FIFTH DIVISION
March 16, 2001

1-99-2879

JUSTICE THEIS delivered the opinion of the court:

Petitioner Ralph Prince's property was sold at a tax sale after he failed totimely redeem it. The trial court denied his petition for equitable relief underthe indemnity provision of the Property Tax Code (the Code) (35 ILCS 200/21-305(West 1998)) and denied his motion for reconsideration. Petitioner contends onappeal that the trial court applied an incorrect standard in denying him relieffrom the indemnity fund, that the trial court's findings were unsupported by theevidence and, therefore, its decision was an abuse of discretion, and that thetrial court erred in preventing him from testifying to a central issue in hiscase.

On January 3, 1978, petitioner entered into articles of agreement (1978Agreement) with William Berke for the purchase of a home located at 3314 WestPolk Street in Chicago. The one-page 1978 Agreement provided that petitioner wasto pay $375 per month, which was to include principal and interest at a rate of15% and one-twelfh of the annual real estate tax and insurance premium. From1978 until some point prior to 1990, petitioner made his monthly payments toCommercial Management Company (CMC). Petitioner subsequently defaulted under theterms of the 1978 Agreement and, on March 1, 1990, entered into supercedingarticles of agreement (1990 Agreement) with Berke for the purchase of the home.Under the terms of the 1990 Agreement, petitioner was to continue to pay $375per month, which now included principal and interest at a rate of 10%. However,unlike the previous agreement, the 1990 Agreement did not include any escrowpayments for real estate taxes and insurance. The new agreement provided thatpetitioner was responsible for the real estate taxes and insurance. Thatprovision was emphasized with capital letters.

The 1990 and subsequent years' taxes went unpaid. On July 24, 1992, theunpaid taxes were sold by the Cook County treasurer at a forfeiture sale to MSGroup. According to the subsequent tax deed proceedings, the trial court tookjudicial notice that on August 26, 1992, a property tax notice was mailed by theCook County clerk to petitioner, providing him with notice of the sale of hisproperty for nonpayment of the real estate taxes and a date by which he couldredeem it from the tax buyer. It also found that on September 7, 1994,petitioner signed a certified mail notice again advising him that his propertywas in jeopardy for nonpayment of real estate taxes and provided a date by whichhe could redeem. Additionally, the sheriff of Cook County personally servednotice on petitioner that same day. He was advised of the potential loss of hisproperty and provided with the date by which he could redeem the property.Petitioner failed to redeem the property before the expiration of the redemptionperiod and, on March 23, 1995, MS Group was issued a tax deed conveying theproperty to it.

Thereafter, on June 24, 1998, petitioner filed a petition for indemnity,alleging that he was equitably entitled to an award against the indemnity fund.At trial, petitioner testified that he was 72 years old and had many physicaldisabilities. He was blind in one eye and partially blind in the other eye,suffered from a heart attack, high blood pressure, diabetes, a pinched nerve andsclerosis of the liver. In 1996, subsequent to the issuance of the tax deed, hisright leg was amputated below the knee. Because of his health problems, hestated that he stopped working in 1983. Prior to that, he had worked in severalodd jobs and had served in the military. After 1983, his sole source of monthlyincome was through the Veteran's Administration and Social Security in theamount of about $876. Additionally, he stated that he had seven children rangingfrom "50 down." He received monetary assistance from them wheneverthey were able to help him. Petitioner had no formal education beyond the fifthgrade.

Petitioner testified that he did not recall being served with a notice thathis property was in jeopardy due to unpaid taxes and did not receive any noticesconcerning the tax sale of his home. However he acknowledged that men wouldsometimes come to his house "dressed up" and knock on the door. Herefused to open the door because his children told him not to let anyone inunless they were present. He also testified that he would wait for his childrento open his mail and read it to him, which they rarely did. If they did not comeby, the mail would just be "laying [sic] there." Sometimes hewould misplace it.

