3859 Austin Cir

430-507550 5/7,5/14,5/21,5/28NOTICE OF SALE UNDER POWERSTATE OF GEORGIACOUNTY OF DEKALBUnder and by virtue of the power of sale contained in that certain Deed to Secure Debt, Security Agreement and Assignment of Rents (Facility A), dated August 9, 2022, made by SPRING CREEK APARTMENT HOMES LLC, a Georgia limited liability company (“Grantor”), in favor of MERCHANTS BANK OF INDIANA (“Original Grantee”), recorded August 11, 2022, in the Office of the Recorder of Dekalb County, Georgia at Deed Book 30509, beginning at Page 144, as assigned by Original Grantee to Computershare Trust Company, National Association, as Trustee for the Benefit of the Registered Holders of Merchants Multifamily Trust 2022-RSS1, Multifamily Mortgage Pass-Through Certificates, Series 2022-RSS1 (“Grantee”), pursuant to that Assignment of Deed to Secure Debt, Security Agreement and Assignment of Rents (Facility A), dated September 22, 2022, and recorded September 27, 2022 in the Office of the Recorder of Dekalb County, Georgia at Deed Book 30584 beginning at Page 99 (said Deed to Secure Debt, Security Agreement and Assignment of Rents (Facility A) and as the same may have been assigned, modified and amended from time to time, the “Security Deed”), said Security Deed having been given to secure, among other things, the payment of the indebtedness evidenced by, among other things, that certain Promissory Note (Facility A) (the “Note”), dated as of August 9, 2022, made by Grantor and COBBS CREEK APARTMENT HOMES LLC LLC, a Georgia limited liability company (“Cobbs Creek”), to the order of Original Grantee in the original principal face amount of TWENTY-FIVE MILLION FOUR HUNDRED TWO THOUSAND AND NO/100 DOLLARS ($25,402,000.00), of which Grantee is currently the holder, and that certain Loan Agreement (Facility A) (the “Loan Agreement”), dated as of August 9, 2022, by and among Grantor, Cobbs Creek, and Original Grantee, of which Grantee is currently the holder, there will be sold by Grantee, at public outcry, to the highest bidder for cash, before the door of the courthouse of Dekalb County, Georgia, within the legal hours of sale on the first Tuesday in June 2026, being June 2, 2026, all of Grantor's rights, titles, interests and estates in the following described property as are encumbered by the Security Deed (collectively, the “Property”):(a) All those tracts or parcels of land and easements more particularly described as follows (hereinafter referred to as the "Real Estate"):ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 164 OF THE 15TH DISTRICT OF DEKALB COUNTY, GEORGIA. CONTAINING 9.636 ACRES, AS SHOWN ON SURVEY MADE FOR BC38, LLC, A MICHIGAN LIMITED LIABILITY COMPANY AND FIRST AMERICAN TITLE INSURANCE COMPANY, PREPARED BY JONATHAN BLAKE PRINCE, R.L.S. #3244, DATED 05-26-2016, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:TO FIND THE POINT OF BEGINNING, COMMENCE FROM THE INTERSECTION FORMED THE CENTERLINE OF GLENWOOD ROAD AND THE EASTERLY RIGHT-OF-WAY OF AUSTIN DRIVE (80' R/W); THENCE FROM SAID INTERSECTION SOUTHERLY ALONG SAID RIGHT-OF-WAY OF AUSTIN DRIVE A DISTANCE OF 769.8' TO AN IRON PIN FOUND 1/2" REBAR AND THE POINT OF BEGINNING; THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 86 DEGREES 57 MINUTES 31 SECONDS EAST A DISTANCE OF 811.96' TO AN IRON PIN FOUND ON THE WESTERLY RIGHT-OF-WAY OF INTERSTATE #285 (R/W VARIES): THENCE ALONG SAID RIGHT-OF-WAY SOUTH 05 DEGREES 06 MINUTES 31 SECONDS EAST A DISTANCE OF 87.34' TO AN IRON PIN PLACED 1/2" REBAR; THENCE ALONG SAID RIGHT-OF-WAY SOUTH 04 DEGREES 03 MINUTES 56 SECONDS WEST A DISTANCE OF 560.80' TO AN IRON PIN FOUND 1/2" REBAR; THENCE LEAVING SAID RIGHT-OF-WAY NORTH 87 DEGREES 06 MINUTES 53 SECONDS WEST A DISTANCE OF 782.20' TO AN IRON PIN PLACED 1/2" REBAR ON THE EASTERLY RIGHT-OF-WAY OF AUSTIN DRIVE (80' R/W); THENCE ALONG SAID RIGHT-OF-WAY NORTH 00 DEGREES 16 MINUTES 50 SECONDS WEST A DISTANCE OF 100,07' TO AN IRON PIN PLACED 1/2” REBAR; THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 86 DEGREES 58 MINUTES 22 SECONDS EAST A DISTANCE OF 242.99' TO AN IRON PIN PLACED 1/2" REBAR; THENCE NORTH 02 DEGREES 34 MINUTES 39 SECONDS EAST A DISTANCE OF 99.90' TO AN IRON PIN PLACED 1/2" REBAR; THENCE NORTH 84 DEGREES 35 MINUTES 51 SECONDS WEST A DISTANCE OF 15.00' TO AN IRON PIN PLACED 1/2" REBAR; THENCE