In re Application of the County Treasurer , 2011 IL App (1st) 101966 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Application of the County Treasurer & ex officio County Collector,
2011 IL App (1st) 101966Appellate Court IN RE APPLICATION OF THE COUNTY TREASURER AND EX
Caption OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS,
for Order of Judgment and Sale Against Real Estate Returned Delinquent
for the Nonpayment of General Taxes for the Year 2004 (Glohry, LLC,
Petitioner-Appellant, v. OneWest Bank and Graciela Garcia,
Respondents-Appellees).
District & No. First District, Fourth Division
Docket No. 1-10-1966
Filed August 25, 2011
Held Petitioner’s application and petition for a tax deed were properly denied
(Note: This syllabus where petitioner failed to strictly comply with the notice requirement in
constitutes no part of section 22-5 of the Property Tax Code and failed to demonstrate that it
the opinion of the court exercised due diligence in serving the notice required by section 22-10 of
but has been prepared the Code.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-COTD-2527; the
Review Hon. Edward P. O’Brien, Judge, presiding.
Judgment Affirmed.
Counsel on Terry Carter, of Carter & Reiter, Ltd., and Richard D. Glickman, both of
Appeal Chicago, for appellant.
Jeffrey S. Blumenthal, of Slutzky & Blumenthal, of Chicago, for
appellee.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Pucinski and Salone concurred in the judgment and opinion.
OPINION
¶1 In a scenario that has been replayed countless times in our troubled real estate economy,
Graciela Garcia failed to pay a year’s real estate taxes ($1,383.50) on her mortgaged
property, which opened an opportunity for an attempted tax deed purchase of her two-flat
apartment building on Chicago’s Southwest side. This appeal arises from the trial court’s
denial of a tax deed pursuant to the Property Tax Code (Code). 35 ILCS 200/1-1 et seq.
(West 2008). The attempted purchaser of the property, tax deed petitioner Glohry, LLC,
asserts the trial court erred by denying its application and petition for a tax deed. We affirm.
¶2 I. BACKGROUND
¶3 The essential facts in this appeal are generally undisputed. Graciela Garcia was the record
owner of a two-flat building with a basement located at 2943 West 43rd Street in Chicago.
To pay for the property in June of 2005, she obtained a mortgage from a mortgage broker,
executed two promissory notes in favor of MILA, Inc. (MILA), and granted two mortgages
to Mortgage Electronic Registration Systems, Inc. (MERS), which has at all times remained
the mortgagee of record. The first mortgage document identified MILA as the lender and
stated that MERS was acting “solely as nominee for Lender and Lender’s successors and
assigns.” The second mortgage document contained nearly identical language. Both mortgage
documents provided the address and phone number for MERS, as well as an 18-digit “MIN,”
an acronym for “mortgage identification number.” On August 1, 2005, MILA assigned both
promissory notes to IndyMac Bank, F.S.B. (Indy). Indy subsequently assigned the two notes
to Deutsche Bank National Trust Company (Deutsche), the current noteholder, on October
21, 2005. Indy remained the servicer of the loans.
¶4 On June 21, 2006, Ridge TP, LLC (Ridge), purchased Garcia’s property at a public
auction due to unpaid 2004 taxes, and a certificate of purchase was issued to Ridge on
August 15, 2006. The parties agree that the original statutory period in which the property
could be redeemed by Garcia or other interested parties was two years and six months from
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the date of sale. See 35 ILCS 200/21-350(b) (West 2006). The parties also agree that two
years and six months from the date of sale would be Sunday, December 21, 2008. We note
that while petitioner contends this date constitutes the expiration of the original redemption
date, respondents essentially contend that date could not fall on a Sunday and, thus, would
be Monday, December 22, 2008. See 5 ILCS 70/1.11 (West 2006) (“[t]he time within which
any act provided by law is to be done shall be computed by excluding the first day and
including the last, unless the last day is *** Sunday *** and then it shall also be excluded”).
This trivial-sounding inconsistency proved to be central to the decision of the trial court.
¶5 On October 5, 2006, Ridge extended the redemption period to February 9, 2009. Five
days later, Ridge submitted an official notice to be sent to Garcia at the subject property
pursuant to section 22-5 of the Code. 35 ILCS 200/22-5 (West 2006). The form of the notice
required that the redemption expiration date be included in three different places on the form.
Notwithstanding the extension of the redemption period five days earlier, Ridge listed the
redemption period’s expiration date as December 21, 2008, in all three blanks. It is
undisputed that Garcia never received the notice sent by the clerk’s office.
¶6 Ridge assigned the certificate of purchase to petitioner on June 28, 2007. On July 11,
2008, Indy was placed in receivership by the Federal Deposit Insurance Corporation and
became IndyMac Federal Bank, F.S.B. (Indy Federal). In September 2008, Richard
Glickman, petitioner’s attorney, and Ronald Ohr took certain measures to ascertain the
persons and entities to which petitioner needed to send the notice set forth in section 22-10
of the Code and the addresses to which said notice would be sent. See 35 ILCS 200/22-10,
22-15, 22-20, 22-25 (West 2008). Their specific efforts in this arcane, but important legal
arena will be punctiliously delineated below.
¶7 On September 24, 2008, petitioner extended the redemption period so that it would
expire on March 23, 2009, and filed a petition for a tax deed. Petitioner subsequently made
attempts to serve Garcia, MERS and MILA with the notice set forth in section 22-10. On
March 20, 2009, OneWest Bank (OneWest) acquired Indy Federal and became the successor
servicer to the two notes. Three days later, the redemption period expired without redemption
occurring.
¶8 On April 16, 2009, Glickman filed on petitioner’s behalf an application for a tax deed,
alleging in pertinent part, that on October 10, 2006, the notice required by section 22-5 of the
Code had been delivered to the county clerk to mail to Garcia. The application also alleged
that Garcia, MERS and MILA were owners, occupants and parties interested in the subject
property. Regarding the section 22-10 notice, the application represented that the sheriff’s
return of service showed that the manner of service for Garcia was certified mail sent on
October 28, 2008, the manner of service for MERS was “Corporate” on October 9, 2008, and
the manner of service for MILA was certified mail sent October 1, 2008.
¶9 On May 4, 2009, OneWest’s attorney, Jeffrey Blumenthal of Slutzky and Blumenthal,
filed a response to petitioner’s application which essentially denied that petitioner complied
with section 22-5, admitted that Garcia and MERS were owners, occupants or parties
interested in the party and further alleged that the petitioner’s list of interested parties entitled
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to notice pursuant to section 22-10 was incomplete. OneWest denied that Garcia, MERS or
MILA received notice. OneWest requested that the trial court deny the application and
dismiss the petition for a tax deed with prejudice. On November 24, 2009, Blumenthal also
filed a response on behalf of Garcia, which generally provided the same representations as
OneWest’s response.
