DG Enterprises v. Cornelius , 2015 IL 118975 ( 2015 )

2015 IL 118975
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118975)
DG ENTERPRISES, LLC-WILL TAX, LLC, Appellant, v. VINCENT F.
CORNELIUS, as Independent Administrator of the Estate of Lorrayne
M. Cornelius, Deceased, Appellee.
Opinion filed December 3, 2015.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 The principal issues presented in this case are (1) whether an order issuing a tax
deed is void and subject to collateral attack because of the failure to include the
address and phone number of the county clerk in the publication and certified mail
take notices that were required to be sent to the delinquent owner prior to the
issuance of the tax deed, and (2) whether due process standards were violated
where certified mail notices to the owner were return unclaimed. We answer both
questions in the negative.
¶2 BACKGROUND
¶3 The petitioner, DG Enterprises, LLC-Will Tax, LLC, purchased the 2007
delinquent real estate taxes for the property commonly known as 716 Henderson
Avenue, Joliet, Illinois, from the Will County collector at a public auction on
November 6, 2008.
¶4 Section 22-5 of the Property Tax Code (Tax Code) provides that in order to
seek a tax deed after the tax sale, the tax purchaser must deliver a “Notice of sale
and redemption rights” (Take Notice I) to the county clerk to be given to the party
in whose name the taxes were last assessed. 35 ILCS 200/22-5 (West 2008). This
notice must be delivered to the county clerk within 4 months and 15 days after the
tax sale, and the county clerk must mail the notice within 10 days of receipt by
registered or certified mail. Id.
¶5 On February 4, 2009, in accord with requirements of section 22-5 of the Tax
Code, the petitioner drafted and then requested that the Will County clerk send by
certified mail the completed Take Notice I form to the respondent, Lorrayne M.
Cornelius, 1 the owner of record and the party in whose name taxes were last
assessed. The Take Notice I advises the party that his or her property has been sold
for delinquent taxes, that redemption can be made until the specified date, and that
a petition for tax deed will be filed by the tax purchaser if redemption is not made.
Id.; In re Application of the County Collector, 225 Ill. 2d 208, 212 (2007). Section
22-5 requires that the Take Notice I form be in at least 10 point type in the form set
forth in the statute “completely filled in.” 35 ILCS 200/22-5 (West 2008). The
petitioner filled in all of the required information for the Take Notice I except the
address and phone number for the Will County clerk. The certified mail notice was
returned by the post office unclaimed.
¶6 The redemption period before the tax sale was eventually extended to
November 4, 2011. The petitioner ordered a title examination and a commitment
for title insurance showing the necessary parties for tax deed. The examination and
commitment for title insurance showed that title to the property in question was
vested in Lorrayne M. Cornelius and also revealed the names of other persons
interested in the property.
1
Lorrayne M. Cornelius is now deceased, and Vincent F. Cornelius, as independent
administrator of her estate, has been substituted as party respondent.
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¶7 The Tax Code provides that “within 6 months but not less than 3 months prior
to the expiration of the redemption period,” the tax purchaser may file a petition in
the circuit court seeking an order directing the county clerk to issue a tax deed to the
property if it is not redeemed from the sale. 35 ILCS 200/22-30 (West 2010). On
July 6, 2011, within the applicable statutory time frame, the petitioner filed a
petition for tax deed.
¶8 In order to receive an order issuing a tax deed, the redemption period must
expire without any redemption taking place, and the tax purchaser must prove to
the circuit court that it has strictly complied with the statutory notice provisions set
forth in sections 22-10 through 22-25 of the Tax Code (35 ILCS 200/22-10 through
22-25 (West 2010)). 35 ILCS 200/22-30 (West 2010); In re Application of the
County Collector, 225 Ill. 2d at 213. Section 22-10 of the Tax Code provides for a
second notice (Take Notice II) to be sent to the owners, occupants or parties
interested in the delinquent property not less than three months or more than six
months prior to the expiration of the period of redemption. 35 ILCS 200/22-10
(West 2010). The required format of the Take Notice II in section 22-10 is nearly
identical to the Take Notice I in section 22-5 and both require the address and
phone number of the county clerk to be filled in.