NORTH 02 DEGREES 36 MINUTES 39 SECONDS EAST A DISTANCE OF 95.80' TO AN IRON PIN PLACED 1/2" REBAR: THENCE SOUTH 84 DEGREES 40 MINUTES 21 SECONDS EAST A DISTANCE OF 25.00' TO AN IRON PIN PLACED 1/2" REBAR; THENCE NORTH 02 DEGREES 36 MINUTES 39 SECONDS EAST A DISTANCE OF 200.00' TO AN IRON PIN PLACED 1/2" REBAR; THENCE NORTH 84 DEGREES 30 MINUTES 30 SECONDS WEST A DISTANCE OF 271.70' TO AN IRON PIN PLACED 1/2" REBAR ON THE EASTERLY RIGHT-OF-WAY OF AUSTIN DRIVE; THENCE ALONG SAID RIGHT-OF-WAY NORTH 01 DEGREES 06 MINUTES 03 SECONDS EAST A DISTANCE OF 142.50' TO AN IRON PIN FOUND 1/2" REBAR AND POINT OF BEGINNING.COMMONLY KNOWN AS: 3859 AUSTIN CIRCLE, DECATUR, GEORGIACOUNTY MAP NO. 15 164 01 015 (b) All of the present and future estates, interests and rights of Grantor in and to (i) the Real Estate, (ii) all Real Estate in which Grantor may now or hereafter acquire an interest by reason of any accession or accretion with respect to the Real Estate, and (iii) all real estate situated within the rights-of-way of any streets, alleys and roads adjoining the Real Estate;(c) All buildings, structures, improvements and fixtures (including but not limited to all lighting fixtures and mechanical equipment) now or hereafter erected or placed in or upon the Real Estate or now or hereafter attached to or used in connection with the Real Estate to the extent such items may be considered part of the Real Estate under applicable law;(d) All tenements, hereditaments, easements, appurtenances and other rights and privileges thereunto now or hereafter attaching and belonging, or in any way appertaining to the Real Estate, including without limitation (i) all surface and subsurface soils, (ii) all minerals, elements, oil, gas, and other commercially valuable substances which may be in, under or produced from any part of the Real Estate and all right and interest in any oil, gas or other mineral lease, pipeline agreement or other instrument related to the production or sale of oil, gas or any other commercially valuable substances which may be in, under or produced from any part of the Real Estate now or hereafter entered into, (iii) all air rights, and (iv) all water and water rights;(e) All rents, issues, profits, income, cash, proceeds, accounts, accounts receivable, instruments, letter of credit rights, insurance proceeds, deposit and other accounts, contract rights and general intangibles arising of or from the Real Estate or the improvements from time to time located thereon, including but not limited to the rents, income and profits arising from the operation of any business and all fees, charges, accounts or other payments for the use or occupancy of rooms and other public facilities in any hotel, motel, or other lodging properties located on the Real Estate (funds obtained as such rents, income, profits, fees, charges, accounts or other payments and held in any reserve, account or credit balance shall retain the character of such rents, income, profits, fees, charges, accounts or other payments);(f) All interests, estates or other rights and claims, arising in law or in equity, which Grantor now has or may hereafter acquire in any of the foregoing, including without limitation any greater estate Grantor may hereafter acquire in the Real Estate or improvements located thereon (the interests, estates and other rights and claims described in paragraphs (a) through (f) are hereinafter collectively referred to as the "Premises");(g) All leases, subleases, subtenancies, licenses, occupancy agreements and other agreements for the leasing, use, occupancy or enjoyment of any portion or all of the Premises now or hereafter existing, and all amendments, renewals and extensions thereof (hereinafter collectively referred to as the "Leases");(h) All present and future guaranties of the performance of any lessee under any of the Leases and all letters of credit issued, and all other collateral granted, as security for the obligations of any tenant arising under or in connection with any of the Leases;(i) All monies, deposit accounts, furniture, equipment, inventory, fixtures, accounts, accounts receivable, chattel paper, documents, investment property, trademarks and all trade name agreements, logos, licenses, instruments, contract rights, insurance proceeds, commercial tort claims, franchise