¶ 10 On May 18, 2010, petitioner and respondents tendered their “Joint Trial Materials,”
which included their stipulations, certain exhibits and the majority of the aforementioned
facts and documents. We recite only that testimony which is relevant to the issues raised on
appeal. Ohr, a member of petitioner, testified that he inspected the subject property three
times in September 2008 and brought his inspection report to Glickman. The report
essentially pertained to any indicia, or lack thereof, of who occupied the subject property and
described the property’s condition.
¶ 11 Glickman, who had practiced in the tax deed area for almost 50 years, testified that Ohr’s
office had prepared the first notice extending the redemption period. Glickman testified that
section 22-5 set forth notice to be submitted to the county clerk within 4 months and 15 days
of the tax sale to be directed to the last tax assessee of record, in this case Garcia, and that
the redemption date was required to be included in the notice. He acknowledged that when
the section 22-5 notice was tendered to the county clerk on October 10, 2006, it listed the
redemption date of December 21, 2008, even though the redemption expiration date had
already been extended once to February 9, 2009.
¶ 12 Glickman testified that prior to the expiration of the extended period of redemption on
March 23, 2009, there was an additional notice-serving period, during which a diligent
inquiry and effort had to be made to serve all owners, occupants and interested parties.
Petitioner retained Glickman for this purpose. Pursuant to his investigation, he had Ohr
inspect the property and prepare a report and apparently at some point, located Garcia’s
warranty deed from a tract book search. Glickman also identified his search results from the
Chicago Abstract, Inc., regarding the subject property on September 11, 2008. The results
indicated that on June 28, 2005, the subject property was deeded to Garcia and she granted
two mortgages on the property to MILA. The three documents were recorded on August 10,
2005. Glickman also testified that he always searched the Cook County recorder’s records
both before and after obtaining the Chicago Abstract document but could not specifically
recall doing so in this case. Glickman apparently determined from the Chicago Abstract, Inc.,
results and the mortgage documents that Garcia, MILA and MERS had sufficient interests
in the property to warrant directing notice toward them. On September 22, 2008, Glickman
took certain additional steps, including performing an Accurint search, to attempt to identify
occupants of the property and locate Garcia. His attempt to telephone Garcia was
unsuccessful. Our record also indicates that in October 2008, petitioner unsuccessfully
attempted to mail notice to Garcia but whether these particular attempts were sufficient is not
at issue on appeal.
¶ 13 Glickman reviewed the mortgage documents to determine where to serve the remaining
entities and observed that the documents referred to both MERS, the mortgagee as nominee
for the lender, and MILA, the lender. As to MERS, the parties stipulated that during the
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statutory notice-serving period, MERS was served with notice, which it forwarded to Indy
Federal. Regarding MILA, Glickman checked the Illinois Secretary of State’s website to
identify MILA’s registered agent in Illinois but saw that MILA, a Washington corporation,
had withdrawn its foreign registration in 2007. Glickman found that as a result, MILA was
a nonentity in Illinois. He believed that MILA had a recorded interest in the property as the
lender but that it was his duty to make a diligent inquiry and effort to find MILA only if it
“had a nexus in Illinois.” He also believed there was no requirement to serve an out-of-state
corporation that has withdrawn from Illinois, regardless of whether it had a recorded interest,
and that it was MILA’s duty as an interested party to keep a registered agent in Illinois. In
addition, Glickman believed that “service on MERS, as their registered agent, would have
been service on MILA even though they’ve withdrawn if they were the lender, or any
successor lender that they might have had that they didn’t report an interest to.” Nonetheless,
he searched for MILA’s president to determine where to send notice. We note that our record
includes the letter, apparently containing the section 22-10 notice, sent by certified mail to
MILA on October 1, 2008, care of Mark Hikel, MILA’s president, at the same address listed
for Hikel in the Illinois Secretary of State website’s search results. That address was 6021
244th Street Southwest in Mountlake Terrace, Washington, 98043. We also note that the
envelope was marked “return to sender” on October 4, 2008, with a forwarding address for
MILA at 601 Union Street, Suite 4400 in Seattle, Washington, 98101-1367. In addition, the
return receipt was file stamped by the clerk’s office on October 22, 2008. Glickman testified
that he did not check the court file between September 23, 2008, and December 23, 2008,
to determine what happened to the certified mail sent to MILA. Glickman also testified that
he did not examine the Washington Secretary of State’s website regarding MILA because his
attempt to serve MILA was gratuitous. Published notice directed toward Garcia, MERS and
MILA was provided from November 19, 2008, to November 21, 2008.
¶ 14 Glickman further testified that he was familiar with MERS mortgages, although there
were different types. He had also occasionally examined chapters 10 and 11 of a publication
by the Illinois Institute for Continuing Legal Education (IICLE) titled “Real Estate Taxation,”
which was authored by Douglas Karlen and Rodney Slutzky but essentially disagreed with
its representation that MERS should be contacted to obtain the name of the current
noteholder and that both the current noteholder and MERS should be served with notice. He
believed there was no reason to call MERS in this instance because it was served with notice
and was the only entity, as mortgagee, nominee and trustee for the lender, which was entitled
to notice. When he read a provision of the IICLE indicating that MERS was akin to a land
trust, Glickman testified that a beneficiary of a land trust is served with notice when the
beneficiary is disclosed of record. In addition, he testified that due to noteholders not
receiving notice regarding unrecorded documents in the 1990s and early 2000s, MERS’s
purpose was to permit the free assignment of mortgage notes without having to record
assignments and to act as a clearing house. He further testified that MERS was formed to
“cover the gap” and accept service. He did not previously know that “MIN” stood for
“mortgage identification number” or that a MIN number appeared on the top of a MERS
mortgage.
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¶ 15 Rodney Slutzky testified, in pertinent part, that in November 2009, Blumenthal asked
him to conduct a search for MILA. After spending but three or four minutes conducting an
Internet search with the Google search engine, he learned that MILA had filed for bankruptcy
and that the website for the bankruptcy trustee’s law firm revealed five addresses, one of
which we observe was similar to the forwarding address added to the certified letter sent to
MILA but marked “return to sender.” The address was 4400 Two Union Square, 601 Union
Street, Seattle, Washington, 98101-2352. Slutzky also visited the Washington Secretary of
State’s website, which listed MN Service Corporation as MILA’s agent and the same address
as the forwarding address added to the certified letter sent to MILA. The website also showed
that Geoffrey Groshong, MILA’s bankruptcy trustee, was also MILA’s president and listed
the same address for Groshong as the aforementioned address on his law firm’s website.
