notice of trustees’ sale
Notice is hereby given by the undersigned Successor Deed of Trust Trustee, in accordance with the provisions of that certain Deed of Trust West Virginia (Commercial), dated May 4, 2007, made by Caldwell Trailblazer, LLC, a Virginia limited liability company, as Grantor (“Caldwell”), and Scott H. McCulloch and E.E. Bibb, as Trustees, of record in the office of the Clerk of the County Commission of Raleigh County, West Virginia, in Trust Deed Book 5026, at page 7680 (the “Deed of Trust”), securing repayment of indebtedness evidenced by that certain Promissory Note, dated May 4, 2007, payable by Caldwell Trailblazer, LLC, to the order of Lawrence A. Melfa, Trustee of the Verona Smith Irrevocable Trust, dated March 15, 2005, and to Lawrence A. Melfa, Trustee of the Julius K. Caldwell Irrevocable Trust, dated March 15, 2005 (collectively, the “Trusts”) in the original principal amount of $3,600,000.00, as modified from time to time (collectively, the “Note”), plus interest thereon, and all other indebtedness arising under the Deed of Trust and the Note.
Pursuant to authority granted in the Deed of Trust, the Trusts, as the owners and holders of the Note secured by the Deed of Trust, through Robert D. Kalinoski, successor trustee of the Trusts, appointed Julia A. Chincheck, Zachary J. Rosencrance and Alexandra M. Shulz, each a resident of Kanawha County, West Virginia, to serve as Successor Deed of Trust Trustees, by that certain Appointment of Successor Trustees, dated January 9, 2019, of record in the aforesaid Clerk’s office in Book 5068, at page 9289.
Pursuant to the terms and conditions of a Deed of Assumption, dated March 28, 2013, by and between Caldwell, TAMS Management, Inc., a West Virginia corporation (“TAMS”) and the Trusts and recorded among the aforesaid Clerk’s office in Book 5051, at page 930 (“Deed of Assumption”), the Trusts consented to the transfer of the Real Property, as defined below, from Caldwell to TAMS subject to the first priority lien of the Deed of Trust in favor of the Trusts. TAMS, in turn, assumed Caldwell’s obligations under the Note such that Caldwell and TAMS are currently jointly and severally liable to the Trusts under the Note.
The Trusts, as the owners and holders of the Note secured by the Deed of Trust, have notified the Successor Deed of Trust Trustees that Caldwell and TAMS are in default under the terms of the Deed of Trust, the Note, and the Deed of Assumption and have requested, in writing, that the Successor Deed of Trust Trustees sell the real property described in the Deed of Trust at public auction, in accordance with the terms of the Deed of Trust and applicable law.
TAKE NOTICE that the undersigned Successor Deed of Trust Trustee will offer for sale at public auction on the 27th day of March, 2020, at 11:00 a.m., prevailing Eastern time, at the front door of the Raleigh County Courthouse, 215 Main Street, Beckley, West Virginia, certain real estate situate in Raleigh County, West Virginia, and being more particularly bounded and described as follows (hereinafter, the “Real Property”):
The land referred to herein below is described as a certain tract or parcel of land known as the Price Heirs Tract, situate in Shady Spring District, Raleigh County, West Virginia, adjoining the lands which have been formerly owned by The New River Company, New Flat Top Mining Company, Piney Coking Coal Land Company, Leckie Fire Creek Coal Company, and others, and is listed on Tax Map 47, at Parcel No. 1.0, and more particularly bounded and described as follows:
BEGINNING at a set stone (found,) a point on the western boundary line of Parcel 14.0, Tax Map 52 (Betty Sue Empson, Sherman Lee Shumate, and Patricia Ann Doleman, Book 5014, page 5649,) being the northeastern boundary corner of Parcel 7.0, Tax Map 52 (Basil Shrewsbury and Beebee Shrewsbury, Deed Book 741, page 142;) thence following the northern boundary line of said Parcel 7.0, and Parcel 2.0, Tax Map 52 (Basil G. Shrewsbury, Deed Book 527, page 523,) South 83deg. 36′ 22″ West, passing a reference set stone (found) at 171.93 feet, 0.86 feet left, a total distance of 2,514.82 feet to a 5/8 inch diameter iron rebar (placed) near the western side of West Virginia County Route 44/1 (public right-of-way,) being the northwestern boundary corner of said Parcel 2.0, and being the southeastern boundary corner of Parcel 15.0, Tax Map 51 (Piney Coking Coal Land Company, Inc., Deed Book 442, page 298;) thence following the eastern boundary line of said Parcel 15.0 and Parcel 6.0, Tax Map 51 (Gloria Regina Obugene Norman, Book 5000, page 9693,) North 07deg. 33′ 00″ West, 2697.28 feet to a 5/8 inch diameter iron rebar (placed,) the northeastern boundary corner of said Parcel 15.0; thence following the northern boundary line of said Parcel 15.0 the following four (4) bearings and distances: 1) South 82deg. 49′ 52″ West, 3,320.11 feet to a set stone (found) south of Keaton Branch and on the south side of West Virginia County Route 48/3 (public right-of-way,) 2) North 19deg. 34′ 42″ West, 177.26 feet to a set stone (found) north of said Keaton Branch, 3) North 49deg. 50′ 36″ West, 1,187.40 feet to a 5/8 inch diameter iron rebar (placed,) 4) North 88deg. 58′ 53″ West, passing a reference set stone (found) at 1525.75 feet, 0.31′ right, a total distance of 1,682.88 feet to a set stone (found) north of said Keaton Branch, being a point at the intersection of the northern boundary line of said Parcel 15.0 and eastern boundary line of Parcel 1.0, Tax Map 50 (Piney Land Company, Inc., Deed Book 749, page 783;) thence leaving the northern boundary line of said Parcel 15.0, and following the eastern boundary line of said Parcel 1.0, and Parcel 3.0, Tax Map 48 (Thomas F. Cooper, Deed Book 675, page 130,) the following five (5) bearings and distances: 1) North 14deg. 33′ 28″ East, passing a reference set stone (found) at 98.13 feet, 0.35 feet left, a total distance of 1,914.45 feet to a set stone (found,) 2) North 66deg. 32′ 21″ East, passing a reference set stone (found) at 98.91 feet, 0.43 feet left, and passing a reference set stone (found) at 1,089.63′ , 0.12 feet right, a total distance of 1,190.93 feet to a 5/8 inch diameter iron rebar (placed,) 3) North 13deg. 43′ 42” East, 2,328.51 feet to a set stone (found) on the western side of Laurel Creek, 4) South 69deg. 01′ 08″ West, passing a reference set stone (found) at 142.02 feet, 0.68 feet left, and passing a reference set stone (found) at 1,025.84 feet, 0.11 feet right, a total distance of 1094.82 feet to a set stone (found,) 5) North 14deg. 45′ 15″ East, passing a reference set stone (found) at 123.72 feet, 0.22 feet left, a total distance of 6,965.04 feet to a 5/8 inch diameter iron rebar (placed,) a common boundary corner of said Parcel 1.0, Tax Map 50 with Parcel 6.0, Tax Map 39 (Donovan B. Bailey, Book 5003, page 697,) being South 14deg. 45′ 22″ West, 210.77 feet from a set stone (found) on the western boundary line of said Parcel 6.0; thence following the southern boundary line of said Parcel 6.0, Parcel 1.0, Tax Map 40 (Kirby Land Company, Inc., Roll 20, pg. 2427,) Parcel 13.0, Tax Map 24 (Beaver Coal