State: Illinois
Court: 2nd District Appellate
Docket No: 2-97-0979
Case Date: 07/09/1998
No. 2--97--0979
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
In re APPLICATION OF THE ) Appeal from the Circuit Court
KANE COUNTY COLLECTOR, for ) of Kane County.
Judgment and Order of Sale )
Against Lands and Lots Returned )
Delinquent for Nonpayment of ) No. 96--TX--69
Taxes for the Year 1992 )
and Prior Years )
)
(Dean L. Johnson, Petitioner- ) Honorable
Appellant, v. The County of ) Melvin E. Dunn,
Kane, Respondent-Appellee). ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:
Petitioner, Dean Johnson, appeals the judgment in favor of
respondent, The County of Kane (County), denying petitioner's
request for the recovery of the purchase price paid during an
unsuccessful attempt to secure a tax deed. Petitioner alleges that
the trial court erred in concluding that he failed to make a bona
fide attempt to comply with the statutory provisions governing the
service of notice to the property owners.
At a tax sale in November 1993, petitioner purchased
certificate No. 93--1664 for $7,793.63. The final redemption date
was October 31, 1996. To obtain a tax deed for the property,
petitioner had to (1) search the county records to determine the
identity of all interested parties; (2) physically examine the
property to determine the identity of any occupants; (3) prepare and
file the petition for a tax deed; (4) prepare and deliver to the
circuit clerk a take notice form for the clerk to mail to all
interested parties; (5) prepare and deliver the take notice form to
the county sheriff to be served on all interested parties; and (6)
prepare and deliver a notice to be published in the appropriate
newspaper. 35 ILCS 200/22--10 through 30 (West 1996); In re
Application of the County Collector, 220 Ill. App. 3d 933, 938
(1991). Petitioner had to perform these activities no more than
five months nor less than three months before the redemption period
expired. 35 ILCS 200/22--10 through 30 (West 1996); In re
Application of the County Collector, 220 Ill. App. 3d at 938-39.
Thus, petitioner had from May 31 to July 31 to complete these
activities.
Here, petitioner complied with all these requirements during
the applicable time limits. He was unable to obtain a tax deed,
however, because the sheriff's department did not mail the notices
until August 14, which was less than three months before the
redemption period expired. See In re Application of the County
Treasurer, 213 Ill. App. 3d 535, 542 (1991).
Since petitioner could not obtain a tax deed, he filed a
petition pursuant to section 22--50 of the Property Tax Code (35
ILCS 200/22--50 (West 1996)). Section 22--50 provides:
"If the court refuses to enter an order directing the
county clerk to execute and deliver the tax deed, because of
the failure of the purchaser to fulfill any of the above
provisions, and if the purchaser *** has made a bona fide
attempt to comply with the statutory requirements for the
issuance of the tax deed, it shall order the return of the
purchase price forthwith, as in case of sales in error, except
that no interest shall be paid on the purchase price." 35
ILCS 200/22--50 (West 1996).
Petitioner delivered the notices to the sheriff's department
on July 11, 20 days before they had to be mailed. He argued that
providing the sheriff with 20 out of the possible 60 days gave the
sheriff sufficient time to mail the notices and demonstrated that
he had made a bona fide attempt to comply with the notice
requirements. The trial court disagreed and entered judgment in
favor of the County. In so doing, the court specifically found that
petitioner should have completed his research and preparation within
10 to 20 days and should have given the sheriff's department 40 to
50 days to mail the notices. The court further found that, if
petitioner gave the sheriff's department fewer than 40 to 50 days,
petitioner should have informed the sheriff's department that the
notices had to be mailed by a certain date. Subsequently,
petitioner filed a timely notice of appeal.
We first address the proper standard of review to apply.
Petitioner contends that the issue on appeal involves the
construction of a statute and that we must review the trial court's
judgment de novo. The County does not contest this assertion.
After reviewing the briefs and the record, however, we have
concluded that we cannot review the court's judgment de novo. The
trial court was not required to interpret the statute; instead, the
court was required to determine whether petitioner made a bona fide
attempt to comply with the statutory requirements. This is clearly
a factual determination. Thus, we must affirm the trial court's
judgment unless it is against the manifest weight of the evidence.
Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). A judgment is
against the manifest weight of the evidence if the opposite
conclusion is apparent or if the findings appear unreasonable,
arbitrary, or not based on the evidence. Bazydlo, 164 Ill. 2d at
215.
Before addressing petitioner's argument, we must first address
the County's argument that petitioner is not entitled to recover his
money because the sale was not a sale in error as defined by section
21--310 of the Property Tax Code (35 ILCS 200/21--310 (West 1996)).
We agree with the County that section 21--310 will not grant
petitioner the relief he seeks. We fail to see, however, how this
fact is relevant. Petitioner does not and has not sought to recover
pursuant to section 21--310. Instead, petitioner seeks to recover
pursuant to section 22--50.
Section 22--50 provides a specific statutory remedy for a party
who is unable to obtain a tax deed after the party attempted to but
did not comply with the statutory notice requirements. This is
petitioner's situation. Thus, as long as he complies with the other
requirements of section 22--50, he is entitled to the remedy
provided by section 22--50, regardless of whether he is entitled to
the remedy provided by section 21--310.
We turn now to the question of whether the trial court erred
in concluding that petitioner did not make a bona fide attempt to
comply with the statutory notice requirements. A bona fide attempt
is one made "[i]n or with good faith; honestly, openly, and
sincerely; without deceit or fraud." Black's Law Dictionary 177
(6th ed. 1990). It is "[r]eal, actual, genuine, and not feigned."
Black's Law Dictionary 177 (6th ed. 1990).
Here, petitioner delivered to the sheriff's department the
notices for this property and 12 to 14 others. At that time, the
sheriff's department had 20 days to mail the notices. Petitioner
has delivered "several hundred" notices to the sheriff's department
for service, and, in his experience, 20 days has been sufficient
time for the sheriff's department to send notices by certified mail.
Further, Caroline Bjornson, the person who processes the notices for
the sheriff's department, testified that normally she processes the
notices 1 to 1
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