Exhibits corroborating the steps taken in Slutzky’s Internet search were admitted into
evidence.
¶ 16 Charles Boyle, the assistant vice president of the default risk management litigation
department of OneWest, testified that he was previously employed with OneWest’s
predecessors, Indy and Indy Federal. OneWest currently serviced the loans in question on
behalf of Deutsche and its responsibilities included maintaining a valid interest in the
mortgages and the subject property, and ensuring that taxes were paid. Boyle testified that
pursuant to the pooling and servicing agreement between Indy and Deutsche, Indy had
authority to act regarding the loan without first consulting with the lender. Boyle also
testified that a limited power of attorney executed by Deutsche in favor of OneWest similarly
gave OneWest the power to act as if it were the lender and take all actions regarding the loan
without first conferring with Deutsche. In addition, he testified that a corporate resolution
between MERS and OneWest, dated March 19, 2009, permitted employees and officers of
OneWest to sign documents on behalf of MERS without conferring first with MERS and that
Indy and Indy Federal had previously had the same authority. Boyle further testified that
MERS permitted lenders and servicers to register a mortgage and easily assign interests
between different servicing entities. He testified that loans were commonly transferred and
MERS generally would forward notice of a tax sale to the servicer. When counsel informed
Boyle that MERS forwarded the section 22-10 notice it received to Indy Federal, Boyle
testified he did not know why his company did not pay the taxes. Following Boyle’s
testimony, the court entered a continuance and ordered the parties to submit briefs.
¶ 17 At a hearing on June 10, 2010, the trial court denied the application and petition for a tax
deed following the parties’ arguments. Regarding the notice required by section 22-10, the
court found, in pertinent part, that service of notice to MILA, which had assigned its interest
in the note, was a moot point. The court also found that petitioner made a diligent inquiry to
serve Garcia with notice. As to MERS, the court found it was properly served with notice
through its Illinois agent. The court found that as to any unrecorded interests, including an
unrecorded assignment, the best way to receive notice is to record one’s interest. As a result,
the court found there was no obligation for a petitioner to search for potential assignees who
had not recorded their interest and that petitioner had made a diligent inquiry and effort to
serve the section 22-10 notice.
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¶ 18 The trial court found, however, that petitioner failed to satisfy section 22-5 of the Code
because the date included in the notice was incorrect. Specifically, the court found that
substantial compliance, rather than strict compliance, was required and that either the
original or extended redemption date would have sufficed but that neither of those days
would have been December 21, 2008, because it was a Sunday. The court found that
prejudice regarding an error in the content of the notice was to be presumed, even though
Garcia never received notice.
¶ 19 II. SECTION 22-5 NOTICE
¶ 20 Petitioner first asserts that the section 22-5 notice in this case was sufficient. Petitioner
contends it is unclear what standard of compliance applies to section 22-5, but urges us to
find that substantial compliance is sufficient. In contrast, respondents contend that strict
compliance is required. This issue of first impression presents a question of statutory
construction, which we review de novo. In re Application of the County Collector, 356 Ill.
App. 3d 668, 670 (2005).
¶ 21 Our primary objective in interpreting a statute is to determine and give effect to the
legislature’s intent. Barragan v. Casco Design Corp., 216 Ill. 2d 435, 441 (2005). All other
rules of statutory construction are subordinate to this rule. Barragan, 216 Ill. 2d at 441. The
most reliable indicator of the legislature’s intent is the statute’s language, which must be
given its plain and ordinary meaning. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d
433, 440 (2010). In determining the statute’s plain meaning, we consider the statute in its
entirety, the subject being addressed and the apparent purpose of the legislature in enacting
the statute. Solon, 236 Ill. 2d at 440. If possible, a statute should be construed so that no
language is rendered meaningless or superfluous. In re Application of the County Collector,
356 Ill. App. 3d at 670. In addition, the statutory construction principle that the expression
of one thing in a statute excludes any other thing may be used to ascertain the legislature’s
intent where it is unclear. Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 153
(1997). This maxim is applied only where it appears to reflect, and not defeat, the
legislature’s intent. Bridgestone/Firestone, Inc., 179 Ill. 2d at 153-54; see also People v.
Roberts, 214 Ill. 2d 106, 117 (2005) (the maxim expressio unius est exclusio alterius is
subordinate to the primary principle that the legislature’s intent controls the construction of
a statute).
¶ 22 Where a statute’s language is clear and unambiguous, the court must apply it as written
without resorting to extrinsic aids of statutory interpretation. Solon, 236 Ill. 2d at 440.
Nonetheless, if a statute could be understood by reasonably well-informed persons in
multiple ways, the statute will be considered ambiguous. MD Electrical Contractors, Inc. v.
Abrams, 228 Ill. 2d 281, 288 (2008). Where a statute’s meaning is ambiguous, courts may
look beyond the statutory language and consider the law’s purpose, the evil that it was
intended to remedy and the statute’s legislative history. Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 217 (2008). Furthermore, we may
consider the resulting consequences from construing the statute in either manner and
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presume the legislature intended no inconvenient, absurd or unjust consequences. Solon, 236
Ill. 2d at 441.
¶ 23 Section 22-5, titled “Notice of sale and redemption rights,” states in pertinent part that
“[i]n order to be entitled to a tax deed, within 4 months and 15 days after any sale held under
this Code, the purchaser or his or her assignee shall deliver to the county clerk a notice to
be given to the party in whose name the taxes are last assessed as shown by the most recent
tax collector’s warrant books, in at least 10 point type in the following form completely filled
in.” (Emphases added.) 35 ILCS 200/22-5 (West 2006). The form set forth in section 22-5
includes three blanks in which the purchaser or assignee must state the date on which the
redemption period will expire. 35 ILCS 200/22-5 (West 2006). Section 22-5 further states
that “[w]ithin 10 days after receipt of said notice, the county clerk shall mail to the addresses
supplied by the purchaser or assignee, by registered or certified mail, copies of said notice
to the party in whose name the taxes are last assessed as shown by the most recent tax
collector’s warrant books.” 35 ILCS 200/22-5 (West 2006).
