16-01701K

NOTICE OF SALE
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT, IN AND FOR POLK COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 2016-CA-000140
LB-UBS 2005-C5 WEST HIGHWAY
92, LLC, a Delaware limited liability
company,
Plaintiff, vs.
BERKLEY SQUARE, LLC, a Florida limited liability company, DANIEL WELCH, individually, and DAVID LOEWY, individually,
Defendants.
NOTICE IS HEREBY GIVEN that pursuant to a Final Judgment of Foreclosure rendered on August 1, 2016 in that certain cause pending in the Circuit Court in and for Polk County, Florida wherein LB-UBS 2005-C5 WEST HIGHWAY 92, LLC, a Delaware limited liability company, is Plaintiff, and Berkley Square, LLC, a Florida limited liability company; Daniel Welch, individually and David Loewy, individually are Defendants in Civil Action Case No.: 2016-CA-000140, Stacy M. Butterfield, Clerk of the aforesaid Court, will at 10:00 a.m., on Tuesday, September 6, 2016, offer for sale and sell to the highest bidder for cash, except as prescribed in Paragraph 5 of the Final Judgment (and Amended Final Judgment which amended only to clarify and confirm the time of the foreclosure sale is 10:00 AM), via electronic sale at www.polk.realforeclose.com in accordance with Section 45.031, Florida Statutes, the following described real and personal property, situate and being in Polk County, Florida to-wit:
SEE ATTACHED
EXHIBITS “A” AND “B”
EXHIBIT “A”
PARCEL ONE - LOT ONE AT NEW AUBURNDALE WALMART
ALL THAT CERTAIN PIECE, PARCEL OR TRACT OF LAND SITUATE LYING AND BEING IN SECTION 9, TOWNSHIP 28 SOUTH, RANGE 25 EAST OF TALLAHASSEE BASE MERIDIAN, POLK COUNTY, FLORIDA. SAID LANDS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: TO WIT;
COMMENCING FOR A POINT OF REFERENCE AT A RAILROAD SPIKE FOUND AT THE NORTHWEST CORNER OF THE SOUTHEAST ONE QUARTER OF SAID SECTION 9; THENCE, BEARING SOUTH 00 DEGREES 12' 14” WEST, ALONG THE WEST LINE OF THE SOUTHEAST 1/4 OF SAID SECTION 9, A DISTANCE OF 1651.24 FEET TO A POINT; THENCE, LEAVING SAID WEST LINE, BEARING SOUTH 89 DEGREES 47' 46” EAST, A DISTANCE OF 35.00 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF BERKLEY ROAD; THENCE, BEARING SOUTH 00° 12' 14” WEST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 148.15 FEET TO A POINT; THENCE, BEARING SOUTH 89 DEGREES 40' 16” EAST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 14.33 FEET TO A POINT; THENCE, BEARING SOUTH 00 DEGREES 12' 14” WEST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 33.40 FEET TO A POINT; THENCE BEARING SOUTH 53 DEGREES 31' 52” EAST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 119.70 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY MAINTAINED RIGHT OF WAY LINE OF U.S. HIGHWAY 92 (STATE ROAD NO. 600) (VARIED WIDTH RIGHT OF WAY); THENCE, BEARING NORTH 82 DEGREES 37' 49” EAST, ALONG SAID NORTHERLY RIGHT OF WAY LINE, A DISTANCE OF 157.24 FEET TO A POINT; THENCE, BEARING NORTH 82 DEGREES 42' 48” EAST ALONG SAID NORTHERLY RIGHT OF WAY LINE, A DISTANCE OF 171.06 FEET TO THE POINT AND PLACE OF BEGINNING OF THE HEREIN DESCRIBED PARCEL; THENCE, LEAVING SAID NORTHERLY RIGHT OF WAY LINE, BEARING NORTH 00 DEGREES 44' 59” WEST, A DISTANCE OF 230.08 FEET TO A POINT; THENCE, BEARING SOUTH 90 DEGREES 00' 00” EAST, A DISTANCE OF 246.09 FEET TO A POINT; THENCE, BEARING SOUTH 00 DEGREES 00' 00” EAST, A DISTANCE OF 196.68 FEET TO A POINT ON SAID NORTHERLY MAINTAINED RIGHT OF WAY LINE OF U.S. HIGHWAY 92 (STATE ROAD NO. 600) (VARIED WIDTH RIGHT OF WAY); THENCE, BEARING SOUTH 80 DEGREES 31' 48” WEST, ALONG SAID NORTHERLY MAINTAINED RIGHT OF WAY LINE A DISTANCE OF 63.78 FEET TO THE POINT; THENCE, BEARING SOUTH 82 DEGREES 45' 20” WEST, ALONG SAID NORTHERLY MAINTAINED RIGHT OF WAY LINE, A DISTANCE OF 178.91 FEET TO THE POINT; THENCE, BEARING SOUTH 82 DEGREES 42' 48” WEST ALONG SAID NORTHERLY MAINTAINED RIGHT OF WAY LINE, A DISTANCE OF 2.71 FEET TO THE POINT OF BEGINNING.