Company, LLC, no reference,) Parcel 4.0, Tax Map 41 (Kirby Land Company, Inc., Roll 20, page 2427, and Parcel 2.0, Tax Map 42 (Ray Massie and Ora Massie, Roll 145, page 1230,) South 64deg. 39′ 00″ East, passing through a 5/8 inch diameter iron rebar (placed) near the western side of Bowyer Creek, being the southeastern boundary corner of said Parcel 6.0, at 1,130.00 feet, passing a reference set stone (found) near the western side of an unnamed tributary of Bowyer Creek at 7,711.62 feet, 6.14 feet right, and passing a reference set stone (found) north of an unnamed tributary of Oak Creek at 10,847.47 feet, 0.13 feet right, a total distance of 11,002.08 feet to a set stone (found) north of said unnamed tributary of Oak Creek; thence South 09deg. 00′ 34″ West, 1,441.59 feet to a 5/8 inch diameter iron rebar (placed,) a point on the western boundary line of Parcel 1.0, Tax Map 46 (Winona Fern Evans, Book 5015, page 3995,) being the northeastern boundary corner of Parcel 1.1, Tax Map 47 (Donovan B. Bailey, Deed Book 739, page 626;) thence following the northern boundary line of said Parcel 1.1, South 83deg. 21′ 12″ West, 1,700.00 feet to a 5/8 inch diameter iron rebar (placed,) the northwestern boundary corner of said Parcel 1.1; thence following the western boundary line of said Parcel 1.1, South 09deg. 00′ 34″ West, 1,800.00 feet to a 5/8 inch diameter iron rebar (placed,) the southwestern boundary corner of said Parcel 1.1, being a point on the northern boundary line of Parcel 2.0, Tax Map 47 (Jones & Jordan Engineering, Inc., Book 5010, page 2130;) thence following the northern boundary line of said Parcel 2.0, South 83deg. 21′ 12″ West, passing through a reference set stone (found) at 1,802.78 feet, a total distance of 2,088.44 feet to 5/8 inch diameter iron rebar (placed,) the northwestern boundary corner of said Parcel 2.0; thence following the western boundary line of said Parcel 2.0, South 03deg. 07′ 45″ West, 3,932.84 feet to a set stone (found,) the southwestern boundary corner of said Parcel 2.0, being the northwestern boundary corner of Parcel 16.0, Tax Map 52 (Myrtle Ida Robinson and Clarence Glen Whitlow, Roll 111, page 311;) thence following the western boundary line of said Parcel 16.0, and said Parcel 14.0, South 16deg. 08′ 04″ East, passing a reference set stone (found) at 1,497.86 feet, 0.31 feet left, a total distance of 1,662.56 feet to the point of BEGINNING, containing 2,139.676 acres more or less.
EXCEPTING AND RESERVING, however, the specific rights of Florence Kirby for a right-of-way over the northern part of the tract hereby leased as the same appears in the grant from Hunter Smith to Florence A. Kirby, dated May 31, 1951, which said Deed is of record in the Office of the Clerk of the County Commission of Raleigh County, West Virginia, in Deed Book 301, at Page 394.
EXCEPTING AND RESERVING, ALSO, all oil and gas rights in and to said property owned by others.
Being a portion of the same property conveyed by Deed of Assumption dated March 28, 2013, recorded April 12, 2013, of record in Microfilm Roll 5051, page 930, from Caldwell Trailblazer, LLC, a Virginia limited liability company, to TAMS Management, Inc., a West Virginia corporation.
The Real Property is believed to consist of a large tract of land containing approximately 2,140 +/- acres. The Real Property is identified in the Shady Springs Tax District on Map 47 as Parcel 1. The sale of the Real Property is for surface rights only and does not include any mineral or timber rights. The Real Property is believed to be zoned R-1, Rural Residential.