¶9 In addition to the Take Notice II in section 22-10, the Tax Code also requires in
section 22-25 that the clerk of the circuit court of the county in which the property
is located send a take notice by certified mail. 35 ILCS 200/22-25 (West 2010).
Section 22-25 provides that the petitioner is to prepare and deliver to the clerk of
the court the take notice under this section, which is to “be identical in form to that
provided by Section 22-10.” Id.
¶ 10 Finally, the Tax Code provides that the petitioner is to “give the notice required
by Section 22-10 by causing it to be published in a newspaper as set forth in Section
22-20.” (Emphasis added.) 35 ILCS 200/22-15 (West 2010). Unlike section 22-25,
which provides that the certified mail notice sent by the clerk of the court be
“identical in form” to the section 22-10 Take Notice II, section 22-20 does not
provide that the publication notice be in identical form to the section 22-10 Take
Notice II. 35 ILCS 200/22-25, 22-20 (West 2010). Instead section 22-20
specifically lists the information the publication notice must contain and, among
the criteria, the address and phone number of the county clerk is not listed.
Specifically, section 22-20 provides that “[t]he publication shall contain (a) notice
of the filing of the petition for tax deed, (b) the date on which the petitioner intends
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to make application for an order on the petition that a tax deed issue, (c) a
description of the property, (d) the date upon which the property was sold, (e) the
taxes or special assessments for which it was sold and (f) the date on which the
period of redemption will expire.” 35 ILCS 200/22-20 (West 2010).
¶ 11 On July 6, 2011, the same day it filed its petition for tax deed, the petitioner
placed the take notices required by section 22-25 for mailing with the clerk of the
circuit court of Will County. The notice was sent by the clerk of the court by
certified mail, and was mailed to “Lorrayne M. Cornelius, Melvin R. Cornelius and
Occupants,” at the 716 Henderson Avenue address. Three attempted certified
mailings were later returned unclaimed to the clerk by the postal service.
¶ 12 The petitioner also took additional steps to complete personal service on the
respondent and all other interested parties. See 35 ILCS 200/22-15 (West 2010).
The petitioner employed the services of a licensed process server who attempted 11
times to personally serve the respondent and all other interested parties on 9
different dates at different times of the day over a two and a half week period from
July 19, 2011, through August 5, 2011. The process server’s return states, “no
contact *** 11 attempts. Vehicle in driveway *** outside storm doors locked ***
no one answers our inquiries at the door.” Further, the take notices required by
section 22-10 were delivered to the county sheriff for mailing. The post office
showed three different attempts of the certified mail notice on July 15, July 20 and
July 30, 2011. All the certified mailings went unclaimed.
¶ 13 Newspaper publication of the notice for application of an order for tax deed was
timely published in accordance with the requirements of section 22-20 of the Tax
Code. The publication occurred in the Joliet Times Weekly, a newspaper of general
circulation published in Joliet, Illinois. The publication occurred three times after
the petition for tax deed was filed: July 14, July 21 and July 28, 2011.
¶ 14 No redemption was made on or before the expiration date of November 4, 2011.
¶ 15 On November 17, 2011, a hearing was held on petitioner’s application. Neither
the respondent nor any other interested person appeared at the hearing. The
petitioner presented testimony and an affidavit in support of its application for an
order directing a tax deed to issue. The circuit court of Will County ordered
issuance of a tax deed to petitioner, finding, among other things, the following:
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“The person in whose name the real estate was last assessed for general
taxes and the owners of and all other persons interested in that real estate are
respondents to the Petition [of petitioner DG Enterprises] and have been duly
and regularly notified of the pendency of the hearing on that Petition by service
of notice hereof, all less than six months and more than three months prior to
the expiration of the period of redemption, as extended, from that sale and all as
provided by Sections 200/22-10, 22-15, 22-20, 22-25, and 200/22-30 of the
Property Tax Code, as amended. Petitioner has given, or caused to be given, all
notices required by law and by Sections 200/22-10, 22-15, 22-20, 22-25 and
200/22-30 of the Property Tax Code, as amended. Petitioner has given the
notice required by Section 200/22-5 of the Property Tax Code, as amended.
