Mary Lowe, now deceased, was a mentally ill and hospitalized homeowner whose house was sold to a tax scavenger at a tax sale for $110.65 in unpaid taxes, plus fees and other expenses. That tax scavenger failed to provide Ms. Lowe with constitutionally sufficient notice before obtaining a deed to Lowe's home through judicial action, according to a brief recently filed by Jenner & Block in the Supreme Court of Illinois.
According to the Firm's brief, Apex Tax Investments, Inc. was required by the Fourteenth Amendment to undertake additional efforts in trying to locate Ms. Lowe before gaining title to her home, after its mailed notice was returned as "undelivered," and with the notation "person is hospitalized."
The case is on remand from the U.S. Supreme Court, which earlier this year summarily vacated and remanded the Illinois Supreme Court's previous decision upholding Apex's acquisition of the title to Mary Lowe's home, which the Court did in response to a Jenner & Block petition for a writ of certiorari. The High Court ordered the Illinois Supreme Court to review the case in light of the Court's decision in Jones v. Flowers, in which the Justices held that further inquiry was required when a notice is returned unclaimed.
The Firm in its brief argued that Jones and Ms. Lowe's case are factually similar, with one significant difference: In Jones, the letter that was returned bore only the notation "unclaimed." This is "far less than the wealth of information" contained in Ms. Lowe's case, where the envelopes stated that "Person is Hospitalized," along with the mail carrier's initials and identification number, the Firm's brief said.
"Indeed, the notations provided by [the mail carrier] were precisely the sort of information the Jones Court thought to require additional efforts at service, which efforts would have led to locating Ms. Lowe in this case," the Firm argued. In addition, a letter addressed to a co-owner was returned marked "deceased."
Ms. Lowe's legal problems began after her 1991 property taxes went unpaid in the amount of $110.65. Apex then purchased the home at a 1993 tax sale for $347.61, an amount that included the back taxes, interest and other fees. Pursuant to the Illinois statute that authorized the sale, Ms. Lowe, who was hospitalized at the time for mental illness, was entitled to redeem her property by paying those taxes within a certain period of time. The tax purchaser Apex was required to notify Ms. Lowe of this redemption period, either personally or by undertaking a "diligent inquiry" to locate and serve her with notice.
After Apex failed to serve Ms. Lowe personally, notice was sent by certified mail to Ms. Lowe's home, which was then notated by the letter carrier, whose route had included Ms. Lowe's home for a number of years. The undelivered mail was filed with the court overseeing the tax proceeding to give title to Ms. Lowe's home. Apex also sent an agent to the home, where a neighbor told the agent that Ms. Lowe owned the home but was not currently living there. Ms. Lowe, who remained hospitalized at a state mental health facility during this redemption period, never received notice.
"Apex repeatedly and consistently failed to take the next obvious reasonable steps to learn of Ms. Lowe's whereabouts" by failing to follow up on Ms. Lowe's returned mail, failing to ask obvious questions of her neighbor, failing to make inquiry of more than one neighbor and failing to "make any real effort" to gain information from her presumed former lawyers, the Firm argued in its brief.
In a 1996 ex parte proceeding, a circuit court judge issued a tax deed to the company, ruling that Ms. Lowe's redemption time had expired and that the company had exercised due diligence in finding her. The court later appointed the Public Guardian to represent Ms. Lowe's interests. The Public Guardian asserted that Apex had notice of Ms. Lowe's hospitalization by virtue of the letter carrier's notations, and that Apex's failure to look into her whereabouts further constituted a failure to undertake diligent inquiry. Ms. Lowe died in 1998 while her legal proceedings were still pending.
The Circuit Court of Cook County ultimately ruled that Apex had no duty to follow up on the notations. The Illinois Appellate Court affirmed that ruling, as did the Supreme Court of Illinois.
The Jenner & Block team on the case is being led by Partner Barry Sullivan and includes Chairman Jerold S. Solovy and Associates Denise Kirkowski Bowler, Anders C. Wick, and Benjamin M. Vetter. Co-counsel are Cook County Public Guardian Robert F. Harris, Charles Golbert, and Kass Plain.
The case is Estate of Mary Lowe, by Robert F. Harris, Cook County Public Guardian and Supervised Administrator v. Apex Tax Investments, Inc. and John Herndon.