¶ 24 Respondents essentially contend that the statute clearly states that in order to be entitled
to a tax deed, a purchaser or his assignee must completely fill in the take notice form, which
is ultimately given to the last tax assessee, and that implicit in this requirement is that the
form must be filled in with correct information. Thus, to allow an assignee to be entitled to
a tax deed despite having filled in the form with erroneous information would contravene the
clear intent of the statute and be absurd. Respondents contend it follows that strict
compliance is required to fulfill the legislature’s intent. We find it notable that the statute
does not merely state that the purchaser or assignee “shall” take certain actions, but that it
strongly indicates the consequence of failing to take those actions, i.e., that the purchaser will
not be entitled to a tax deed.
¶ 25 Contrarily, petitioner contends that we must read the post-sale notice provided in section
22-5 with other provisions of the Code. Section 22-10, titled “Notice of expiration of period
of redemption,” provides for notice which is generally subsequent to that set forth in section
22-5 and states, in pertinent part, that “[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 6 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, including any mortgagee of record, as provided below.” (Emphasis added). 35
ILCS 200/22-10 (West 2008). In addition, section 22-40, titled “Issuance of deed;
possession,” states as follows:
“If the redemption period expires and the property has not been redeemed and all
taxes and special assessments which became due and payable subsequent to the sale
have been paid and all forfeitures and sales which occur subsequent to the sale have
been redeemed and the notices required by law have been given and *** the
petitioner has complied with all the provisions of law entitling him or her to a deed,
the court shall so find and shall enter an order directing the county clerk on the
production of the certificate of purchase and a certified copy of the order, to issue to
the purchaser or his or her assignee a tax deed. The court shall insist on strict
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compliance with Section 22-10 through 22-25.” (Emphasis added). 35 ILCS 200/22-
40(a) (West 2008).
¶ 26 Appellant contends that because section 22-40 specifies that “strict compliance” is
required for that section’s notice provisions, by implication, strict compliance with the other
notice in section 22-5 is not required and substantial compliance will suffice. It surely merits
mention that because the prefatory language found in section 22-5 is substantially the same
as the prefatory language found in section 22-10, it could easily be argued that reading such
language in 22-5 to require strict compliance would also require the same to be said of the
language in section 22-10. Compare 35 ILCS 200/22-5 (West 2006) (“In order to be entitled
to a tax deed, *** the purchaser or his or her assignee shall ***.”), with 35 ILCS 200/22-10
(West 2008) (“A purchaser or assignee shall not be entitled to a tax deed to the property sold
unless ***.”). Thus, reading the prefatory language in section 22-5 to require strict
compliance would render the “strict compliance” language found in section 22-40
superfluous.
¶ 27 Accordingly, if we follow the plain meaning of section 22-5 by finding strict compliance
is required, the “strict compliance” language of section 22-40 may be rendered superfluous.
On the other hand, if we give meaning to the language in section 22-40 by finding strict
compliance with section 22-5 is not required, we contravene the intent indicated by the
prefatory language of section 22-5 and risk rendering such language meaningless. We find
these provisions of the Code when read together expose an ambiguity, if not a contradiction,
regarding whether strict or substantial compliance with section 22-5 is required to obtain a
tax deed. Fortunately, a thorough review of the legislative history of these provisions sheds
sufficient light to resolve this ambiguity.
¶ 28 Over the last century, the Code, formerly known as the Revenue Act, has been repeatedly
amended and recodified. For clarification, we refer to the provision currently found in section
22-5 as the post-sale notice provision, the provision currently found in section 22-10 as the
pre-expiration notice provision, and the provision currently found in section 22-40 as the tax
deed provision. We further note that the latter provisions were enacted long before the post-
sale notice provision.
¶ 29 The tax deed provision has not always expressly required “strict compliance” with the
the pre-expiration notice provision. Hurd’s Rev. Stat. 1909, ch. 120, ¶¶ 216, 219; Hurd’s
Rev. Stat. 1905, ch. 120, ¶¶ 216, 219; Hurd’s Rev. Stat. 1881-82, ch. 120, ¶¶ 216, 219.
Notwithstanding the absence of such language, our supreme court held that strict compliance
with this notice requirement was required. Clark v. Zaleski, 253 Ill. 63, 74 (1911); Bailey v.
Smith, 178 Ill. 72, 74 (1899). Our supreme court also recognized that the statute was enacted
to carry our the mandate of the Illinois Constitution. Gaither v. Lager, 2 Ill. 2d 293, 299
(1954). Section 5 of article IX of the Constitution of 1870 stated as follows:
“The right of redemption from all sales of real estate for the non-payment of taxes or
special assessments of any character whatever, shall exist in favor of owners and
persons interested in such real estate, for a period of not less than two years from
such sales thereof. And the general assembly shall provide by law for reasonable
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notice to be given to the owners or parties interested, by publication or otherwise, of
the fact of the sale of the property for such taxes or assessments, and when the time
of redemption shall expire: Provided, that occupants shall in all cases be served with
personal notice before the time of redemption expires.” Ill. Const. 1870, art. IX, § 5.
See also Ill. Const. 1970, art. IX, § 8(e) (“Owners, occupants and parties interested shall be
given reasonable notice of the sale and the date of expiration of the period of redemption as
the General Assembly provides by law.”).
¶ 30 In July 1967, the General Assembly amended the tax deed provision by adding that “the
court shall insist on strict proof of notice.” (Internal quotation marks omitted.) In re
Application of County Collector, 66 Ill. App. 3d 437, 445 (1978); 1967 Ill. Laws 2134.
Regrettably, transcripts of the legislative history from this time period are unavailable.
Hoffman Estates Professional Firefighters Ass’n v. Village of Hoffman Estates, 305 Ill. App.
3d 242, 251 (1999) (transcripts of legislative debates first became available in 1971). It
appears however, that this amendment did not change the law regarding the standard of
compliance required for the pre-expiration notice but, rather, memorialized what was already
understood. In 1970, the tax deed provision was amended to specify that “[t]he court shall
insist on strict compliance with the provisions of Section 263 of this Act,” section 263 being
the pre-expiration notice provision. Pub. Act 76-2329 (eff. July 1, 1970) (amending Ill. Rev.
Stat. 1967, ch. 120, ¶ 747); Ill. Rev. Stat. 1969, ch. 120, ¶¶ 744, 747; Ill. Rev. Stat. 1971, ch.
120, ¶¶ 744, 747.
¶ 31 Several years later, the post-sale notice provision was enacted. Pub. Act 79-1455 (eff.