Tax Parcel Identification Number: 08-47-00011-0000.
terms of sale
The Real Property will be sold for cash in hand, or cashier’s check, on the date of sale, or under any different, other, or additional sale terms as the Successor Deed of Trust Trustees, in their discretion, determine to be appropriate or advisable. The minimum bid for the Real Property is One Million Dollars ($1,000,000.00). A deposit in the amount of One Hundred Thousand Dollars ($100,000.00), payable in cash, certified check (made payable to the order of “Bowles Rice LLP”) or other form acceptable to the Successor Deed of Trust Trustees, will be required from the successful bidder for the Real Property (the “Purchaser”) at the time and place of sale (“Deposit”). The balance of the purchase price shall be due upon settlement, which shall occur within thirty (30) days of the date of the sale; however, the Successor Deed of Trust Trustees reserve the right to extend the time for settlement, time being of the essence. In the event the Trusts or an affiliate of the Trusts is the successful bidder at the sale, the Trusts or the affiliate of the Trusts will not be required to post a Deposit. The Successor Deed of Trust Trustees will require all potential bidders to qualify prior to the commencement of bidding by showing evidence of their ability to deliver the required Deposit at the time of the sale. The sale of the Real Property shall be further subject to the following:
1. All real estate taxes (including, without limitation, all taxes due and owing as a result of any tax sales of the Real Property, personal property taxes, or otherwise), other taxes, water charges, sewer charges and all municipal charges and other similar liens owed against the Real Property, which are not otherwise extinguished as a matter of law by the foreclosure sale, shall be the responsibility of the Purchaser and shall be paid by the Purchaser at settlement. In addition, all other charges, expenses and liens owed against the Real Property which are not otherwise extinguished as a result of the foreclosure sale, including, but not limited to, all public charges and assessments owed against the Real Property and payable on an annual basis, such as sanitary and/or metropolitan district charges, if any, shall also be the responsibility of the Purchaser and shall be paid by the Purchaser at settlement;
2. All senior liens, statutory liens or other liens against the Real Property that are not extinguished as a matter of law by the foreclosure sale;
3. All covenants, conditions, declarations, restrictions, reservations, easements and rights-of-way appearing of record in the chain of title to the Real Property, but only to the extent such matters are senior to the Deed of Trust;
4. All other agreements of record affecting the Real Property, but only to the extent such matters are senior to the Deed of Trust;
5. All matters that may be visible from a physical inspection or an accurate survey of the Real Property;
6. Any existing building or zoning code violations with respect to the Real Property;
7. All conditions or hazards which may exist on or with respect to the Real Property;
8. Any critical area or wetland violations and any environmental problems, conditions, encroachments and other violations which may exist on or with respect to the Real Property;
9. At settlement, the Purchaser shall be responsible for paying the costs of all documentary stamps, recordation taxes, document preparation, transfer taxes, title examination costs, its attorney’s fees and all other charges associated with the conveyance of the Real Property to the Purchaser;
10. The Real Property will be sold “AS IS, WHERE IS” in the present condition and with all faults and defects, if any, and without any warranties or representations, either express or implied, including, without limitation, any warranties relating to zoning, extent or quality of construction, fitness for a particular purpose or environmental conditions affecting the Real Property. The Purchaser shall assume the risk of loss for the Real Property immediately after the foreclosure sale takes place. The Successor Deed of Trust Trustees shall be under no duty to cause any existing tenant or person occupying the Real Property to vacate said Real Property. Upon payment of the purchase price for the Real Property by the Purchaser to the Successor Deed of Trust Trustees, the Successor Deed of Trust Trustees will deliver a Successor Deed of Trust Trustee’s Deed to the Purchaser without any covenant or warranty (express or implied) in the form prescribed by West Virginia Code 38-1-6. The Successor Deed of Trust Trustees make no representations or warranties about the title to the Real Property being offered for sale. If the Successor Deed of Trust Trustees are unable to convey insurable or marketable title to the Real Property to the Purchaser for any reason, the Purchaser’s sole remedy at law or in equity will be the return of the Deposit. Upon the refund of the deposit to the Purchaser, the sale shall be void and of no force or effect, and the Purchaser shall have no claims against the Successor Deed of Trust Trustees, the Trusts or the Auctioneer listed below (“Auctioneer”);
