's fallback argument. First,
the record indicates that the omission of the prefix to the
certificate number was not a mistake on Midwest's part. The
evidence suggests that Midwest omitted the certificate number
prefixes on notice forms by design, because Midwest believed the
prefix to be irrelevant. We have discussed our reluctance to
endorse this practice above. Second, neither Garrick nor Ohr
supports the proposition implicit in Midwest's fallback argument:
that notice forms containing scrivener's errors necessarily
comply with the statutory notice requirements. Thus, even if
Midwest's omission of the prefix were a mere typographical or
scrivener's error, Ohr leaves open the possibility that such
errors may also constitute noncompliance with the notice
requirements of the Property Tax Code. Accordingly, we reject
Midwest's second argument.
We do acknowledge that several earlier cases rejected the
notion that absolute perfection is required in tax foreclosure
proceedings. See generally In re Application of the County
Collector for Judgment and Sale Against Lands and Lots Returned
Delinquent for Nonpayment of General Taxes for the Year 1962 and
Prior Years, 121 Ill. App. 2d 129, 135, 257 N.E.2d 248, 251
(1970) (hereinafter Petition of Hoffman)("Absolute perfection is
not required and we should not permit purely technical objections
to thwart statutory provisions to ensure the collectibility of
taxes"), rev'd on other grounds sub nom. Hoffman v. Stuckslager,
48 Ill. 2d 262, 269 N.E.2d 501 (1971). However, the legislature
has since amended the Property Tax Code to specifically include
the strict compliance requirement, thus calling into question
this earlier interpretation. Petition of Ohr, 100 Ill. App. 3d
at 179-80, 426 N.E.2d at 949.
In closing, we believe that the legislature would respond to
our opening query, "Strict." We recognize that our decision
today may be looked upon as a rigid and legalistic application of
the strict compliance language from section 22-40. However, the
primary purpose of the tax sales provisions of the Property Tax
Code is to coerce tax delinquent property owners to pay their
taxes, not to assist tax petitioners in depriving the true owners
of their property. Petition of the City of Chicago, 213 Ill.
App. 3d at 542, 572 N.E.2d at 1111. Moreover, we view the
statute's strict compliance language as a bulwark. By opening
the dike to permit any omission--however minute--of statutorily
required information, we may unintentionally encourage a flood of
litigants seeking case-by-case determinations of the strict
compliance boundaries. We find that by failing to include the
complete certificate number on the notice forms it sent to
respondent Anderson, Midwest failed to comply with the notice
requirements of the Property Tax Code. Accordingly, we hold that
the trial court, despite its meticulous reexamination of the
record, erred as a matter of law when it reinstated the tax deed
originally entered on November 27, 1995. We therefore reverse
the trial court's September 11, 1996, order and reinstate the May
22, 1996, order vacating the tax deed.
Reversed.
CAMPBELL, P.J., and O'BRIEN, J., concur.
[fn1]Anderson also challenges the trial court's authority to
simply reinstate the November 27, 1995, order directing issuance
of the tax deed. In essence, Anderson argues that Midwest was
required to restart the tax deed process from the beginning.
Given our interpretation of the statute's strict compliance
requirement, we need not decide this issue.