No. 2-09-1132 Filed: 8-31-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re APPLICATI

ON OF THE COUNTY ) Appeal from the Circuit Court TREASURER AND ex officio COUNTY ) of

Lak e C ou nt y. COLLE CTOR OF LAKE COUNTY, ) IL LI NOI S, for Judg

ment and Order of

Sale ) Against Real Estate Returned Delinquent for ) No. 08--TD--88 Nonpayment of Ge

neral Taxes and Special ) Assessments for the Year 2004 and Prior Years ) ) (Glen Investments, Petitioner-Appellee , ) Honorable v. Julian Mus kat and th e Estate of Sy lvia ) Valerie

Boettle -Ceckow ski, Muskat, Respondents-Appellants). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : Responde nts, Julian Muskat and

the estate of Sylvia Muskat (obje ctors), appeal from an order of the trial court directing the issuance of a ta x deed and granting possession of the subject property to petitione r, Glen Inves tments, a subsequent tax purchaser. Objectors also appeal from the tria l court’s denial of their motionto reconsider. For the reasons set for th below, we reverse and remand. Onappeal, objectors essentially argue that

the trial court

erred in granting the re lief sought by petitioner

because it failed to provide n

otice to a person with an inte

rest in the subject property pursuant to sections 22--10, 22--15, 22--30, and 22--40 of the Property Tax Code (Code) (35 ILCS 200/22--10, 22--15, 2 2--30, 22 --40 (We st 2008)) . In p articula r, objec to rs argue that petitioner "failed to serve a Take Notice upon an heir (Nikki Henkin) of the dec edent who holds title even though her NewYork add

ress was readily availab le in the probate f ile. [Petiti oner] fur ther failed to serve anNo. 2--09--1132

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attorney who had a

ppeare d in the pr

obate ca se on Hen

kin's be half prior to the filing of the petition for a tax deed. Finally, [petitioner] failed to serve a Take Notice on the attorney for the Muskat estate. These failings show the complete lack of a diligent effort to obtain personal or certifi ed mail service upon all pa

rties with an inter est in the subject real estate. The trial court[,] therefore[,] erred in failing to deny r

elief sought by

the petition for tax deed."

I. FACTS The following facts taken from the recor d on appeal are undisputed. Sy lvia Muskat (Sylvia) died on March 8, 1999. A probate case in the nam e of Sy lvia's e state wa s opened

in 2000 (c ase number 00--P--1094, hereinafter the probate c ase). At the time of her death, Sy lvia was the record owner of 916 W. Washington Street, Waukegan, Illinois (the subject property). The probate case file contained Sy lvia's will, which d evised all of her pr operty equally between her two c hildren, Nikki Hen

kin and Julia

n Muskat. T

he file a lso contained an affidavit of heirship showing Nikki and Julian as Sylvia's sole surviving heirs and appointing Julian as executor of Sy lvia's e state. Th e affid

avit of he irship sho wed Nikki 's addr ess as "150 East 77th Street, New Y ork, NY 10021." The file also contained a notice of motion filed Mar ch 1, 2004, and an

orde r dated September 20, 2006, both providing Nikki's New York a ddress. By 2004 the property

taxes for t

he subjec t proper ty had not been paid. After

statutory notice by the Lake County collector, a

judgment and order of sale was enter ed. On December 5, 2005, at
a tax sale held by the c ounty collector, the a ssignor to petitioner purchased the subject prop erty . Shortly thereafte

r, petitioner became the holder of a tax certifica te for the subject property
. About January 4, 2006, th e La

ke County

clerk sent a take notice form to Sy lvia, the assessee of record, via certified mail. On April 17, 2008, the law firm of Levun, Goodman & Cohen, LL