*** Petitioner has complied with all provisions of the law and of the statutes
in such case made and provided and is entitled to receive a tax deed to that real
estate.”
¶ 16 On March 14, 2012, the respondent filed an appearance through counsel and a
combined motion to dismiss pursuant to sections 2-301 and 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-301, 2-1401 (West 2010)) and section 22-45(3), (4)
of the Tax Code (35 ILCS 200/22-45(3), (4) (West 2010)). Respondent argued that
petitioner’s take notices and publication notices were fatally defective under the
statute and failed to comply with due process, depriving the court of jurisdiction
and rendering the order for the tax deed void so that it could be attacked at any time.
¶ 17 Following a nonevidentiary hearing, the circuit court granted respondent’s
combined motion on the pleadings alone and vacated its previous order issuing the
tax deed to petitioner. Petitioner’s motion to reconsider was denied.
¶ 18 Petitioner appealed, and a divided appellate court affirmed the vacating of the
tax deed order. 2014 IL App (3d) 130288. In so doing, the majority first found that
the circuit court erred in finding that the tax deed order was void for lack of
in personam jurisdiction. The majority then concluded that the tax deed order was
nonetheless void for failure to give proper statutory notice. In the majority’s view,
the failure to completely fill in the information on the Take Notices I and II with the
address and phone of the county clerk meant that “the petitioner did not, therefore,
‘serve [the respondent] with the notices required by section 22-10 through 22-30.’ ”
Id. ¶ 33.
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¶ 19 The appellate court dissent disagreed with the majority’s conclusion that a
technical defect in the Take Notices I and II could render the tax deed void.
According to the dissent, once the trial court acquires jurisdiction over the land, any
subsequent challenge to the issuance of the tax deed renders its order voidable, not
void. Id. ¶ 42 (Schmidt, J., dissenting). Moreover, the grounds for collaterally
challenging the issuance of a tax deed are specifically limited by the legislature to
the grounds listed in section 22-45 of the Tax Code (35 ILCS 200/22-45 (West
2010)). 2014 IL App (3d) 130288, ¶ 47 (Schmidt, J., dissenting). The dissent noted
that respondent had requested that the court grant relief under section 22-45(4), 2
but respondent’s failure to allege that petitioner did not name her in the notice
prevented respondent from establishing grounds for relief under that subsection.
Finally, the dissent noted that “[c]onspicuously absent from section 22-45 is the
basis relied upon by the majority: a failure to provide the name and phone number
of the county clerk in the take notice.” Id. ¶ 48.
¶ 20 Petitioner filed a petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1,
2013)), which we granted. For the reasons that follow, we reverse the judgments of
the circuit and appellate courts.
¶ 21 ANALYSIS
¶ 22 I. Statutory Relief
¶ 23 The case before us is based on respondent’s collateral attack of the tax deed
under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2010)). The review of an order granting a section 2-1401 petition on the pleadings
alone is de novo. People v. Vincent, 226 Ill. 2d 1, 18 (2007).
¶ 24 This court has observed that two competing policy concerns are implicated by
collateral attacks on tax deed orders:
“On the one hand, ‘[t]he forced sale of a home is a grave and melancholy event’
[citation] that can have severe consequences for the delinquent taxpayer.
Allowing a collateral attack upon the tax deed order provides the delinquent
2
The dissent also noted that respondent had requested relief under subsection 22-45(3), which
allows collateral attack where there is proof that the tax purchaser procured the deed by fraud or
deception. 35 ILCS 200/22-45(3) (West 2010). Respondent seems, however, to have abandoned
section 22-45(3) as grounds for relief in the appeal before this court.