PARCEL TWO - ACCESS EASEMENT
ALL THAT CERTAIN PIECE, PARCEL OR TRACT OF LAND SITUATE LYING AND BEING IN SECTION 9, TOWNSHIP 28 SOUTH, RANGE 25 EAST OF TALLAHASSEE BASE MERIDIAN, POLK COUNTY, FLORIDA. SAID LANDS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: TO WIT;
COMMENCING FOR A REFERENCE AT A RAILROAD SPIKE FOUND AT THE NORTHWEST CORNER OF THE SOUTHEAST ONE QUARTER OF SAID SECTION 9; THENCE, BEARING SOUTH 00 DEGREES 12' 14” WEST, ALONG THE WEST LINE OF THE SOUTHEAST 1/4 OF SAID SECTION 9, A DISTANCE OF 1651.24 FEET TO A POINT; THENCE, LEAVING SAID WEST LINE, BEARING SOUTH 89 DEGREES 47' 46” EAST, A DISTANCE OF 35.00 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF BERKLEY ROAD; THENCE, BEARING SOUTH 00° 12' 14” WEST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 148.15 FEET TO A POINT; THENCE BEARING SOUTH 89 DEGREES 40' 16” EAST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 14.39 FEET TO A POINT; THENCE, BEARING SOUTH 00 DEGREES 12' 14” WEST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 33.40 FEET TO A POINT; THENCE BEARING SOUTH 53 DEGREES 31' 52” EAST, ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 119.70 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY MAINTAINED RIGHT OF WAY LINE OF U.S. HIGHWAY 92 (STATE ROAD NO. 600) (VARIED WIDTH RIGHT OF WAY); THENCE, BEARING NORTH 82 DEGREES 37' 49” EAST, ALONG SAID NORTHERLY RIGHT OF WAY LINE, A DISTANCE OF 157.24 FEET TO A POINT; THENCE, BEARING NORTH 82 DEGREES 42' 48” EAST ALONG SAID NORTHERLY MAINTAINED RIGHT OF WAY LINE, A DISTANCE OF 171.06 FEET TO A POINT; THENCE, LEAVING SAID NORTHERLY RIGHT OF WAY LINE, BEARING NORTH 00 DEGREES 44' 59” WEST, A DISTANCE OF 230.09 FEET TO THE POINT AND PLACE OF BEGINNING OF THE HEREIN DESCRIBED PARCEL: THENCE, BEARING NORTH 00 DEGREES 44' 59” WEST, A DISTANCE OF 46.57 FEET TO A POINT; THENCE, BEARING NORTH 89 DEGREES 24' 38” EAST, A DISTANCE OF 187.40 FEET TO A POINT; THENCE, BEARING NORTH 86 DEGREES 23' 44” EAST, A DISTANCE OF 142.30 FEET TO A POINT; THENCE, BEARING NORTH 81 DEGREES 48' 34” EAST, A DISTANCE OF 219.72 FEET TO A POINT; THENCE, BEARING NORTH 