P,No. 2--09--1132

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filed on behalf of Nikki an appearance in the pr obate case. The appearanceconta ins t he law firm's complete address in Northbr

ook, I llinois. OnMay 27, 2008, petitioner filed a petition for a

tax deed, and it filed take notices pursuant to sections 22--10 through 22--25 of the Code (35 I LCS 200/22--10 through 22--25 (West 2008)), to be served by

the clerk of the circuit court of L ake County an d the Lake County sheriff. The subject property is a two- story building. The f irst f loor was unoccupied and Julian lived on the second floor. Petitioner directed that the take notices beserved on the following: (1) the esta te of Sylv ia Mu sk at , a t t he su bj ec t p ro pe rt y; ( 2) Ju li an Mu sk at , a t t he su bj ec t p ro pe rt y; (3) Nikki Henkin, also known as Nikki Muska t, at the su

bject p roperty; (4) "Occupant of First Floor," at the subject pr op er ty; and (5) "Occupant of Second Floor" at the subject property . The clerk of the circuit court of Lake County

sent take notices by c ertified mail to all five parties, at the subject property only. The record shows that Julian accepted the certified mail on his own behalf and on behalf of the estate but

failed to pick up the

mail addr essed to t he first f loor occ upant. The mail s ent to Nikk i, address e d to N ikki Henkin, also known as Nikki Muskat, went unclaimed but a second notice addressed to Nikki Henkin was signed for by Julian. OnOctober 21, 2008, the period of redemp tion expired and petitioner filed an application for a t ax de ed fo r t he su bj ec t p ro pe rt y. Parag raph 5 of petitione r's app lication s tated in

releva nt part: "The record owner of the Property is Sylvi a Muskat. I

n Lak e County Probate c ase 00 P 1094, Sylvia Muskat left her prope rty in equal share s to her children, Nikki Henkin and Julian Muskat. I

n this cas e, [petitioner] name d Estate o f Sy lvia Muskat, Nikki Henkin a.k.a. Nikki Mus cat and Jul ian Muskat as interest ed parties." Parag raph 6 of petitione r's app lication s tated in r

elevant part:No. 2--09--1132

-4- "D iligent inquiry was made a s to the identity, address and loca tion of each pe rso n wi th an in te re st in th e P ro pe rt y, and thus entitled to notice of the filing of said Petition and of the fac ts therein contained. Such inquiry encompassed

one or more of the following *** probate records." OnNovember 13, 2008, objectors filed an objec tion to pet itioner's tax deed application. Objectors argue d that pet

itioner f ailed to c omply

with sections 22--10 through 22--25 of the Code,
as mandated by sec

tions 22--40 and 22--30 of the Code and by article IX, section 8, of

the I llinois Constitution
. Sp ecifically, obje ctors alleged that petitioner failed to serve a take notice on Nikki Henkin, as an heir of the decedent who held title, even though Nikki's address was readily availab le inthe file of the probate case. Objectors also alleged that petitioner failed to serve a take notice on Nikki 's attorney and f

ailed to make a diligent effort to obtain personal or c ertified mail service on all parti es with

an in te re st in th e s ub

je ct pr op er ty. Further, objectors alleged that pe titioner filed a falseap plic at io n f

or ta x d ee d, "w hi ch st at ed th at a d il ig en t i nq ui ry w as ma de as to th e i de nt it y, address and l ocation of each person with an interest in the Prop erty when it was not. " Objectors attached to their objection several documents that

were contained in the file of the probate case, including

four documents stating Nikki Henkin's address as "150 East 77th Street, New York, NY 10021" (the affidavit of heirship filed June 26, 2001, the notice of motion filed March 1, 2004, the orde

r dated Se

ptember 20, 2006, a

nd a notic e of motion

on which t

he file stam p cannot be discerned or is no t presen t). Obje ctors also attached to their objection the appearance filed by Levun, Goodman & Cohen, L LP. OnD ecember 12, 2008, petitioner filed its "Response to Objections to Petition For Tax Deed." Petitioner argued that, although Nikki was named a s aninterested party and an attempt wasNo. 2--09--1132

