Madison County officials dismissed from distressed property owners' suit

By Ann Maher | Jun 16, 2014


Circuit Judge Dennis Middendorff has dismissed Madison County Board Chairman Alan Dunstan, Circuit Clerk Mark von Nida and former property tax auctioneer Jim Foley from a consolidated lawsuit brought by distressed property owners.

Middendorff, a visiting judge from Clinton County, issued a series of orders following a hearing May 29 on various defense motions to dismiss. He had made previous dismissal rulings before three cases filed last year were consolidated.

Lead plaintiff Scott Bueker and a proposed class of property owners claim they were victimized by a scheme that sent former Madison County Treasurer Fred Bathon and three tax buyers to prison.

Bathon, who pleaded guilty to violating the Sherman Anti-Trust Act, was sentenced to 30 months in prison in December following conviction on rigging property tax sales from 2005 to 2008 in a way that eliminated competitive bidding and increased interest rates for certain tax buyers, in exchange for campaign contributions.

The suit names current and former public officials, as well as persons or entities that purchased delinquent taxes.

Von Nida, who had been named defendant in his capacity as former County Clerk argued that he should be dismissed from the consolidated complaint because Middendorff had already ruled that plaintiffs must be able to allege that he actively participated in the tax buying scheme.

“As this Court has ruled, Plaintiffs simply cannot allege general duties of the County Clerk and then assert that Mr. von Nida has breached some general duty,” wrote attorney Ann Barron of Heyl Royster.

“The allegations set forth in a mere three paragraphs of the consolidated complaint are not sufficient.”

Barron wrote that since plaintiffs failed to state a cause of action as a matter of law, the case against him is improper and should be dismissed.

Plaintiffs also sought to recover a public official bond from Western Surety Co., which covered von Nida in his position as Clerk.

“To the extent that Plaintiffs have not stated a valid cause of action against Mr. von Nida, they certainly cannot state a claim against Western Surety,” Barron wrote.

She also wrote that plaintiffs do not have standing to pursue the bond. The only proper plaintiff on a public official bond is the named oblige, she wrote, which in this case is the State of Illinois.

Middendorff ordered von Nida and Western Surety dismissed with prejudice. He wrote that there is “no just reason to delay the appeal or enforcement of this order pursuant to Illinois Supreme Court Rule 304(a).”

He also dismissed Dunstan from the consolidated complaint with prejudice, issuing the same order regarding appeal or enforcement.

In his order dismissing Foley, he allowed plaintiffs leave to re-plead. Any amended complaint against him is due July 11.

Middendorff, however, denied a motion to dismiss brought by MadisonCounty and Kurt Prenzler in his capacity as Treasurer on two of the counts directed at the County. The County has until July 11 to file a responsive pleading.

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