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taxpayer with an opportunity, in addition to the direct appeal, to ensure that the
order was properly obtained. On the other hand, the availability of a collateral
challenge to the tax deed order tends to undermine the finality and, hence, the
marketability of the tax deed. This point is significant because tax purchasers
participate in the tax sale system in order to obtain marketable titles. [Citation.]
If tax purchasers do not participate in tax sales, then delinquent taxpayers lose
the incentive to pay their real estate taxes and tax revenues fall.” In re
Application of the County Collector, 217 Ill. 2d 1, 17-18 (2005) (Lowe I).
¶ 25 In section 22-45 of the Tax Code, the legislature has expressed the balance it
has struck between these competing public policies. Id. at 21-22. Section 22-45
provides in relevant part as follows:
“§ 22–45. Tax deed incontestable unless order appealed or relief petitioned.
Tax deeds issued under Section 22–40 are incontestable except by appeal from
the order of the court directing the county clerk to issue the tax deed. However,
relief from such order may be had under Sections 2–1203 or 2–1401 of the
Code of Civil Procedure 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. 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 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 22–20
through 22–30.” 35 ILCS 200/22-45 (West 2010).
¶ 26 Specifically, respondent relied upon subsection 22-45(4), but this ground is
invoked by a person or party with a recorded interest in the tax deed property who
was not served notice in any manner whatsoever. Lowe I, 217 Ill. 2d at 21; In re
Application of the County Collector, 397 Ill. App. 3d 535, 544 (2009) (“section
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22-45(4) allows relief from a tax deed where the petitioner provides proof that he
held a recorded interest in the property, that he 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 him with the notices
required”). Here, there is no dispute that respondent was named in the publication
and take notices. As noted above, section 22-45(4) specifically provides that this
ground for collateral attack is limited to situations where there is proof by one
holding a 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.” 35 ILCS 200/22-45(4)
(West 2010). Again, there was no proof in this case that anyone who held an
interest in the property was not named in the publication notice.
¶ 27 Respondent and the appellate court essentially believe that the failure to include
the address and phone number of the county clerk was tantamount to respondent
not being named in the notice at all, or in the alternative, that the failure to include
the information about the clerk was enough of a reason to declare the tax deed void
or voidable in a collateral attack based on a violation of section 22-45(4). But this
argument is without merit.
¶ 28 If the legislature believed that it was essential to include the address and phone
number of the county clerk in the publication notice, it would have said so plainly,
or at the very least would have provided that the publication notice be “identical in
form” to the section 22-10 notice as it did in the case of the section 22-25 notice.
But unlike section 22-25, which provides that the certified mail notice sent by the
circuit court clerk be identical in form to the section 22-10 notice, section 22-20
does not provide that the publication notice be in identical form. Instead, the
statutory scheme provides that the publication notice be “published in a newspaper
as set forth in Section 22-20.” (Emphasis added.) 35 ILCS 200/22-15 (West 2010).
Section 22-20 in turn specifically lists the information the publication notice must
contain, and the address and phone number of the county clerk are not listed among
the criteria required. See 35 ILCS 200/22-20 (West 2010).
¶ 29 We therefore conclude, as the appellate court dissent did, that respondent’s
failure to prove or even allege that petitioner did not name respondent in the notices
prevented respondent from establishing grounds for relief under section 22-45(4).
Section 22-45 simply does not include the technical defect of failing to provide the
name and phone number of the county clerk in the take notices as a ground for
collateral relief, and the appellate court erred in relying upon that ground. Section
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22-45 evinces an intent on the part of the General Assembly “to protect tax deed
orders from collateral attack ‘on questions relating to notice,’ ” unless the challenge
squarely fits within the language of section 22-45. In re Application of the County
Treasurer, 217 Ill. 2d at 20-21 (quoting In re Application of the County Treasurer,
92 Ill. 2d 400, 408 (1982)).
¶ 30 Perhaps realizing respondent cannot satisfy the requirement in section 22-45(4)
of proof that petitioner did not name respondent in the publication notice,
respondent argues for a novel interpretation of the statute. Respondent argues that
despite the legislature’s conjunctive use of the word “and” in section 22-45(4), the
word “and” should instead be read in the disjunctive to effectively create an
independent ground for collaterally attacking the tax deed if the interested party can
simply prove that the tax purchaser did not make a diligent inquiry and effort to
serve that party with the notices required by sections 22-10 through 22-30.