Sept. 30, 1976) (adding Ill. Rev. Stat. 1977, ch. 120, ¶ 722a). In contrast to the pre-expiration
notice provision, this new provision stated that a purchaser or his assignee shall not be
entitled to a tax deed unless he delivered the notice provided for therein within six months
after a sale. Pub. Act 79-1455 (eff. Sept. 30, 1976) (adding Ill. Rev. Stat. 1977, ch. 120,
¶ 722a). Thus, this new notice was to be given prior to the pre-expiration notice and was also
to be delivered to the county clerk to be given to the party in whose name the taxes were last
assessed. Pub. Act 79-1455 (eff. Sept. 30, 1976) (adding Ill. Rev. Stat. 1977, ch. 120,
¶ 722a). Representative Samuel Maragos stated that the purpose of the tax deed procedures
was to ensure that “any home owner whose property is being taken away by the foreclosure
procedures of a tax deed that he be given additional time and notice.” 79th Ill. Gen. Assem.,
House Proceedings, June 7, 1976, at 33 (statement of Representative Maragos). In addition
to adding the post-sale notice provision, this public act increased the redemption period
under certain circumstances and made certain changes to the manner of notice provided for
in the pre-expiration notice provision. Notably, the tax deed provision was not amended by
this public act.
¶ 32 Shortly thereafter, the post-sale notice provision was amended to provide the current
redemption amount to the tax assessee. Pub. Act 80-1006 (eff. Oct. 1, 1977) (amending Ill.
Rev. Stat. 1977, ch. 120, ¶ 722a). The provision also required the notice to inform the
assessee that the redemption amount “is subject to increase at six month intervals from the
date of sale” and that the assessee was to contact the county clerk regarding the precise
amount owed prior to redeeming. Pub. Act 80-1006 (eff. Oct. 1, 1977) (amending Ill. Rev.
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Stat. 1977, ch. 120, ¶ 722a). In addition, notice was now required to be given to the assessee
within five months, rather than six months, of the sale. Thus, it is clear that the legislature’s
goal was to provide all necessary information to the owner to assist and encourage a tax
assessee to redeem his property. The post-sale notice provision was the only provision
amended by this public act. Following the enactment and amendment of the post-sale notice
provision, any amendments to the tax deed provision were merely technical in nature or
otherwise made changes that were unrelated to the “strict compliance” language.
¶ 33 Finally, the Revenue Act of 1939 was repealed and its provisions were recodified under
the Code. Pub. Act 88-455 (eff. Jan. 1, 1994) (repealing 35 ILCS 205/241a, 263, 266 (West
1992), enacting 35 ILCS 200/22-5 et seq. (West 1994)). The public act reorganized certain
provisions but was not intended to make any substantive changes. See 88th Ill. Gen. Assem.,
Senate Proceedings, April 22, 1993, at 286; 88th Ill. Gen. Assem., House Proceedings, May
21, 1993, at 120, 165. The post-sale notice requirement (35 ILCS 205/241a (West 1992))
simply became section 22-5 (35 ILCS 200/22-5 (West 1994)). In contrast, the single statutory
section that had embodied the pre-expiration notice provision as well as related matters (35
ILCS 205/263 (West 1992)) was divided and recodified into multiple sections (35 ILCS
200/22-10, 22-15, 22-20, 22-25 (West 1994)). The former tax deed provision (35 ILCS
205/266 (West 1992)) was similarly divided and recodified into several sections (see 35
ILCS 200/22-30, 22-40, 22-45, 22-55 (West 1994)). Notably, the requirement of strict
compliance with the pre-expiration notice provision formerly found in section 263 was
included in section 22-40. In place of the now-repealed section 263, section 22-40 stated that
“[t]he court shall insist on strict compliance with Section 22-10 through 22-25,” i.e., those
sections which were formerly embodied in section 263. See 35 ILCS 200/22-40 (West 1994).
¶ 34 We find that our review of the aforementioned legislative history supports respondents’
position that strict compliance, rather than substantial compliance, was intended by the
legislature. The General Assembly transcripts confirm that the purpose of the section 22-5
post-sale notice provision was to provide a tax assessee, who is usually the property owner,
with additional notice which conveys all necessary information. To achieve this goal, the
legislature has indicated that a tax purchaser will not be entitled to a tax deed unless he gives
the notice required. Permitting a tax purchaser to be entitled to a deed despite not fully
complying with section 22-5 would defeat the legislature’s intent. Section 22-5 “lend[s]
credence to the idea that tax purchasers should not be allowed to disclose only that
information they deem relevant.” In re Application of the County Collector, 295 Ill. App. 3d
703, 709 (1998) (“[a]dditional 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”).
¶ 35 In contrast, not only did the addition of the “strict compliance” language to the tax deed
provision memorialize what was already the law, but more importantly, it came before the
enactment of the post-sale notice provision of section 22-5. Jahn v. Troy Fire Protection
District, 163 Ill. 2d 275, 282 (1994) (when choosing between two directly conflicting
statutes, the more recent enactment will generally prevail as the later expression of the
legislature’s intent). In addition, it appears that following the enactment of the post-sale
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notice provision, the general assembly has never revisited the substance of the “strict
compliance” language found in the tax deed provision. This is not surprising. Not only has
more than a century passed since our supreme court found that the pre-expiration notice
provision requires strict compliance, but neither the parties nor this court have found a single
case since the enactment of the post-sale notice provision in 1976 in which the standard of
compliance required with this notice provision was at issue. Accordingly, we find no insight
is to be gained from the language of section 22-40, which explicitly requires strict
compliance with the notice found in section 22-10, but says nothing regarding section 22-5.
¶ 36 Petitioner contends for the first time in its reply brief that requiring strict compliance in
this instance will require strict compliance with other provisions of the Code providing that
an individual “shall” give notice. See 35 ILCS 200/21-110, 21-135 (West 2008). This
argument is waived. See Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006) (“[p]oints not argued are
waived and shall not be raised in the reply brief”). Waiver aside, without interpreting statutes
that are not before us, we simply note that our holding is not merely based on the word
“shall” appearing in section 22-5; rather, it is based on the language of section 22-5
indicating the result of failing to do what is specified by the statute. A tax deed petitioner
must do as required by the statute “[i]n order to be entitled to a tax deed.” (Emphasis added.)
35 ILCS 200/22-5 (West 2006). It would be absurd to find the legislature intended a
purchaser to be entitled to a tax deed even where he had not done as required by the statute.
Petitioner further contends that strict compliance should not be required because the post-sale
notice provided by section 22-5 does not fall within the context of a tax deed proceeding.
