12-2900H

FIRST INSERTION
AMENDED NOTICE OF HEARING PRIOR TO FORECLOSURE SALE
IN THE GENERAL COURT
OF JUSTICE
SUPERIOR COURT DIVISION
BEFORE THE CLERK
12 SP 2698
TO: DONALD E. PHILLIPS
NOTICE OF SERVICE OF PROCESS BY PUBLICATION (N.C.G.S.§1A-1, Rule 4(j1)
STATE OF NORTH CAROLINA COUNTY OF WAKE
IN THE MATTER OF:
The Foreclosure of a Deed
of Trust executed by
DONALD E. PHILLIPS as
Manager of APEX ROAD, LLC,
to Walter G. Rogers, Trustee,
recorded in Book 13124, at Page 1600, Wake County Registry.
Take notice that the above captioned Special Proceeding has been filed in this matter on June 11, 2012. The nature of the relief sought is the undersigned, as Substitute Trustee, seeks an Order allowing foreclosure of the above referenced Deed of Trust. As a guarantor of the obligation secured by the deed of trust, you are entitled to notice of hearing pursuant to N.C.G.S.§45-21.16(b)(2). The hearing is scheduled for August 23, 2012 at 2:00 p.m., which is more than twenty (20) days after the last publication of this notice and may be continued by the clerk with written notice to your last known mailing address and without further notice by publication.
TO:
APEX ROAD, LLC c/o Donald E. Phillips, Registered
3605 Glenwood Avenue, Suite 480 Raleigh, NC 27612
Donald E. Phillips, Guarantor
142 W. Platt Street
Tampa, FL 33606
APEX ROAD COMMERCIAL, LLC
c/o William H. Weatherspoon, Jr.,
Registered Agent
3605 Glenwood Avenue, Suite 480
Raleigh, NC 27612
YOU ARE HEREBY NOTIFIED that the Clerk of Superior Court of Wake County, North Carolina, shall conduct a hearing pursuant to North Carolina General Statute 45 21.16 with respect to the foreclosure of certain real property as hereinafter set forth.
The hearing shall be conducted at the office of the Clerk of Superior Court in the Wake County Courthouse in Raleigh, North Carolina on August 23, 2012 at 2:00 p.m., or at such other time as the Clerk may determine, without further notice to the Debtor or Guarantors.
1. The real estate security interest being foreclosed is a Deed of Trust from Apex Road, LLC (the “Debtor”) to Walter G. Rogers, dated June 2, 2008 securing an indebtedness in the maximum principal sum of $845,000.00 being recorded on June 3, 2008 at 11:09 a.m. in Book 13124, Page 1600, Wake County Registry. Pursuant to the provisions of the Deed of Trust, James F. Jordan has been substituted as trustee. See Substitution of Trustee recorded in Book 14748, Page 1363, Wake County Registry.
2. The real property sought to be foreclosed is a lot in Wake County, North Carolina, which is described as follows:
Lying and being located in Cary Township, Wake County, North Carolina, and being described as follows:
BEGINNING at an iron pipe found in the northern right-of-way line of West Chatham Street at a common corner with the western line of the CSX Railroad 100 foot right-of-way; runs thence along the northern right-of-way line of West Chatham Street South 87° 09' 51” West 105.48 to an iron rebar found; thence continuing along the northern right-of-way line of West Chatham Street along a curve to the right with a radius of 809.33 feet and having a bearing of North 88° 07' 28” West an arc length of 133.10 feet to an iron rebar found; thence continuing along the northern right-of-way line of West Chatham Street North 83° 24' 46” West 163.22 feet to an iron pipe set; runs thence along a curve to the right where the northern right-of-way line of West Chatham Street curves into the eastern right-of-way line of Old Apex Road, said curve having a radius of 50.00 feet and having a bearing of North 34° 10' 12 West an arc length of 85.94 feet to an iron pipe found; runs thence along the eastern right-of-way line of Old Apex Road 15° 04' 12” East 212.45 feet to an iron pipe found; thence leaving the eastern right-of-way line of Old Apex Road running South 89° 56' 10” East 509.90 feet to a concrete monument found located in the western line of the CSX Railroad 100 foot right-of-way; runs thence along the western line of the CSX Railroad 100 foot right-of-way South 23° 12' 28” West 309.96 feet to an iron pipe found, being the point and place of BEGINNING, containing 3.133 acres, according to that certain unrecorded survey entitled “ALTA Survey For: PDRH, LLC”, prepared by Frank G. Mundy, PLS, dated September 12, 2007, reference to such unrecorded survey being hereby made for a more particular description of the metes, bounds, courses and distances of such property.