¶ 31 Defendant’s argument raises an issue of statutory construction, which we
review de novo. People v. A Parcel of Property Commonly Known as 1945 North
31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 500 (2005). It is well
settled that generally the use of a conjunctive such as “and” indicates that the
legislature intended that all of the listed requirements be met. Id. at 501. In Parcel,
this court rejected an argument urging the disjunctive reading of the word “and” by
stating the following:
“This contention lacks merit. The pertinent conditions *** are plainly
joined with the term ‘and.’ This court long ago observed the obvious: ‘The
conjunction “and” *** signifies and expresses the relation of addition.’
[Citation.] Of course, the word ‘and’ is sometimes considered to mean ‘or,’ and
vice versa, in the interpretation of statutes. However, ‘[t]his is not done except
in cases where there is an apparent repugnance or inconsistency in a statute that
would defeat its main intent and purpose. When these words are found in a
statute and their accurate reading does not render the sense dubious they should
be read and interpreted as written in the statute.’ Voight v. Industrial Comm’n,
297 Ill. 109, 114 (1921).” Id. at 500-01.
¶ 32 Here, there is nothing to suggest that an accurate reading of “and” in section
22-45(4) would defeat the main intent and purpose of the statute. Nor is there
anything “dubious” about reading “and” conjunctively. Instead, we find that to
adopt the respondent’s interpretation would mean upsetting the careful balance the
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legislature has crafted between the competing policies of allowing collateral review
in limited circumstances on the one hand and of honoring the finality and
marketability of tax deeds on the other hand. We think it obvious that if the
legislature had meant to provide a separate ground for a collateral attack based
solely on the lack of diligent inquiry and effort in serving the notices, it would have
crafted a subsection (5) to section 22-45. Accordingly, the statute must be applied
as written.
¶ 33 II. Due Process
¶ 34 We next consider respondent’s contention that the tax deed should be set aside
because Lorrayne Cornelius was denied her due process right to “adequate notice”
under the United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1;
Ill. Const. 1970, art. I, § 2). Respondent argues that “[c]ollectively, the
unsuccessful attempts at personal service, failure to make diligent inquiry and
effort to locate and serve her, *** defective publication and numerous defects
within the prepared notices resulted in a total lack of notice” and a violation of
Lorrayne’s due process rights. Citing Jones v. Flowers, 547 U.S. 220 (2006), and
In re Application of the County Collector, 225 Ill. 2d 208 (2007) (Lowe II),
respondent argues that petitioner should have taken additional steps to find and
notify Lorrayne in order to satisfy due process standards after attempts to
personally serve her solely at the property of record failed. Specifically, respondent
suggests that petitioner should have asked neighbors about Lorrayne’s
whereabouts, conducted an internet search for her, and sent notice by regular mail.
¶ 35 In Jones, the issue was whether the government must take additional steps to
provide notice before taking an owner’s property when the notice of tax sale is
returned undelivered. Jones, 547 U.S. at 223. In that case, Jones purchased a home
in 1967 on Bryan Street, in Little Rock, Arkansas, and lived there with his wife
until he separated from her in 1993. Jones then moved into an apartment but
continued to pay the mortgage on the house until it was paid off in 1997. The
property taxes, however, went unpaid after the mortgage was paid off. Id.
¶ 36 In April 2000, the Commissioner of State Lands mailed a certified letter to
Jones at the Bryan Street address notifying him of the tax delinquency and his right
to redeem the property. The mailing informed Jones that unless he redeemed the
property, it would be subject to public sale two years later on April 17, 2002. The
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letter was returned “unclaimed.” Two years later, the Commissioner published a
notice of public sale in the local newspaper. No bids were submitted, but
respondent Linda Flowers was eventually allowed to submit a purchase offer. The
Commissioner mailed another certified letter to Jones at the Bryan Street address
notifying him that his house would be sold to Flowers if he did not pay his taxes,
and this letter was also returned “unclaimed.” Flowers then purchased the house.