Prior to the enactment of the Code, this provision fell under the “Sale of Real Property for
Delinquent Taxes” heading of the Revenue Act, whereas the pre-expiration notice and tax
deed provision fell under the “Tax Deeds, Redemptions, Sales in Error” heading of the Act.
35 ILCS 205/241a, 263, 266 (West 1992). Now, however, all three provisions appear under
article 22 of the Code, titled, “Tax Deeds and Procedures.” 35 ILCS 200/22-5, 22-10, 22-40
(West 2006); 35 ILCS 200/22-5, 22-10, 22-40 (West 2008). Accordingly, the Code itself
refutes petitioner’s argument. That a petition for a tax deed has not been filed at the time the
section 22-5 notice is served does not change the result.
¶ 37 We also reject petitioner’s assertion that the notice provision of section 22-10 requires
a higher standard of compliance than that of section 22-5 because at the time the 22-10 notice
is served, the threat of property loss is imminent. We find that not only is section 22-5
intended to assist property owners in redeeming their property before interest accumulates,
but that implicit in the enactment of the post-sale notice provision is the recognition that a
tax assessee should be given earlier notice and thus, additional time to make arrangements
to preserve property rights. This court has recognized that persons of limited education or
knowledge may overlook tax payments or, in good faith, be unable to make the necessary
payments. See In re Application of the County Collector, 295 Ill. App. 3d at 708. Although
section 22-10 provides interested parties notice between three and six months before the
redemption period expires, the frequently much earlier notice of section 22-5 protects
impoverished and unsophisticated parties who need additional time to acquire the necessary
funds for redemption. Accordingly, the difference between the purposes of these notice
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provisions does not indicate that the legislature deemed one provision to be more important
than the other.
¶ 38 Here, petitioner failed to strictly comply with section 22-5. The notice form set forth in
this section requires the date on which the redemption period will expire to be included in
three different places. Petitioner listed December 21, 2008, as the redemption expiration date
in all three places. At the time this notice was submitted to the clerk’s office, the redemption
period had already been extended to February 9, 2009. Accordingly, the date included in the
form was incorrect. We note that the trial court indicated a petitioner has no obligation to
notify a tax assessee that the redemption period has been extended. See Jeffrey S. Blumenthal
& David R. Gray, Jr., Extension of the Redemption Period, Real Estate Taxation § 11.4 (Ill.
Inst. for Cont. Legal Educ. 2008) (an extension of the redemption period may be obtained
by filing written notice with the county clerk but it is unnecessary to give other parties notice
of the extension). To be clear, we are not holding that section 21-385 (35 ILCS 200/21-385
(West 2006)) requires a tax purchaser to notify anyone other than the county clerk of the
extension itself but, rather, find only that, whereas here, the redemption date had been
changed prior to submitting the section 22-5 notice, that section requires that the redemption
expiration date included in the form be accurate, i.e., the current expiration date. Where the
purchaser has extended the redemption period prior to the issuance of the section 22-5 take
notice, we find it entirely reasonable to charge him with knowledge of his own actions. Not
only should the purchaser have known that the redemption date had been changed, but his
assignee, the ultimate beneficiary of obtaining a tax deed for a property based on the payment
of one year’s real estate taxes, should properly be charged with ensuring that both he and his
predecessor have taken all necessary steps to perfect the right to a tax deed.
¶ 39 Even assuming the original redemption date was sufficient to satisfy section 22-5, the
date provided by petitioner was nonetheless incorrect. It is undisputed that Garcia as tax
assessee had two years and six months in which to redeem the property and that the final day
would ordinarily have fallen on Sunday, December 21, 2008. When the final day is a Sunday,
however, it is excluded from calculating the time period in which the property may be
redeemed. See 5 ILCS 70/1.11 (West 2006). Accordingly, the original redemption date was
Monday, December 22, 2008.
¶ 40 Petitioner contends it would be nonsensical and place additional burdens on the tax
purchaser to be required to ascertain weekend and holiday dates 2½ years in the future. As
stated, we find this is precisely what the legislature intended. We are confident that the
minuscule burden of requiring a tax purchaser to consult a calendar will not deter individuals
from becoming tax purchasers. See also In re Application of the County Collector, 295 Ill.
App. 3d at 709 (“[w]e see no discernible inconvenience to tax purchasers in requiring them
to fully disclose any certificate number prefix”); Gage v. Davis, 129 Ill. 236, 240 (1889)
(“[t]he provision of the statute requiring the purchaser at the tax sale, or his assignee, to
notify the person in possession of the lands when the time of redemption will expire, is
imperative, and a notice which specifies a wrong date cannot be regarded as any notice
whatever, within the meaning of the statute”). Finally, having determined that strict
compliance is required, we need not consider petitioner’s argument that Garcia failed to
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demonstrate she was prejudiced by the erroneous date. See In re Application of the County
Collector, 295 Ill. App. 3d at 708 (under a strict compliance standard, prejudice is
presumed).
¶ 41 III. SECTION 22-10 NOTICE
¶ 42 Respondents assert that even if the section 22-5 notice was proper, petitioner was still not
entitled to a tax deed because it failed to make a diligent inquiry and effort to identify and
serve Deutsche and Indy Federal with section 22-10 notice. Diligence is a factual question
and we will not reverse the trial court’s determination unless it is against the manifest weight
of the evidence. Gacki v. La Salle National Bank, 282 Ill. App. 3d 961, 964 (1996).
¶ 43 As stated, section 22-40 of the Code provides that “[i]f the redemption period expires and
the property has not been redeemed and *** the notices required by law have been given ***
and the petitioner has complied with all the provisions of law entitling him or her to a deed,
the court shall so find and shall enter an order directing the county clerk on the production
of the certificate of purchase and a certified copy of the order, to issue to the purchaser or his
or her assignee a tax deed. The court shall insist on strict compliance with Section 22-10
through 22-25.” (Emphasis added.) 35 ILCS 200/22-40(a) (West 2008). In addition, section
22-10 provides that “[a] purchaser or assignee shall not be entitled to a tax deed to the
property sold unless *** 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,
including any mortgagee of record, as provided below.” (Emphasis added.) 35 ILCS 200/22-
10 (West 2008). Section 22-15 states, in pertinent part, as follows:
“The purchaser or his or her assignee shall give the notice required by Section 22-10
by causing it to be published in a newspaper as set forth in Section 22-20. In addition,
the notice shall be served by a sheriff *** upon owners who reside on any part of the
property sold by leaving a copy of the notice with those owners personally. ***
***
The same form of notice shall also be served, in the manner set forth under
Sections 2-203, 2-204, 2-205, 2-205.1, and 2-211 of the Code of Civil Procedure,
upon all other owners and parties interested in the property, if upon diligent inquiry
they can be found in the county, and upon the occupants of the property.