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made to serve her, the Code did not requir e that she be named

or serve d, beca

use: (1) Nikki, as a legatee of Sylvia's e state, did nothave an interest in the subject property; and (2) Sylvia's e state was the only real pa

rty in interest upon which ser vice was required. OnMay 19, 2009, the trial court issued an order deny

ing the objectors' objections. The trial court found, inter ali a , that in its application petitioner proved its right to a tax deed

and that, "while Nikki Henkin wa s an heir of Sy lvia Muska

t, it is the estate that is the interested party in the tax deed matter. Ms. Henkin may or not be a ben eficiar

y of the esta te and serv

ice on the executor of the es tate complied wi th the tax code requirem ents." OnJune 2, 2009, the trial court enter ed an order directing the issuance of a tax deed and granting possession of the subject property to petitioner. OnJune 12, 2009, objectors filed a motion to recon sider ar

guing that the tr

ial cour t erred in its appli catio n of ex isti ng law a nd cit ing In re Application of County Collector , 391 Ill. App. 3d 656 (2009). Attached to the motion were an order from the probate case ( filed June 23, 2001), declaring Julian and Nikki as Sylvia's only heirs, and Sylvia' s will, grantingall of Sylvia's prope rty, including the subject property , to Julian and Nikki, in equal shares. OnJune 29, 200 9, petitioner filed its "M emorandum Response To Motion For Reconsideration," arguing that (1) offer ing new documents and an entirely new theory of

recovery
was beyond the scope

of a motion for reconsideration; and (2) in any event, Nikki did not, as a matter of law, have an ownership interest and, thus, had no independe nt right to service of notice.No. 2--09--1132

1 OnOctober 2, 2009, o bjec tors filed a motion for stay pe nding appeal. Petitioner filed a response asserting that any stay require d objectors to post an appeal bond. Petitioner also advised the trial court that, on Ju ne 11, 2009, Sylvia's estate abandoned all interest in any right to recover the subject property in f

avor of Julian and

had no further interest in any proceedings related to the tax deed recorded as a result of the or der granting the deed. OnOc tober 29, 2009, the trial cou rt gra nted obje ctors'motion for a stay pending appeal, conditioned

upon their posting an appeal bond. Objectors did not post a bond and filed a m otion with this court to waive the bond. This court denied objectors' motion. Objectorsfailed to post a bond.

-6- Objectors filed

a "Reply T o Motion For Reconsideration." On September 29, 2009, the trial court denied ob

jectors' motion to re consider . On Octob er 27, 20 09, objectors file d this timely appeal. 1 II. AN ALYS IS Onappeal, objectors argue that the tria l court erred by

granting petitioner

a tax deed

for and possession of the subject property
. Objectors argue that petitioner violated the code when it failed to serve notice on Nikki, even though her New York address wa s readily ava ilable in the probate file. The first issue in this case is whether petitioner was required to give notice to Nikki pursuant to section 22--10 of the Code. Section 22--10 of the Code requires that a pur chaser give notice of the sale of delinquent taxes and the expiration of the rede mption per

iod to "th e owner s, occup ants, and parties interested

in the property." (Emphasis added.) 35 ILCS 200/22--10 (West 2008).No. 2--09--1132

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The resolution of this appeal requires this court to interpret certain provisions of the Code. Becau se the construction

of a statu te is a matter

of law, o ur revie w is de novo
. In re Application of the County Collector , 391 Ill. App. 3d at 659. Inconstrui ng a sta tute, our principa l objectiv e is to
ascertain and give effect to the intent of the leg islature. Alvarez v. Pappas , 229 Ill. 2d 217, 2 2 8 (2008). Where the

langua ge is cl ear and

unambig uous, the s tatute mus tbe give n its pl ai n, or di na ry, and popularly understood mea ning without resort to further aids of statutory construction. Alvarez , 229 Ill. 2d at 228. Notice provisions pursuant to the Code are to be rigidly enforced. In re Application of the County Collector , 356 Ill. App. 3d 668, 670 (2005). "The court shall insist on strict co mpliance

with Section 22--10 through 22--25" of the Code. 35 I LCS 200/22--40 (West 2008). Whether the notice provided satisfie d all the st

atutory require ments is a question of law, and a reviewing court will not defer to the trial court's determination on the issue. In re Application of the County Collector , 356 Ill. App. 3d at 670-71. Objectors argue that Nikki was an interested party ent itle d to n otice becaus e she wa s Sylvia 's "heir" and she was vested with title because the estate was in probate. Petitioner argues that Nikki
was not aninterested party entitled to notice, because she was merely a " legatee" of Sy lvia's estate. We f ir st note that petitioner's use of the word "leg atee" is inaccurate bec ause "legatee" commonly

refers to "[o]ne who is named in a will to take personal propert y." (Emp hasi s added.) Black's Law Dictionary