After the 30-day period for postsale redemption passed, an unlawful detainer notice
was served at the property on Jones’s daughter, who then told Jones about the tax
sale. Id. at 223-24.
¶ 37 The United States Supreme Court in Jones began its analysis by reiterating that
“[d]ue process does not require that a property owner receive actual notice before
the government may take his property.” Id. at 226. Instead, “due process requires
the government to provide ‘notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.’ ” Id. (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
¶ 38 The Court noted, however, that it had never addressed the “new wrinkle” of
whether due process requires further measures when it is known prior to the taking
that the attempt at notice has failed. Id. at 227. The Court found that it did not “think
that a person who actually desired to inform a real property owner of an impending
tax sale of a house he owns would do nothing when a certified letter sent to the
owner is returned unclaimed.” Id. at 229. The Court decided that a person actually
desirous of informing Jones “would take further reasonable steps if any were
available.” Id. at 230.
¶ 39 The Court explained that there were several reasonable steps that could have
been taken when the certified letter to Jones was returned unclaimed: (1) the notice
could have been resent by regular mail 3 so that a signature was not required; (2) the
notice could have been posted on the front door; or (3) the notice could have been
addressed to “occupant.” Id. at 234-35. The Court rejected Jones’s claim, however,
that the Commissioner should have looked for Jones’s new address in the Little
Rock telephone book and other governmental records, including income tax rolls.
3
The Court observed that sending a letter by regular mail might increase the chances it would be
received by the intended recipient because unlike certified mail, regular mail is left at the site to be
examined later or possibly forwarded by occupants if the owner has moved. Jones, 547 U.S. at 235.
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Id. at 235-36. The Court found that such an “open-ended search for a new
address—especially when the State obligates the taxpayer to keep his address
updated with the tax collector [citation]—imposes burdens on the State
significantly greater than the several relatively easy options outlined above.” Id. at
236.
¶ 40 Finally, the Court was careful to caution that it was declining to prescribe the
form of service that states should adopt, determining instead that the State of
Arkansas could choose how to proceed in response to the Court’s conclusion that
notice was inadequate under the particular facts of this case. Id. at 238. The Court
noted that the states have taken a variety of approaches to the present question. Id. It
then listed with approval in a footnote several state statutory schemes, including the
notice provisions of the Tax Code (see 35 ILCS 200/21-75(a), 22-10, 22-15 (West
2010)). Jones, 547 U.S. at 228 n.2 (noting that many states, including Illinois,
“require that notice be given to the occupants of the property as a matter of
course”).
¶ 41 We find that respondent’s reliance upon Jones is unavailing and that due
process concerns were not violated in this case. In Lowe II, this court was asked to
reconsider its decision in Lowe I in light of Jones. We began by noting that the Tax
Code is distinguishable from the statutory scheme in Jones:
“The notice provided pursuant to the Illinois Property Tax Code is far more
comprehensive than the notice provided for in the Arkansas statute at issue in
Jones. The Arkansas statute required the state to send only one notice, by
certified mail, to a property owner notifying him of the government’s intent to
sell his property for delinquent taxes. In contrast, the Illinois statute provides
that the county collector must provide notice to a delinquent taxpayer by
certified or registered mail before obtaining a judgment order from the circuit
court authorizing the sale of the property. 35 ILCS 200/21–110, 21–115,
21–135 (West 1994). In addition, after the court has ordered the sale of the
property and the property has been sold to a tax purchaser, the county clerk
must notify the delinquent taxpayer by certified or registered mail that the
property has been sold and that the taxpayer may redeem the property by paying
the tax arrearage on or before a specified date. 35 ILCS 200/22–5 (West 1994).
Finally, a tax purchaser seeking to obtain a tax deed also must send the
delinquent taxpayer notice of the sale and the expiration of the redemption
period.” Lowe II, 225 Ill. 2d at 225-26.