3. The real property described above was deeded to Apex Road Commercial, LLC, by Apex Road, LLC, by deed recorded in Book 13408, Page 2507, Wake County Registry. The underlying obligation was assumed by Apex Road Commercial, LLC by instrument recorded in Book 13408, Page 2511, Wake County Registry. (“Assumption Agreement”) Pursuant to the Assumption Agreement, Apex Road Commercial, LLC has assumed the obligations and Apex Road, LLC is released from personal liability under the Loan Documents. Guarantor remains liable for the obligation.
4. The original note(s) and other documents evidencing the indebtedness and the Deed of Trust were given to North State Bank, as Lender, and are held by North State Bank (the “Holder”) whose address is Post Office Box 18367, Raleigh, NC 27619. These original documents are available for inspection and verification by any affected party, and copies made thereof will be provided upon request to the Bank. Copies of said documents as tendered to the Court will be presumed authentic unless a timely request for inspection and verification is made and an objection to authenticity is made prior to the hearing.
5. The Holder has instructed the Trustee to institute foreclosure proceedings pursuant to the Power of Sale contained in the Deed of Trust because Apex Road Commercial, LLC has defaulted on said obligations, including, but not limited to, paying principal and/or interest as the same has come due and that said default has continued through the date hereof.
6. Holder has accelerated the maturity of the indebtedness, and the entire amount of principal and interest is now due and payable.
7. The Debtor and Apex Road Commercial, LLC have the right, in accordance with North Carolina General Statute 45 21.20, to terminate the Power of Sale being exercised in this foreclosure proceeding if the Debtor or Apex Road Commercial, LLC pay in full, or tender payment in full, the indebtedness secured by the Deed of Trust and the expenses incurred with respect to the sale (including Trustee's compensation) prior to the time fixed for a sale or prior to the expiration of the time for submitting any upset bid after the date of the sale or resale has been held.
8. The holder has confirmed in writing to the undersigned that within the 30 days of the date of this Notice Apex Road, LLC, Apex Road Commercial, LLC and Donald E. Phillips, as guarantor, have been sent by first-class mail at their last known addresses a detailed written statement of the amount of principal, interest and any other fees, expenses, and disbursements that the holder claims in good faith is owed as of the date of the written statement, a daily interest charge based on the contract rate as of the date of the statement, and the amount of other expenses the holder contends it is owed as of the date of the statement.
9. This obligation is a commercial loan, and is not owner-occupied residential property. The loan was originated by, and has been serviced by, North State Bank, the holder. To the best knowledge of holder there have been no requests during the preceding two years for information pursuant to N.C.G.S. §45-93. The underlying mortgage debt is not a subprime loan as defined in N.C.G.S. 45-101(4), 45 day notice pursuant to N.C.G.S. 45-102 is not required nor further notices as set out in N.C.G.S. 45-107. The property is not the requirements of N.C.G.S. §45-21.16C in regard to voluntary resolution.
10. The Debtor and Apex Road Commercial, LLC, have the right to appear before the Clerk of Superior Court of Wake County to show cause as to why this foreclosure should not be allowed to be held. If the Debtor or Apex Road Commercial, LLC do not intend to contest the Holder's allegations of default and its right to foreclose, the Debtor does not have to attend this hearing before the clerk, and the Debtor's failure to do so will not affect any right to pay the indebtedness in full.
11. The Substitute Trustee is a neutral party and, while holding that position in the foreclosure proceedings, will not advocate for the Secured Creditor or for the Debtor in the foreclosure proceedings.
12. The Debtor or Apex Road Commercial, LLC have the right to apply to a judge of the Superior Court pursuant to G.S. 45-21.34 to enjoin the sale, upon any legal or equitable ground that the court may deem sufficient prior to the time that the rights of the parties to the sale or resale becoming fixed, provided that the debtor complies with the requirements of G.S. 45-21.34.
13. The Debtor and Apex Road Commercial, LLC have the right to appear at the hearing and contest the evidence that the clerk is to consider under G.S. 45-21.16(d), and that to authorize the foreclosure the clerk must find the existence of: (i) valid debt of which the party seeking to foreclose is the holder, (ii) default, (iii) right to foreclose under the instrument, and (iv) notice to those entitled to notice.
14. If Debtor and Apex Road Commercial, LLC fail to appear at the hearing, the substitute trustee will ask the clerk for an order to sell the real property being foreclosed.