908 (7th e d. 1999). Obj ectors' use of the

word "h eir" is a

lso imprec ise because "[t]he word 'heir[]' in its primary meaning designates the

person appointed by la

w to succeed to the estate i n case of intes tacy." Noll v. Garber , 336 Ill. App. 3d 925, 927 (2003). Because NikkiNo. 2--09--1132

2 We recognize that

the right to redeem pursuant to section 21--345 of the Code is different fromthe right to notice of a tax deed proceeding pursuant to section 22--10 of the Code. However, the right to notice of

a tax deed proceeding is broader than the right to redeem. See In re Application of the County Collector , 391 Ill. App. 3d at 661 (not all parties entitled to notice of a petition for tax deed have a right to redee m). -8- was to take real property unde r a will, we will refer

to her as a devise e, a "[a] recipie

nt of prop erty (usu. real property

) by will." B lack's Law

Dictionary 463 (7th e d. 1999). We have found no precise authority as to whether a

devisee of real property

under a will in probate has an interest in the real property sufficient to mandate notice under section 22--10 of the Code. However, it is clear that a devisee has c ertain other rights to the property
. For example, a devisee has a right to redeem. See In re Application of the County Treasurer & ex officio County Collector , 396 Ill. App. 3d 541, 550, 551 (2009). In I n re Application of the County Treasurer , this court held that an heir and trustee of the estate of his dece ased mother had an interest in th e prop erty suffi cient to red eem it . We fu rther expl ained that t he hei r's and/or trust ee's interest could be either legal or equitable to be suff icient to redeem the property. In re Application of the County Trea surer , 396 Ill. App. 3d at 551-52. 2 In this case, Nikki, as a devisee , will inher it the subject property

just as the

heir in In re Application of the County Treasurer
. Thus Nikki , as a devisee, has a right to redeem the subject property. Further, a devise e has rig

hts of own ership. Se e 755 I LCS 5/4 --13 (We st 2008); In re Estate of Stokes , 225 I ll. App. 3d

834, 839 ( 1992). Se ction 4-- 13 of the Pr obate Act of 1975 (Probate Act) provides : "Ever

y will when admitted to probate as provided by this Act is effective to transfer the real and personal estate of the testator bequeathed in that will." 755 ILCS 5/4--13 (West 2008).No. 2--09--1132

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Further, "[o]nce a

dmitted to probate, the will is c onsidere d valid for vesting title to the realty in the devisees." Stokes , 225 Ill. App. 3d at 839. Our supreme court has explained, "[t]his rule is based upon a presumptionthat a de visee wil l accep t a testamentary gift, e special ly

where it is beneficial in character." Tompkins State Bank v. Niles , 127 Ill. 2d 209, 219 (1989). Inadditi on , a pa rt y who has c ertain r ights und er the Cod

e is an inte

rested p arty

entitled t o notice, even whe

re those rights do not include the right to redeem. In re Applicat ion of the County Collector , 391 Ill. App. 3d at 662. In In re Application of the County Collector , the court held that because a subsequent tax-certificate purchaser ha d certain rights under the Code, he was an interes ted party entitled to notice pursua nt to section 22--10. As petit ioner 's tax deed application noted, Sylvia' s will was admitted to probate in 2000 and she devised t

he subjec t proper ty "in equal shares to her children, Nikki Henkin and Julian Muskat." Becau se Nikki had a right to redeem, and was vested with title to half of the subject property , she was one of the "parties interested" in the property a nd she had a right

to notice pursuant to section 22--10 of the Code. Therefore, the trial court er red in f inding th at peti tioner wa s not requ ired to serve notice on Nikki pursuant to section 22--10 of the Code. Petitioner argues that In re Application of the County Collector , 391 I ll. App. 3d at 661, is distingu ishable from thiscase because there the trial court held that a subsequent tax purchaser had
aninterest sufficient

to mandate notice pursuant to section 22--10, whereas, in this case, Nikki was nota subsequent tax purchaser and notice was "outside the scope of the Pr oper ty Tax Co de." We disagree with petitioner. We believ e that In re Application of the County Collector

is relevant and applica ble to this cas e and tha

t petitione

r's dist inc tion is immaterial. In In re Application of the County Collector

the court held that the subsequent tax purchaser had a right to notice because heNo. 2--09--1132