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¶ 42 This court found that the due process concerns at stake in Jones were not at
issue in Lowe II because Mary Lowe, the property owner, was actually given notice
of the tax sale at a time when there was no indication that she was incompetent. Id.
at 227. This court, however, considered the argument of Lowe’s public guardian,
that Lowe was denied due process because of the lack of notice for the hearing at
which she actually lost title to her home. Id.
¶ 43 Specifically, Lowe’s public guardian relied upon Jones, arguing that certified
mail notices in that case were returned “unclaimed,” whereas, in Lowe’s case, not
only were the certified mail notices to her returned “unclaimed,” but the envelopes
contained a notation from a letter carrier that “Person is Hospitalized” along with
carrier’s initials and postal route number. The public guardian maintained that
Jones directly addressed this kind of situation and requires a party seeking a tax
deed to follow up on information provided in response to its chosen method of
service. Id. According to the guardian, had the tax purchaser, Apex, taken
additional steps it would have learned that Lowe was incompetent and hospitalized
at a mental institution. Id. at 228.
¶ 44 In rejecting the guardian’s argument, this court found that Apex did take
numerous additional steps to notify Lowe of the sale of her property and the filing
of the petition for the tax deed. Id. This court listed those additional steps as
follows: (1) Apex conducted a tract search of the property; (2) the sheriff attempted
to personally serve Lowe and “occupant”; (3) the sheriff also sent the section 22-10
take notice by certified mail addressed to Lowe and “occupant”; (4) the clerk of the
court attempted to serve Lowe and “occupant” with the section 22-10 notice by
certified mail; (5) Apex served the section 22-10 take notice on the law firm that
prepared the quit claim deed in 1993, and on the mortgagee of the property; (6)
Apex’s agent visited the property and spoke with a neighbor who said that the
Lowes owned the property but no one lived there; and (7) Apex checked city and
suburban phone directories and voter registration records to find another address
for Lowe. Id. at 228-29.
¶ 45 This court found that the steps taken by Apex exceeded those suggested in
Jones as reasonable, and in fact included an “open-ended search for a new address”
in phone books and government records that was specifically noted in Jones as
unnecessary. Id. at 229. This court said that requiring the tax purchaser to
investigate where and why Lowe might be hospitalized would be an “open-ended
search [that] would impose a significantly greater burden than required under
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Jones.” Id. at 230. Accordingly, this court concluded that the attempts at notice
were sufficient to satisfy due process under Jones. Id. at 229.
¶ 46 Turning to the facts of the case before us, we conclude that petitioner also took
numerous additional steps to notify respondent of all the proceedings in this case,
which culminated in the granting of the petition for tax deed. As in Lowe II,
petitioner here took all of the required statutory steps that were in excess of that
provided by the Arkansas statutory scheme at issue in Jones. In that regard,
petitioner ordered a title examination and a commitment for title insurance showing
the necessary parties for the tax deed. A licensed process server attempted 11 times
over a three week period to personally serve Lorrayne Cornelius, Melvin Cornelius
and “occupant.” The process server reported back that there was a vehicle in the
driveway but “no one answers our inquiries at the door.” The Will County sheriff
sent the section 22-10 take notice by certified mail addressed to Lorrayne
Cornelius, Melvin Cornelius and “occupant.” The clerk of the circuit court of Will
County also attempted to serve Lorrayne Cornelius, Melvin Cornelius and
“occupant” with the section 22-10 take notice by certified mail, return receipt
requested.
¶ 47 Respondent argues that when service failed at the property, petitioner should
have attempted to locate Lorrayne Cornelius by asking neighbors, doing an internet
search of the public records of Will County, or sending the notice to her property by
regular mail. Respondent contends that if petitioner had done a search of the public
records it would have seen a release on the mortgage of the property dated July 7,
2000, which was recorded in the county recorder’s office. On page two of the
release is the legend: “Mail to: Vincent Cornelius County Farm Professional Park
122E S. County Farm Rd., Wheaton IL.” Respondent argues that petitioner should
have reviewed this record, and then should have contacted Vincent Cornelius in an
attempt to learn the whereabouts of Lorrayne Cornelius.