11. In the event that there are any federal tax liens recorded against the Real Property, the United States would have the right to redeem the Real Property within a period of 120 days from the date of the foreclosure sale or the period allowable for redemption under local law, whichever is longer;
12. The undersigned Successor Deed of Trust Trustee expressly reserves the right to reject any and all bids, and the right to adjourn the sale from time to time without notice other than oral proclamation at the time and place appointed for the sale. Such adjournment may be for a period of time deemed expedient by the Successor Deed of Trust Trustees and/or the Trusts, and shall not be construed to be a waiver of the right to make the sale contemplated by this Notice;
13. The beneficiary of the Deed of Trust and holder of the Note thereby secured reserves the right to submit a bid for the Real Property at the sale, which bid may be in the form of a credit bid;
14. The Purchaser will be required to execute a memorandum of sale upon the acceptance of the Purchaser’s successful bid for the Real Property by the Successor Deed of Trust Trustees;
15. Within 10 days prior to closing on the sale of the Real Property to the Purchaser, the Purchaser shall provide the Successor Deed of Trust Trustees and the Trusts with all written documentation, certifications and information that the Successor Deed of Trust Trustees and/or the Trusts may request (collectively the “Disclosures”) so that the Successor Deed of Trust Trustees and/or the Trusts can confirm that closing on the sale or conveying title to the Real Property to the Purchaser will not violate any applicable anti-money laundering, anti-terrorism or other applicable laws, statutes or regulations. The Successor Deed of Trust Trustees shall have no obligation to close on the sale or convey title to the Real Property to the successful bidder unless and until (a) the successful bidder has provided all required Disclosures to the Successor Deed of Trust Trustees and the Trusts, and (b) the Successor Deed of Trust Trustees and the Trusts, in their sole and absolute discretion, have confirmed that closing on the sale or conveying title to the Real Property to the successful bidder will not violate any applicable anti-money laundering, anti-terrorism or other applicable laws, statutes or regulations;
16. In the event any Purchaser fails to go to settlement as required, the aforementioned Deposit shall be forfeited to the Successor Deed of Trust Trustees and the Trusts, and the Real Property shall be resold at the Purchaser’s sole risk and expense. In such event, the defaulting Purchaser shall be liable for the payment of any deficiency in the purchase price, all costs and expenses of both sales, reasonable attorneys’ fees, and any other damages sustained by the Successor Deed of Trust Trustees and the Trusts, including, without limitation, all incidental damages. In the event a resale of the Real Property results in a purchase price in excess of the amount originally bid by the defaulting Purchaser, the defaulting Purchaser waives any and all claims, rights and interest to any such excess amount and shall not be entitled to any distribution whatsoever from the resale proceeds; and
17. The parties’ respective obligations regarding the terms of the sale and the conduct of the sale of the Real Property shall be governed by and interpreted in accordance with the laws of the State of West Virginia.
Any information contained herein or otherwise conveyed by the Successor Deed of Trust Trustees, the Auctioneer or their respective agents is offered for informational purposes only and is believed to be reliable but has not been independently verified by the Successor Deed of Trust Trustees or the Auctioneer. The Trusts, the Successor Deed of Trust Trustees and the Auctioneer do not make any representations or warranties with respect to the accuracy of this information. Regardless of other printed sales information concerning this sale, this Notice of Trustees’ Sale and any additional terms announced at the sale shall control.
Additional terms of sale may be announced prior to the sale.
Any inquiries regarding this sale may be directed to Michael G. Gallerizzo, counsel to the Trusts, One South Street, Suite 2200 Baltimore, Maryland 21202, telephone 410-385-5046, Zachary J. Rosencrance, Successor Deed of Trust Trustee, 600 Quarrier Street, Charleston, West Virginia 25301, telephone (304) 3471100 or Jay Goldman, Goldman Associates, Inc., 1014 Bridge Road, Charleston, WV 25314, telephone 304-343-5695.
DATED: February 13, 2020.
/s/ Zachary J. Rosencrance
Successor Deed of Trust Trustee
ID: 364349