76 DEGREES 44' 42” EAST, A DISTANCE OF 293.99 FEET TO A POINT; THENCE, BEARING SOUTH 90 DEGREES 00' 00” EAST, A DISTANCE OF 28.06 FEET TO A POINT; THENCE, BEARING SOUTH 01 DEGREES 56' 14” EAST, A DISTANCE OF 195.06 FEET TO A POINT; THENCE, BEARING SOUTH 34 DEGREES 38' 44” EAST, A DISTANCE OF 31.58 FEET TO A POINT ON THE AFOREMENTIONED NORTHERLY RIGHT OF WAY LINE OF U.S. HIGHWAY 92; THENCE, BEARING SOUTH 75 DEGREES 58' 22” WEST, ALONG SAID NORTHERLY RIGHT OF WAY LINE, A DISTANCE OF 53.25 FEET TO A POINT; THENCE, LEAVING SAID NORTHERLY RIGHT OF WAY LINE, BEARING NORTH 01 DEGREES 56' 14” WEST, A DISTANCE OF 156.22 FEET TO A POINT; THENCE, BEARING NORTH 35 DEGREES 47' 34” WEST, A DISTANCE OF 39.61 FEET TO A POINT; THENCE, BEARING NORTH 82 DEGREES 27' 21” WEST, A DISTANCE OF 39.61 FEET TO A POINT; THENCE, BEARING SOUTH 76 DEGREES 44' 42” WEST, A DISTANCE OF 220.82 FEET TO A POINT; THENCE, BEARING SOUTH 81 DEGREES 48' 34” WEST, A DISTANCE OF 220.82 FEET TO A POINT; THENCE, BEARING SOUTH 50 DEGREES 49' 39” WEST, A DISTANCE OF 39.75 FEET TO A POINT; THENCE, BEARING SOUTH 17 DEGREES 18' 47” WEST, A DISTANCE OF 42.92 FEET TO A POINT; THENCE, BEARING SOUTH 00 DEGREES 00' 00” WEST, A DISTANCE OF 144.12 FEET TO A POINT; THENCE, BEARING SOUTH 13 DEGREES 44' 40” EAST, A DISTANCE OF 12.92 FEET TO A POINT ON SAID NORTHERLY RIGHT OF WAY LINE; THENCE, BEARING SOUTH 80 DEGREES 31' 48” WEST, ALONG SAID NORTHERLY RIGHT OF WAY LINE, A DISTANCE OF 14.65 FEET TO A POINT; THENCE, LEAVING SAID NORTHERLY RIGHT OF WAY LINE, BEARING NORTH 06 DEGREES 10' 10” WEST, A DISTANCE OF 15.05 FEET TO A POINT; THENCE, BEARING NORTH 00 DEGREES 00' 00” EAST, A DISTANCE OF 146.10 FEET TO A POINT; THENCE, BEARING NORTH, 17 DEGREES 18' 47” EAST, A DISTANCE OF 64.61 FEET TO A POINT; THENCE, BEARING SOUTH 86 DEGREES 23' 44” WEST, A DISTANCE OF 107.37 FEET. TO A POINT; THENCE, BEARING SOUTH 89 DEGREES 24' 38” WEST, A DISTANCE OF 119.23 FEET TO A POINT; THENCE, BEARING SOUTH 00 DEGREES 44' 59” EAST, A DISTANCE OF 23.27 FEET TO A POINT; THENCE, BEARING SOUTH 90 DEGREES 00' 00” WEST, A DISTANCE OF 68.75 FEET TO A POINT THE POINT OF BEGINNING.