¶ 48 We find that respondent’s argument must be rejected. The search of the records
of the county recorder’s office that respondent suggests is precisely the sort of
“open-ended search for a new address” of the government records that was
expressly held not to be required in Jones and Lowe II.
¶ 49 It is true that petitioner could have sent its notices by regular mail when
certified mail notice failed, but we do not read Jones as requiring this additional
step in every case. Indeed, Jones expressly noted that there was leeway for different
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approaches and observed that the Illinois statutory scheme that requires notice to be
sent to “the occupants of the property as a matter of course” in addition to the
named parties of record, was an additional step. See Jones, 547 U.S. at 234-35, 228
n.2. We also note that regular mail notice was not attempted in Lowe II either, yet
due process standards were held to be satisfied in that case.
¶ 50 Respondent also argues that the technical defect in the take notices of not
including the address and phone number of the county clerk plays into the equation
of whether due process standards were met in this case. We find no merit to that
contention. Whether the unclaimed notices included the address and phone number
of the county clerk has nothing to do with whether the notices themselves were
reasonably calculated to reach the respondent. Moreover, assuming the notices had
reached their intended recipients, the information omitted was not of such a nature
that it rendered the notices constitutionally defective in terms of apprising the
interested parties of the pendency of the action and affording them an opportunity
to present their objections.
¶ 51 III. Indemnity Fund
¶ 52 As a final matter, we note that an alternative form of relief might be available to
the estate of Lorrayne Cornelius under the indemnity provisions of the Tax Code.
See 35 ILCS 200/21-295 et seq. (West 2010). The indemnity provisions were
enacted by the legislature in 1970 in recognition that taxes may go unpaid and
property may be lost to a tax deed, in situations where there are equitable
circumstances that favor the former property owner. See Lowe I, 217 Ill. 2d at 28.
“The provisions create an indemnity fund, from which, pursuant to section 21–305
(35 ILCS 200/21–305 (West 2010)), the former property owner may seek a
monetary award for the loss of property.” Id.
¶ 53 Section 21-305(a)(1) provided at the time relevant to this case that an owner
who resides on property with four or fewer dwelling units on the last day of the
period of redemption, and who is seeking an award of $99,000 or less, may recover
from the indemnity fund by showing equitable entitlement. 35 ILCS
200/21-305(a)(1) (West 2010). The owner does not have to show a lack of fault or
lack of negligence for the loss. Lowe I, 217 Ill. 2d at 28 n.4; 35 ILCS 200/21-305
(West 2010). Moreover, the statute provides that “[t]he court shall liberally
construe this equitable entitlement standard to provide compensation wherever, in
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the discretion of the Court, the equities warrant the action.” 35 ILCS
200/21-305(a)(1) (West 2010).
¶ 54 We do not know for sure from the record before us, but it may be that section
21-305 is suited to afford equity in this case. Lorrayne Cornelius is now deceased,
and the importance of the property appears to no longer be as a place of residence
for her or her family, but the potential for recovery from the indemnity fund appears
to be an asset of her estate. See Lowe I, 217 Ill. 2d at 29. Additionally, the fair
market value of the property appears to be well under the $99,000 threshold for
obtaining recovery without the need to show lack of fault or lack of negligence.
Furthermore, the record indicates that Lorrayne must have been a responsible
homeowner for many years, who paid off a mortgage in 2000 and regularly paid her
property taxes until shortly before she died at an advanced age. It is also undisputed
that she did not receive personal service nor did she receive the certified mail
notices that were sent to her address. Under the circumstances, and given the broad
discretion afforded the circuit court in these kinds of cases, we suggest that the
administrator of the estate of Lorrayne Cornelius consider the possibility of filing
an indemnification action on behalf of her estate.
¶ 55 CONCLUSION
¶ 56 For the foregoing reasons, we reverse the appellate court’s decision to affirm
the circuit court of Will County’s order vacating the tax deed to petitioner.
¶ 57 Judgments reversed.
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