Petitioner further acknowledged that the 1990 Agreement was a refinancing ofthe 1978 Agreement and that the second agreement provided that he wasresponsible for payment of the real estate taxes. However, he stated that he wastold by someone from CMC to continue to pay the taxes to it. He produced variousreceipts for money orders for the years 1991 through 1994 in amounts rangingfrom $20 to $375 made out to CMC. Although his testimony was uncertain withregard to whether those payments were for the principal and interest or fortaxes, he claimed that one of the receipts for $317 in 1991 was a tax payment.There was no other evidence presented to corroborate that fact. Petitioner hadpreviously owned only one other property and that property was condemned anddemolished by the City.

The trial court, in rendering its decision, framed the issue as "whether[petitioner] purposefully neglected or took on a cavalier attitude toward hisresponsibility of paying his real estate taxes, once he no longer had thecompelling requirement of contributing into an escrow account of the mortgagee,and thereby substantially contributed to the loss he sustained." Despitehis physical disabilities, the trial court found petitioner's testimony, that hedid not fully understand his responsibilities regarding payment of taxes, thathe had no notice of the tax sale or redemption process, and could not read orunderstand any notices, lacked credibility. Accordingly, the trial court heldthat petitioner was not equitably entitled to indemnity under the Code. 35 ILCS200/21-305 (West 1998).

Petitioner contends that, in framing the issue, the trial court erroneouslyapplied a "without fault or negligence" standard in determining hiseligibility under the statute, rather than the correct equitable entitlementstandard. While we note that in his motion for reconsideration petitionerspecifically stated that the court "properly" set forth the issuebefore the court, we address the question on the merits. Section 21-305 of theCode provides in pertinent part:

"(a) Any owner of property sold under any provision of this Code, who without fault or negligence of his or her own sustains loss or damage by reason of the issuance of a tax deed under Sections 22-40 or 21-445 and who is barred or in any way precluded from bringing an action for the recovery of the property or any owner of property containing 4 or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained." (Emphasis added.) 35 ILCS 200/21-305 (West 1998).

Thus, this section allows certain property owners whose property was sold fornonpayment of taxes to be compensated for their loss, even though the sale tookplace as a result of their own fault or negligence, if the court finds that theyare nevertheless equitably entitled to that compensation. In re Applicationof Cook County Collector, 174 Ill. App. 3d 981, 984, 529 N.E.2d 570, 572(1988) (Walker).

Because petitioner falls within the category of "owner of propertycontaining 4 or less dwelling units," we must therefore consider whetherthe trial court correctly applied an equitable entitlement standard in denyinghis petition. In determining the rights of a petitioner under the equitableentitlement standard, the court must examine all of the relevant factors and thetotality of the circumstances without regard to fault (Kirk v. Rosewell,225 Ill. App. 3d 326, 330, 587 N.E.2d 1214, 1216 (1992)).

Some relevant factors that have been considered include a mental, physical,or financial inability to pay or redeem the taxes; the level of sophisticationand knowledge of the redemption process; and diligence toward fiscalresponsibility. In re Application of Kane County Collector, 135 Ill. App.3d 796, 808, 482 N.E.2d 161, 169 (1985) (Tharp); Walker, 174 Ill.App. 3d at 987, 529 N.E.2d at 574; Kirk, 225 Ill. App. 3d at 330, 587N.E.2d at 1216. Additionally, as in any proceeding before a trier of fact, thecredibility of the petitioner is also at issue. See In re Application of theCounty Collector, 295 Ill. App. 3d 711, 716, 692 N.E.2d 1290, 1293 (1998)(court not obligated to award indemnity where petitioner's testimony isincredible). Each case must be decided on its own facts (Kirk, 225 Ill.App. 3d at 330, 587 N.E.2d at 1216), and the court has broad discretion inmaking its determination (Walker, 174 Ill. App. 3d at 987, 529 N.E.2d at574).