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had certain rights under the Code, although not the right to redeem. In re Applicat ion of the County Collector , 391 I ll. App. 3d at 661. I n th is case, Nikki had greater rights unde r the Code than the party in In re Application of the County Collector ; as a dev

isee, Nik ki had the right to redeem
. See Inre Application of the County Tr easurer , 396 Ill. App. 3d at 551-52. Thus, the fact that Nikki was not a subse quent tax pu

rchase r is irre levant. P etitioner also arg ues that o

bjector s did not as sert in the ir objec tion that N ikki had a n ownersh ip interest in the subj ect prop erty

when the will was a

d mitted to pr

obate. Pe titioner a lso argues that objectors did notcite section 14--13 of the Probate Act or include documents to support that propos iti on until they filed their motion for rec onsideration. Thus, according to petitioner, objectors forfeit

ed this issu

e. Petitioner does n

ot specif y th e docume

nts to which it objects, but we note that obje ctors att

ached a n order f rom th e probat e case, which declared Julian and Nikki as Sylv ia's onl y " heirs," and Sy

lvia's w ill, which stated tha

t she gr anted al l of

he r p ro pe rt y, including the subject property , equally to Nikki and Julian. It is irrele vant whe ther obje ctors cit

ed secti on 4--13 o f the Prob ate Act i n their ob je ction
. Objectors sufficiently alleg ed that Nikki wa s entitled to notice under the Code and that petitioner failed to provide it. Objectors stated that, in its application for tax deed, petitioner asserted that Sylvia's estate was in probate and that she "left her property in equa

l shares to her children, Nikki Henkin and Julian Muskat." Objectors then alleged that petitioner failed to properly ser ve Nikki pursuant to sections 22--10, 22--15, and 22--40 of the Code. The objection cited, inter ali a , section 22--10, which requires service to " owners , occ upant s, and parties interested in the property." (Emphases added.) 35 ILCS 200/22--10 (West 2008). Further, the doc uments objectors attached to their motion for reconsideration contained information that was contained in pe titioner ' sNo. 2--09--1132

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applicationfor tax deed. Thus, the issue was fully before the trial court

before objectors filed

their motion to reconsider. Petitioner argues that

section 4--13 of the Probate Act does not establish that Nikki has an interest in the sub

ject pr operty, bec ause objectors did not assert that Nikki accepted title to the subject property " when the estate was opened or at any time ther eafter ." Petitioner cite s Tompkins State Bank

for the proposition that " [t]h e transfer of property by devise re quires not only an affirmative act by the testator, but also t he assent of t he devisee." Tompkins State Bank , 127 Ill. 2d at 219. However, petitioner takes this statement out of context. After the quoted statement, the court explained: "If a devise e refus es to acc ept the pr operty devised t o him, ther

e is nota completed gift, but only an at tempt . [Cita

tion. ] Although acceptance may be presumed in the absence of an expressed intent to the contrary , a devise e is under no duty to acce pt a gif t, and title t

hereto may not be vested in the devisee against his w ill." (Emphasis added.) Tompkins State Bank , 127 Ill. 2d at 219. Thus, objectors were not

re qu ir ed to as se rt th at Ni kk i a cc ep te d t it le to th e s ub je ct pr op er ty, because acceptance is presumed

and there is nothing in the record to establish that she expressed an intent to refuse acceptance. Th us, petitioner 's argument that section 4--13 of the Proba te Act does not establish that Nikki had an interest in the subject property fails. Petiti one r argues that Nikki was not entitled to notice because the e state abandoned any interest in the subject property a

nd the only party

interested

in the property wa s the estate. Petitioner ignores that "[a]dministrators of estates take no title or interest in the real estate of a decedent "; rather, title vests in the devisees when t he wil l is ad mitt ed to p robat e, sub ject o nly to th e exec utor'sNo. 2--09--1132