agreements, software, letter of credit rights, and general intangibles (including payment intangibles) in which Grantor now or hereafter has an interest, individually or with others, and which are located upon, used in connection with, related to or arising out of the Premises, and all additions, accessions and accretions to, replacements and substitutions for, products of and proceeds from any of the foregoing;(j) All insurance policies relating to the Premises and all claims and rights to payment of proceeds and other sums payable thereunder or in connection therewith;(k) All awards, compensation and settlements in lieu thereof made as a result of the taking by power of eminent domain of the whole or any part of the Premises, including any awards for damages sustained to the Premises, for a temporary taking, change of grade of streets or taking of access;(l) All present and future deposits and revenues relating to the Premises, including without limitation security deposits, replacement revenue escrows, tax and insurance escrows and working capital reserves or escrows, and all funds of Grantor from time to time on deposit with Lender;(m) All present and future building permits, operating permits, variances, licenses, governmental permits and approvals, utility permits, certificates of occupancy, and other permits, approvals and authorizations now or hereafter issued in connection with and the development, construction, equipping, maintenance or operation of the Premises;(n) All present and future contracts or agreements relating to the design, development, construction, furnishing, equipping, operation, use or maintenance of the Premises, including without limitation all construction contracts and subcontracts, architectural contracts, engineering contracts and other design contracts and purchase agreements;(o) All present and future contractor's, subcontractor's and supplier's warranties, guarantees of performance and undertakings with respect to services or materials furnished in connection with the design, development, construction, equipping, operation, use or maintenance of the Premises;(p) All present and future service and other agreements relating to the operation, management, maintenance and repair of the Premises or the buildings and improvements thereon, whether now owned by Grantor or hereafter acquired or arising, including without limitation any present or future management agreement relating to the management or operation of the Premises;(q) All present and future plans and specifications, surveys, site plans, soil reports, drawings and papers relating to the Premises and the development, design, construction and equipping of the improvements on the Premises, whether now owned by Grantor or hereafter acquired or arising;(r) All present and future contracts and agreements providing for financial incentives, grants, tax credits, loans, infrastructure development by third parties or other financial support in connection with the design, development, construction, equipping, operation, use or maintenance of the Premises, including without limitation all tax increment financing agreements, bond financing agreements, tax credit allocations and awards, agreements for payment in lieu of taxes and other governmental project agreements;(s) All building supplies and materials ordered or purchased for use in connection with the construction and equipping of the improvements on the Premises, whether now owned by Grantor or hereafter acquired or arising;(t) All proceeds and contract rights and payments payable to Grantor under any loan commitment for financing of the Premises;(u) Any contract or agreement previously or hereafter entered into by Grantor (but specifically excluding any of Grantor's obligations or liabilities arising in connection with in any such contract or agreement) which is an interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest or currency exchange rate or commodity price hedging arrangement, including without limitation any contract or agreement relating to a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar hedging arrangement or transaction;(v) All present and future purchase and sale agreements for the purchase of any portion of the Premises or other property located on the Premises, including without limitation, security