Applying these principles to the present case, we find the trial courtcorrectly focused on an equitable entitlement standard in rendering itsjudgment. While we agree with petitioner that considering whether he"contributed to the loss he sustained" would be an inquiry into thefault of petitioner, we find no error. The court went on to examine the totalityof the circumstances and considered relevant factors, including petitioner'smental, physical and financial status, his sophistication and comprehension ofhis responsibilities, and his diligence with regard to those responsibilities,despite his failure to pay the taxes. The court ultimately concluded thatpetitioner's testimony lacked credibility. Thus, we find that the trial courtapplied the correct standard in rendering its decision.

Petitioner next contends that the trial court abused its discretion indenying him indemnity because the court's findings of fact were unsupported bythe record. As stated previously, a trial court has broad discretion indetermining whether a petitioner is entitled to compensation, and itsconclusions will not be disturbed on review absent an abuse of that discretion. Tharp,135 Ill. App. 3d at 805-06, 482 N.E.2d at 167. An abuse of discretion has beendefined as action that is arbitrary, fanciful or unreasonable. Discretion isabused "only where no reasonable man would take the view adopted by thetrial court." Tharp, 135 Ill. App. 3d at 806, 482 N.E.2d at 167.

Petitioner essentially argues that he was equitably entitled to reliefbecause of the uncontroverted testimony that he paid his taxes to CMC, does notremember getting served with a notice that his property was in jeopardy, andthat, even if served, he could not read it or understand it due to his lack offormal education and physical health problems. However, we find that the trialcourt's finding that petitioner's testimony lacked credibility was sufficientlysupported by the record. Petitioner knew and acknowledged that he wasresponsible for paying his taxes. While he testified that he misunderstood hisresponsibility, he failed to produce any probative evidence to support hiscontention that he was mistakenly told to pay taxes to CMC after entering intothe 1990 Agreement. There was no evidence to corroborate petitioner's testimonyregarding the one receipt for $317.

Furthermore, contrary to his testimony that he did not receive notice of thesale of his property, the evidence established that petitioner was sent noticeof the tax sale in August 1992 and was informed of the date by which he couldredeem his property. Additionally, he signed for the certified mail and wasserved by the sheriff in September 1994, again being advised regarding hisability to redeem the property.

While petitioner testified that, even if he received the notice, he could nothave read it or understood it, the court found this testimony to be incredible.While the court expressed sympathy for petitioner's poor health, it did notconsider his health disabling to the degree of rendering him unable to handlehis affairs. Although petitioner had no formal education, the court found thathis life experience provided him with sufficient "street smarts" tounderstand his responsibilities. It is not the function of this court to reweighthe evidence or substitute our judgment for that of the trier of fact. Howardv. Zack Co., 264 Ill. App. 3d 1012, 1025, 637 N.E.2d 1183, 1193 (1994).

We find that the trial court's finding that petitioner lacked diligencetoward his responsibility to pay the taxes and redeem his property is supportedby the record. Petitioner testified that, even if he did receive notices, hewould wait for one of his seven children to assist him. He failed to seek theirassistance with his affairs, although fully aware that his mail would layunopened for long periods of time and fully aware that he would often misplacehis mail. We have previously held that this type of behavior frustrates thepurpose and intent of the statute because it amounts to "tacit approval ofconduct which at the least could be described as *** fiscallyirresponsible." Tharp, 135 Ill. App. 3d at 810, 482 N.E.2d at 170.As the trial court noted, the indemnity fund is not a charitable giveaway.Accordingly, the trial court's denial of compensation was supported by therecord and was not an abuse of discretion.

Finally, petitioner argues that the trial court erred in not allowing him totestify as to what he would have done if he had received the notice of the taxsale, a central issue to his cause of action. Petitioner's failure to raise anobjection to the ruling at trial or in his motion for reconsideration results inwaiver of the right to raise this issue on appeal. Limanowski v. Ashland OilCo., 275 Ill. App. 3d 115, 118, 655 N.E.2d 1049, 1051 (1995). Furthermore,petitioner indeed testified that, if he had received any notices, he could nothave read or understood them, which the court found unbelievable. Therefore, wefind no error.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

QUINN, P.J., and GREIMAN, J., concur.