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right to sell the real estate to satisfy the debts of

the estate. Stokes , 225 I ll. App. 3d at 840. Th

us, the executor had limited powers and could not exting

uish Nikki' s owners hip intere st in the subject property by

abandoning the estate's interest in the prope rty. Peti tioner also arg ues that o bjector s make two

conflic ting ar

guments : (1) Nikk

i was not a legal titleholder of

the subject property

but retained

certain rights r elative t o it; and (2 ) the minut

e Sylvia's will was admitted to probate, title to the subject property transferred to Nikki and

she was
a joint owner in

the subje ct prope

rty . Howeve

r, petitioner cite s no author ity for the im

permissib ility of arguing in the alternative. Further, p etiti oner does not contend that the elements of judicial estoppel are pre sent. See, e.g. , Grobe v. Hollywood Casino-Aurora , Inc. , 325 Ill. App. 3d 710, 720 (2001). Thus, petitioner's argument has no mer it. Next, obje ctors argu e that petitioner violated the code when it failed to serve Nikki at her NewYork address or

through her attorney

of record in the probate case, eve n though both addresses
were in the probate record and thus were ea sily ascertaina ble prior to the filing of the tax dee d petition. Section 22--15 of

the Code provides t

hat notic e shall be

served on "owne

rs a nd partie s interested in the pro

perty " found i

n the coun

ty, or: "If any owner

or party intere sted, upon diligent inquiry and e ffort 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 reg

istered or certified mail, return rece iptrequested, to that party at his
or her residence, if asce

rtainab le ." (Emphases add ed.) 35 I LCS 200/22--15 (West 2008). It is uncontroverted that petitioner twice at tempted to serve Nikki at the subject property . The certified mail addressed to Nikki Henkin, also known as Nikki Muskat, went unclaimed and a second notice sent to Nikki Henkin was signed for by Julian. Nikki's

residence, as shown in the probate caseNo. 2--09--1132

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file, was i n New York . We note that, in its application for a tax deed, petitioner represented to the trial cour t that it searched the probate case file for all interested parties, including Nikki, and that "[d]iligent

inquiry wasmade as to the *** address and location of each person of a n interest in the Property ***. *** Such inquiry encompassed one or more of the following *** probate rec ords." However, it is uncontroverted that the probate records, available pr ior to the filing of petitioner's tax deed petition, contained Nikki's New York address in at leas t three se

parate document s. Thus, Nikki could no t b e " fo un d o r s er ve d w it h n ot ic e i n t he co un ty" and petit ioner fa iled to ser ve notice to Nikki at her residence in New York, eve n though the address was "asce rtainable." Therefore, petitioner failed to comply with section 22-- 15 of the Code. Petitioner states that there is no allegation in the objection that the estate or Nikki had the funds necessary

to redeem the subject property or that Nikki would have contributed funds necessary to redeem. However, petitioner cites no authority , and we cannot find any , to support the proposition that a party with an intere st in aproperty must establish that it is ready , willing, and able to redeem the property, be fore it is entitled to notice of a tax deed proceeding. Thus, this arg ument fails. Inconclusion, Nikki was an interested party

entitled to notice pursuant to section 22--10 of the Code. Petitioner failed to provide her with notice pursuant to section 22--15 of the Cod e. Thus, the trial cou

rt erre d in findin

g that N ikki was no t an in ter ested party e

ntitled to notice and that petitioner proved it s right to

a tax deed . Accor

dingly , the tria l court e rred by granti n g pe titi oner's application for a tax deed and granting pe titioner possession of the subject property
. For these reasons, the judgment of the circuit court of Lake

County is reversed, and the c ause is remanded. Reversed and remanded. ZENOFF, P.J., and HUDSON, J., concur.