***
When a party interested in the property is a trustee, notice served upon the trustee
shall be deemed to have been served upon any beneficiary or note holder thereunder
unless the holder of the note is disclosed of record.
***
If any owner or party interested, upon diligent inquiry and effort cannot be found
or served with notice in the county, then the person making the service shall cause
a copy of the notice to be sent by registered or certified mail, return receipt requested,
to that party at his or her residence, if ascertainable.” (Emphasis added.) 35 ILCS
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200/22-15 (West 2008).
¶ 44 The petitioner for a tax deed carries the burden of demonstrating that it complied with
the Code and provided the requisite notice. In re Application of Ward, 311 Ill. App. 3d 314,
319 (1999). The Code requires a tax purchaser to serve notice upon all individuals holding
an interest in the property if their identities can be discovered through diligent inquiry. Banco
Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 212 (2002). A diligent inquiry is
that inquiry which a diligent person who is intent on discovering a fact would reasonably
make. Banco Popular, 335 Ill. App. 3d at 213; In re Application of the County Collector for
Judgment & Order of Sale Against the Lands & Lots Returned Delinquent for Nonpayment
of General Taxes for the Year 1987 & Prior Years, 278 Ill. App. 3d 168, 172 (1996). The
inquiry must be made in good faith to ascertain the truth. In re Application of County
Treasurer, 32 Ill. App. 3d 161, 165 (1975); but cf. In re Application of the County Collector,
167 Ill. App. 3d 521, 525 (1988) (“a person who by an unrecorded document not in the chain
of title has assumed indebtedness secured by a mortgage on the property does not come
within those limits [of persons interested] even if the holder of the certificate of purchase
knows of that assumption of the mortgage indebtedness”). In addition, a tax purchaser has
failed to act with minimal diligence if he has not made reasonable efforts to notify all persons
whose interest may reasonably be inferred from the public records regarding the property’s
ownership. In re Application of the County Treasurer, 347 Ill. App. 3d 769, 777, 778 (2004)
(citing Payne v. Williams, 91 Ill. App. 3d 336, 341-42 (1980)); see also Jeffrey S. Blumenthal
& David R. Gray, Jr., Notices Required by §§22-10 Through 22-30–Within Six to Three
Months Prior to the End of the Redemption Period, Real Estate Taxation § 11.6(l), at 1113
(Ill. Inst. for Cont. Legal Educ. 2008) (“The authors suggest that tax deed petitioners should
serve notice on all parties even remotely interested in the property, as revealed by a diligent
inquiry. In other words, tax deed petitioners should never do minimum compliance.”).
¶ 45 We begin by considering what information Glickman knew from looking at the recorded
mortgage documents. Both mortgage documents identified MILA as the lender and stated
that MERS, the mortgagee, was acting solely as nominee for not only the lender, but also for
the lender’s successors and assigns. Thus, these documents clearly identify interests disclosed
of record in MERS, MILA, MILA’s successors and MILA’s assigns. At a minimum, interests
held by MILA’s successors and assigns can be inferred from the record. That no successor
or assign existed when the documents were drafted and thus, none were identified by name
does not change the result. See In re Application of Ward, 311 Ill. App. 3d at 316-17, 319-20
(where a recorded plat of a subdivision showed the property was held for the benefit of
unnamed nearby homeowners, such homeowners had an interest in the property and the tax
petitioner failed to make a diligent inquiry to ascertain their identities and serve them with
notice). In addition, Glickman himself acknowledged at trial that MILA may have had a
successor lender.
¶ 46 Glickman, an attorney and well-seasoned veteran of these somewhat obscure tax deed
proceedings, testified that the purpose of MERS was to allow for the free assignment of
mortgage notes without having to record assignments. He acknowledged that MERS was
formed to cover the notice gap for documents that were not being recorded. Contrary to
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petitioner’s suggestion, Glickman’s testimony indicates that MERS was formed not to
substitute the notice ordinarily provided to noteholders and lenders, but rather, to supplement
such notice. In addition, Glickman, an individual who is familiar with MERS, would
certainly be alerted that other interests are likely involved upon seeing that this was a MERS
mortgage. In any event, we find that the mortgage documents’ reference to the lender, its
successors and assigns as well as the mortgagee’s indicative name, Mortgage Electronic
Registration System, would alert even a less sophisticated tax petitioner that interests were
likely held by entities other than MERS and MILA. While we agree that an open-ended
inquiry to find the names of interested parties is not required, we nonetheless find that a
person determined to discover the names of the individuals holding the interests disclosed
of record would have utilized the phone number and address listed for MERS which was in
fact disclosed of record. Bluntly put, we find it curious that Glickman would telephone
Garcia but find it unnecessary to telephone MERS. Although Glickman testified he was
previously unaware of the MIN on the mortgage documents, he may have learned the purpose
of the MIN had he contacted MERS.
¶ 47 We also note that testimony was presented regarding certain chapters of the “Real Estate
Taxation” IICLE authored by Karlen and Slutzky. We find that the following provision of
the most recent edition constitutes sound advice:
“Noteholders should be traced in the following situations.
*** [W]hen the record interest under a mortgage is held by Mortgage Electronic
Registration Systems, Inc. (MERS), the current noteholder may be ascertained. The
original lender will register its note with MERS and assign its mortgage interest to
MERS, who will act as a trustee for the registered noteholder. If the lender
subsequently assigns its note, it will register the assignment with MERS, who will
continue to act as trustee–now for the newly registered assignee. A tax deed
petitioner may obtain the name of the current servicing agent by contacting MERS
at 800/646-6377 or www.mers-servicerid.org. The requester must furnish an 18-digit
mortgage identification number (MIN) property address, or borrower details in order
to obtain this information. The MIN should appear on the recorded mortgage or on
the recorded assignment to MERS. The servicing agent may provide the identity of
the noteholder, but it also may not. In addition to serving notice on the noteholder if
its identity is discovered, the tax deed petitioner should also serve the required
notices on MERS. The tax deed petitioner should contact MERS for information on
how to serve notice on MERS. For more information on MERS, visit the Web site
at www.mersinc.org.” Blumenthal, supra § 11.6(l), at 1113-14.