EXHIBIT “B”
All of Debtor's right, title and interest in and to the following property (the “Property”) located upon or used in connection with the real property described on Exhibit A to this Schedule A (the “Land”);
a. buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on the Land (the “Improvements”);
b. all easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights and development rights, and all estates, rights, titles, interests, privileges, liberties servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interests, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Debtor of, in and to the Land and the Improvements and every part and parcel thereof, with the appurtenances thereto;
c. all furnishings, machinery, equipment, fixtures (including, but not limited to, all heating, air conditioning, plumbing, lighting, communications and elevator fixtures) and other property of every kind and nature whatsoever owned by Debtor, or in which Debtor has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the Land and the Improvements and all building equipment, materials and supplies of any nature whatsoever owned by Debtor, or in which Debtor has or shall have an interest, now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the Land and the Improvements (collectively, the “Personal Property”), the right, title and interest of Debtor in and to any of the Personal Property which may be subject to any security interests, as defined in the Uniform Commercial Code as adopted and enacted by the State or States where any of the Property is located (the “Uniform Commercial Code”) and all proceeds and products of the above;
d. All leases and other agreements affecting the use, enjoyment or occupancy of the Land and the Improvements heretofore or hereafter entered into, whether before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. § 101 et seq., as the same may be amended from time to time (the “Bankruptcy Code”) (a “Lease” or “Leases”) and all right, title and interest of Debtor, its successors and assigns therein and thereunder, including, without limitation, cash or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, revenues (including, but not limited to, any payments made by tenants under the Leases in connection with the termination of any Lease, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the land and the Improvements whether paid or accruing before or after the filing by or against Debtor of any petition for relief under the Bankruptcy Code (the “Rents”) and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Debt (as defined in the Security Instrument);
e. any and all lease guaranties, letters of credit and any other credit support (individually, a “Lease Guaranty” and collectively, the “Lease Guaranties”) given by any guarantor in connection with any of the Leases (individually, a “Lease Guarantor” and collectively, the “Lease Guarantors”);
f. all rights, powers, privileges, options and other benefits of Debtor as lessor under the Leases and beneficiary under the Lease Guaranties including without limitation the immediate and continuing right to make claim for, receive, collect and receipt for all Rents payable or receivable under the Leases and all sums payable under the Lease Guaranties or pursuant thereto (and to apply the same to the payment of the Debt (as defined in the Security Instrument), and to do other things which Debtor or any lessor is or may become entitled to do under the Leases or the Lease Guaranties;
g. all awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Property, whether from the exercise of the right of eminent domain (including but not limited to any transfer made in lieu of or in anticipation of exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Property;
h. all proceeds of and any unearned premiums on any insurance policies covering, the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Property;
i. all refunds, rebates or credits in connection with a reduction in real estate taxes and assessments charged against the Property as a result of tax certiorari or any applications or proceedings for reduction;
j. all proceeds of the conversion, voluntary or involuntary, of any of the foregoing including, without limitation, proceeds of insurance and condemnation awards, into cash or liquidation claims;
k. the right, in the name and on behalf of Debtor, to appear in and defend any action or proceeding brought with respect to the Property and to commence any action or proceeding to protect the interest of Secured Party in the Property;
1. all agreements, contracts, certicittes, instruments, franchises, permits, licenses, plans, specifications and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or respecting any business or activity conducted on the Land and any part thereof and all right, title and interest of Debtor therein and thereunder, including, without limitation, the right, upon the happening of any default hereunder, to receive and collect any sums payable to Debtor thereunder;
m. all tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Property; and
n. Any and all other rights of the Debtor in and to the terms set forth in items (a) through (m) above.
Initially capitalized terms used herein and not otherwise defined have the meanings assigned in the Mortgage and Security Agreement, dated as of July 22, 2005 (the “Security Instrument”) by the Debtor to the Secured Party. Interested parties may contact the Secured Party during normal business hours to view a copy of the Security Instrument and specific records describing the above-described collateral.
together with all improvements and appurtenances thereto and together with all buildings, improvements and tenements of every kind and description now and hereafter erected or placed on the Land (“the improvements”) and all materials intended for construction, reconstruction, alteration and repair of such Improvements now or hereafter erected or placed thereon, all of which materials shall be deemed to be included within the premises hereby conveyed immediately upon the delivery thereof to the Land, and all Tangible Personalty and Intangible Personalty as stated in the attached Exhibit “A” and “B”.
Said sale will be made pursuant to and in order to satisfy the terms of said Final Judgment of Foreclosure.
Any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the lis pendens must file a claim within sixty (60) days after the sale.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Office of the Court Administrator, (863) 534-4690, within two (2) working days of your receipt of this (describe notice); if you are hearing or voice impaired, call TDD (863) 534-7777 or Florida Relay Service 711.
DATED this 12th day of August, 2016.
By: Kimberly A. Ashby
Kimberly A. Ashby
Florida Bar No.: 322881
AKERMAN LLP
Attorneys for Plaintiff
Post Office Box 231
Orlando, FL 32802-0231
CNL Tower II, Suite 1200
420 South Orange Avenue (32801)
Phone: 407-423-4000
Fax: 407- 843-6610
Email: [email protected]
Attorneys for Plaintiff
Secondary email:
[email protected]
[email protected]
{38949933;1}
August 19, 26, 2016 16-01701K

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