15. In the event that the order of sale is allowed by the Clerk of Superior Court, the sale shall be held at the courthouse door, Raleigh, Wake County, North Carolina, whereupon the real estate described herein shall be offered for sale at public auction to the highest bidder for cash, such bidder being required to deposit with the Trustee a cash deposit of 5% of the amount of the bid or $750.00, whichever is greater. This sale shall be subject to ad valorem taxes, special assessments and prior liens, if any, which are a lien upon the property.
16. If the foreclosure sale is consummated, the purchaser will be entitled to the possession of the herein described real estate as of the date of the delivery of the Deed, and if the Debtor or Apex Road Commercial, LLC are still in possession, the aforesaid purchaser can have the Debtor or Apex Road Commercial, LLC evicted.
17. Attached hereto and incorporated herein by reference is a copy of the Notice of Trustee's Sale of Real Estate which will be posted and advertised according to the provisions of the above-described Deed of Trust and as by law provided, should the Clerk of Superior Court of Wake County allow the foreclosure to be held.
18. The name, address and telephone number of the Substitute Trustee is as set out below. Debtor and Apex Road Commercial, LLC should keep the trustee or mortgagee notified in writing of their address so that copies of the Notice of Sale setting forth the terms under which the sale will be made, and notices of any postponements or resales, can be mailed to the Debtor and Apex Road Commercial, LLC.
19. In the event that the hearing may be held on a date later than that stated in this Notice, the Debtor and will be notified of any changes in the hearing date.
20. The Debtor and Apex Road Commercial, LLC have the right to seek the advice of an attorney and free legal services may be available to Debtor by contacting Legal Aid of North Carolina or other legal services organizations.
21. That if the debtor, or one of them, is currently on military duty, the foreclosure may be prohibited by G.S.45-21.12A. The undersigned certifies that the hearing will take place at a time that is not during or within 90 days after, a period of military service for the mortgagor, trustor or debtor.
This the 11th day of July, 2012
/s/ James F. Jordan
James F. Jordan, Substitute Trustee
JORDAN LAW OFFICES, P.A.
Post Office Box 1129
Wake Forest, NC 27588-1187
Telephone: 919-847-3740
NOTICE TRUSTEE'S SALE
OF REAL PROPERTY
IN THE GENERAL COURT
OF JUSTICE
SUPERIOR COURT DIVISION
BEFORE THE CLERK
12 SP 2698
STATE OF NORTH CAROLINA COUNTY OF WAKE
IN THE MATTER OF: The Foreclosure of a Deed of Trust executed by DONALD E. PHILLIPS
as Manager of APEX ROAD, LLC,
to Walter G. Rogers, Trustee,
recorded in Book 13124, at Page 1600, Wake County Registry.
Pursuant to a power of sale contained in a Deed of Trust executed by Donald E. Phillips, as Manager of Apex Road, LLC to Walter G. Rogers, Trustee, dated June 2, 2008 and recorded on June 3, 2008 at 11:35 a.m. in Book 13124, Page 1600, Wake County Registry, James F. Jordan having been substituted as trustee by instrument recorded in Book 14748, Page 1363, Wake County Registry, and default having occurred and the Deed of Trust bein g subject to foreclosure, and the Holder of the indebtedness having demanded foreclosure, the undersigned Substitute Trustee will expose for sale at public auction on September 12, 2012 at 10:15 a.m. at the door of the Wake County Courthouse, Raleigh, N.C., the following real property including any improvements thereon:
Lying and being located in Cary Township, Wake County, North Carolina, and being described as follows:
BEGINNING at an iron pipe found in the northern right-of-way line of West Chatham Street at a common corner with the western line of the CSX Railroad 100 foot right-of-way; runs thence along the northern right-of-way line of West Chatham Street South 87° 09' 51” West 105.48 to an iron rebar found; thence continuing along the northern right-of-way line of West Chatham Street along a curve to the right with a radius of 809.33 feet and having a bearing of North 88° 07' 28” West an arc length of 133.10 feet to an iron rebar found; thence continuing along the northern right-of-way line of West Chatham Street North 83° 24' 46” West 163.22 feet to an iron pipe set; runs thence along a curve to the right where the northern right-of-way line of West Chatham Street curves into the eastern right-of-way line of Old Apex Road, said curve having a radius of 50.00 feet and having a bearing of North 34° 10' 12 West an arc length of 85.94 feet to an iron pipe found; runs thence along the eastern right-of-way line of Old Apex Road 15° 04' 12” East 212.45 feet to an iron pipe found; thence leaving the eastern right-of-way line of Old Apex Road running South 89° 56' 10” East 509.90 feet to a concrete monument found located in the western line of the CSX Railroad 100 foot right-of-way; runs thence along the western line of the CSX Railroad 100 foot right-of-way South 23° 12' 28” West 309.96 feet to an iron pipe found, being the point and place of BEGINNING, containing 3.133 acres, according to that certain unrecorded survey entitled “ALTA Survey For: PDRH, LLC”, prepared by Frank G. Mundy, PLS, dated September 12, 2007, reference to such unrecorded survey being hereby made for a more particular description of the metes, bounds, courses and distances of such property.