¶ 48 The record further rebuts petitioner’s assertion that by using a MERS mortgage parties
agree not to make their interest in the property known. Not only did the mortgage documents
identify MILA by name, but they identified an interest to be held by MILA’s successors and
assigns. As stated, petitioner did not contact MERS in this instance and as a result, we cannot
say with absolute certainty what information petitioner would have learned had it done so.
Nonetheless, it appears that a reasonable probability exists that MERS would have revealed
the name of the current servicer and/or noteholder. The burden of proving compliance with
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the Code belongs to petitioner and it should not reap the benefit of failing to act where a
diligent party under like circumstances would have.
¶ 49 We reject petitioner’s argument that Indy Federal, OneWest’s predecessor, would not be
entitled to notice because it was the servicer. The Code requires only that a party have an
“interest” in the subject property to be entitled to notice. 35 ILCS 200/22-10 (West 2008).
As petitioner acknowledges in its reply brief, Indy Federal “had, at one point or another, an
interest in the subject property by virtue of two recorded mortgages recorded as an
encumbrance against the subject property.” Petitioner does not dispute that Indy Federal’s
role as a servicer was to preserve Deutsche’s interest in the property and pay property taxes.
In addition, petitioner concedes that Indy Federal “has all the rights, responsibilities and
duties as that of the true holder of the note, Deutsche Bank, including the right to redeem.”
Thus, Indy Federal clearly had an interest in the property. If petitioner would have learned
of Indy Federal’s existence by calling MERS, we do not believe petitioner could disavow
such knowledge merely because Indy Federal’s interest was not of record. Accordingly, we
add to the IICLE’s guidance that where the servicer’s identity is discovered, the servicer will
ordinarily be entitled to notice.
¶ 50 Relying on section 22-15, petitioner further contends that serving notice to MERS, which
is akin to a trustee, constitutes service on the noteholder, i.e., the beneficiary. See 35 ILCS
200/22-15 (West 2008) (“[w]hen a party interested in the property is a trustee, notice served
upon the trustee shall be deemed to have been served upon any beneficiary or note holder
thereunder unless the holder of the note is disclosed of record” (emphasis added)). The
reason for this trustee provision of section 22-15 is that the beneficiary is not usually
discoverable of record upon a diligent search. See Gacki, 282 Ill. App. 3d at 964.
Notwithstanding the aforementioned sound advice provided by the IICLE publication, we
question its characterization of MERS as a “trustee.” See Mortgage Electronic Registration
Systems, Inc. v. Estrella, 390 F.3d 522, 525 (7th Cir. 2004) (“[A]s far as we can see MERS
is not a trustee. It is a nominee only, holding title to the mortgage but not the note.”). We also
find the purpose of this statutory provision would not be fulfilled if applied to MERS
mortgages because it appears that a reasonable probability exists that the noteholder would
be discoverable through contacting MERS with the information contained in the record.
Assuming MERS is properly characterized as a trustee, here, the original noteholder, MILA,
was disclosed of record and, thus, this provision of section 22-15 does not apply. Assuming
further still that notice to MERS constituted notice to Deutsche the ultimate noteholder, it
did not constitute notice to Indy Federal. Petitioner was not excused from its obligation to
make a diligent inquiry and effort to find and serve all interested parties, including Indy
Federal, merely because MERS forwarded the notice received to Indy Federal. See Gacki,
282 Ill. App. 3d at 965 (a party’s actual knowledge of proceedings does not obviate a tax
petitioner’s obligation to attempt personal service).
¶ 51 We agree with the trial court’s finding that the best way to receive notice is to record the
document from which one’s interest was obtained. As stated, however, a petitioner must
make a diligent inquiry and effort to notify parties whose interest may reasonably be inferred
from the public record. See In re Application of the County Treasurer, 347 Ill. App. 3d at
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771-72, 778-79 (where an interest belonging to the property owner’s spouse could be inferred
from a properly recorded instrument, it constituted a recorded interest within the meaning
of section 22-45). Where, as here, an experienced attorney, who was familiar with MERS
mortgages, conducted the inquiry on petitioner’s behalf and had reason to infer from both
recorded documents as well as experience that MILA’s interest was reasonably likely to have
been conveyed to a successor with an interest in the property but did not utilize the contact
information provided in the recorded documents to obtain further information, the trial
court’s finding that petitioner acted with due diligence is against the manifest weight of the
evidence.
¶ 52 Finally, although neither Indy Federal, OneWest nor Deutsche is an entity related to
MILA and it was revealed after the notice-serving period that MILA had no interest in the
subject property, we question whether a petitioner intent on serving notice to MILA, which
petitioner initially believed was an interested party, would accept defeat following the
nominal steps taken here. Glickman concluded that once MILA withdrew its foreign
registration in Illinois, petitioner no longer had an obligation to serve MILA with notice, a
conclusion for which neither Glickman nor petitioner has provided legal authority. We note,
however, that section 22-15 of the Code States that if a “party interested, upon diligent
inquiry and effort cannot be found or served with notice in the county, then the person
making the service shall cause a copy of the notice to be sent by registered or certified mail,
return receipt requested, to that party at his or her residence, if ascertainable.” (Emphasis
added.) 35 ILCS 200/22-15 (West 2008). We find it curious that despite Glickman’s
determination that MILA’s lack of registration in Illinois eliminated its interest, Glickman
decided to gratuitously serve MILA. It is also perplexing that having mailed notice to MILA,
Glickman did not check the court file to see if the notice was received. We cannot agree that
a diligent petitioner having information that MILA had withdrawn its Illinois registration,
that MILA had not received the mailed notice and that MILA had a forwarding address
would do nothing further, despite having approximately two months left in which to serve
notice. Compare Banco Popular, 335 Ill. App. 3d at 212 (a diligent inquiry is that inquiry
which a diligent person who is intent on discovering a fact would reasonably make), with In
re Application of the County Collector, 225 Ill. 2d 208, 223-25 (2007) (citing Jones v.
Flowers, 547 U.S. 220, 227-36 (2006) (as a matter of due process, upon learning that the
owner had not received notice, the State should have taken further reasonable steps to notify
owner, but an open-ended search such as examining a telephone book was not required)).
Notwithstanding petitioner’s conduct in regard to MILA, petitioner failed to act with due
diligence.
¶ 53 Having determined that petitioner failed to comply with section 22-5 and failed to
demonstrate that it had exercised due diligence in serving the notice set forth in section 22-
10, we find the trial court properly denied petitioner’s application and petition for a tax deed.
¶ 54 For the foregoing reasons, we affirm the judgment.
¶ 55 Affirmed.
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