deposits, earnest money deposits, association fees or assessments, and related escrows; and(w) All additions, accessions and accretions to, replacements and substitutions for, products of and any and all cash and non-cash proceeds from any of the property described above.The personal property described above, including without limitation the property, rights, interests and claims described in paragraphs (h) through (w) above, are hereinafter collectively referred to as the "Chattels". Notwithstanding anything contained herein, Chattels shall not include any personal property or trade fixtures which any tenant of the Premises owns and is entitled to remove pursuant to its lease except to the extent that Grantor shall have any right or interest in such personal property. Furthermore, (i) the collateral assignment of the rights and interests of Grantor in any franchise or license agreement relating to the operation of any hotel shall be limited and subject to the terms and conditions set forth in any written agreement between Lender and the franchisor under the franchise agreements, and (ii) the collateral assignment of any governmental permits and licenses shall be subject to any applicable legal limitations on the assignment of such items. As used herein, the term "Premises” is synonymous with the term "Secured Property," and the term "lien" is synonymous with the term "security interest and title."Grantor has failed to make payments as required by the Note, which has resulted in the occurrence and continued existence of defaults and events of default by Grantor under the Security Deed. The indebtedness evidenced by the Note is now due and payable in full. As a result of the indebtedness being due and payable in full and remaining unpaid and said defaults and events of default continuing to exist, this sale will be made for the purpose of applying the proceeds of such sale in the manner required by the Security Deed, and by the laws of the State of Georgia. The individual or entity that has full authority to negotiate, amend and modify all terms of the loan is: Gary W. Marsh, Esq., of Troutman Pepper Locke LLP, 600 Peachtree Street, N.E., Suite 3000, Atlanta, GA 30308, (404) 885-2752. Please note that pursuant to O.C.G.A. § 44-14-162.2, the foregoing individual or entity is not required by law to negotiate and/or modify the terms of the loan or Security Deed.To the best of Grantee's knowledge and belief, the Property is in the possession of a receiver appointed by an order of the Superior Court of Dekalb County issued on February 6, 2025, in Civil Action No. 24CV11448 (the “Receiver Order”) and/or Grantor or persons claiming by or through Grantor. The Receiver Order authorizes Grantee to advertise and conduct a non-judicial foreclosure sale of the Property.The Property will be sold on an “as is, where is” basis, without recourse and without representation or warranty, express or implied, of any nature whatsoever with respect thereto, and will be sold subject to: (i) any and all outstanding unpaid taxes and assessments, if any; (ii) unpaid water and sewer bills that constitute liens against the Property, whether due and payable or not yet due and payable; (iii) such matters as would be revealed by an accurate survey and inspection of the Property; (iv) all other assessments, easements, covenants, reservations, restrictions, liens, encumbrances, zoning ordinances, rights, privileges, franchises, tenements, hereditaments and appurtenances, and other matters of record, if any, to which the Security Deed is inferior in terms of priority; and (v) rights of tenants under valid written leases with Grantor that are not in default.The sale will be conducted subject to (1) confirmation that the sale is not prohibited under the U.S. Bankruptcy Code; and (2) final confirmation and audit of the status of the loan with the holder of the Security Deed.Computershare Trust Company, National Association, as Trustee for the Benefit of the Registered Holders of Merchants Multifamily Trust 2022-RSS1, Multifamily Mortgage Pass-Through Certificates, Series 2022-RSS1, as attorney-in-fact for ++Spring Creek Apartment Homes LLC++, a Georgia limited liability company Gary W. Marsh, Esq.Troutman Pepper Locke LLP600 Peachtree Street, N.E., Suite 3000Atlanta, GA 30308(404) 885-2752