The real property described above was deeded to Apex Road Commercial, LLC, by Apex Road, LLC, by deed recorded in Book 13408, Page 2507, Wake County Registry.
Said property to be offered pursuant to this Notice of Sale is being offered for sale, transfer and conveyance AS IS WHERE IS. There are no representations of warranty relating to the title or any physical, environmental, health, or safety conditions existing in, on, at, or relating to the property being offered for sale. This sale is made subject to all prior liens, unpaid taxes, special assessments, land transfer taxes, if any, easements, conditions, covenants, restrictions and all encumbrances of record. To the best of the knowledge and belief of the undersigned, the current owner of the property is Apex Road Commercial, LLC. This property is not subject to notices required by N.C.G.S. 45-100--107.A deposit of five percent (5%) of the bid, or Seven Hundred Fifty Dollars ($750.00), whichever is greater, will be required at the time of the sale and must be tendered in the form of certified funds. Following the expiration of the statutory upset bid period, all the remaining amounts will be immediately due and owing. The successful bidder shall tender the full balance of the purchase price, in cash or certified check when the trustee tenders, or attempts to tender, the deed for the property. If the successful bidder then fails to pay the balance of the purchase price, he shall remain liable on his bid as provided by N.C.G.S. 45 21.30(d) and (e). This sale will be held open ten (10) days for upset bids as required by law. Third party purchasers must pay the excise tax, pursuant to N.C.G.S. 105-228.30, in the amount of One Dollar ($1.00) per each Five Hundred Dollars ($500) or fractional part thereof, and the Clerk of Courts fee, pursuant to N.C.G.S. 7A-308, in the amount of Forty-five Cents (.45) per each One Hundred Dollars ($100) or fractional part thereof or Five Hundred Dollars ($500.00), whichever is greater.
If the trustee is unable to convey title to this property for any reason, the sole remedy of the purchaser is the return of the deposit. Reasons of such inability to convey include, but are not limited to, the filing of a bankruptcy petition prior to the confirmation of the sale and reinstatement of the loan without knowledge of the trustee. If the validity of the sale is challenged by any party, the trustee, in their sole discretion, if they believe the challenge to have merit, may request the court to declare the sale to be void and return the deposit. The purchaser will have no further remedy.
PLEASE TAKE NOTICE: An order for possession of the property may be issued pursuant to G.S. 45-21.29 in favor of the purchaser and against the party or parties in possession by the clerk of superior court of the county in which the property is sold. Any person who occupies the property pursuant to a rental agreement entered into or renewed on or June 2, 2008, may, after receiving the notice of the sale, terminate the rental agreement upon 10 days' written notice to the landlord. This notice shall also state that upon termination of a rental agreement that tenant is liable for rent due under the rental agreement prorated to the effective date at the termination.
Special Notice. In the event that tax liens attach to this property, The United States of America, Treasury Department, Internal Revenue Service, has certain rights to purchase which may be exercised after the trustee's sale. Prospective purchasers are urged to familiarize themselves with these rights to which the sale may be subject.
Special Notice. On information and belief the property to be sold may be subject to Mechanics and Materialman's claims of lien which may be superior to the interest in the property being foreclosed and sold and which may or may not appear in the public record. Prospective purchasers are urged to familiarize themselves with the public record and the law. Purchasers will neither be relieved of their obligations nor allowed to withdraw their bids due to lack of knowledge or if a lien claimant subsequently asserts a higher priority claim.
August ____, 2012
James F. Jordan, Substitute Trustee
JORDAN LAW OFFICES, P.A.
Post Office Box 1129
Wake Forest, NC 27588-1129
Telephone: 919-847-3740

Date Posted:
Date of Mailing:
July 20, 27; August 3, 2012 12-2900H