Form 8-K - Current report

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event Reported): February 9, 2024 (February 5, 2024)

Clearday, Inc.

(Exact Name of Registrant as Specified in Charter)

Delaware

0-21074

77-0158076

(State or Other Jurisdiction

of Incorporation)

(Commission

File Number)

(I.R.S. Employer

Identification Number)

8800 Village Drive, Suite 106, San Antonio, TX 78217

(Address of Principal Executive Offices) (Zip Code)

(210) 451-0839

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.001		CLRD		OTCQX

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 8.01 Other Events

As previously disclosed, certain subsidiaries (the “Naples Subsidiaries”) of Clearday, Inc. (the “Company” or “we”) and James Walesa, the Company’s Chief Executive Officer, are parties to litigation regarding the Company’s residential community in Naples, Florida. This litigation was referred to as the Benworth Action that was summarized in the Company’s Quarterly Report on Form 10-Q for the Quarterly Period ended September 30, 2023 that was filed by the Company with the Securities Exchange Commission on January 16, 2024 (the “Recent Quarterly Report”) in footnote 7 to the financial statements of the Company included in the Recent Quarterly Report. The Benworth Action arises from a default in the mortgage loan that was previously disclosed by the Company.

On February 5, a Final Judgement of Foreclosure (the “Judgement”) was entered in the Benworth Action. The Judgement provides for the total amounts due in favor of the plaintiff of $6,177,863.28, additional interest at the annual rate of 9.09% from the date of the Judgement, a lien on the property, and the scheduled date for a foreclosure sale of the property on April 4, 2024.

The Company is assessing its alternatives regarding this Judgement, including raising capital sufficient to redeem the property through a negotiated transaction. There can be no assurance that any transaction that would result in the Company raising sufficient capital or being able to redeem the property will be consummated on acceptable terms or at all.

This Current Report on Form 8-K contains only a brief description of the material terms of the Judgement entered into against the Naples Subsidiaries and Mr. Walesa, and does not purport to be a complete description of the rights and obligations of the parties thereunder, and such description is qualified in its entirety by reference to the full text of the Judgement which is attached as Exhibit 10.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

Forward Looking Statements

This communication contains forward-looking statements (including within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the Securities Act of 1933, as amended) concerning the Company. These statements may discuss goals, intentions and expectations as to future plans, trends, events, results of operations or financial condition, or otherwise, based on current beliefs of the management of the Company, as well as assumptions made by, and information currently available to, management. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors, including, without limitation: the risks regarding the Company and its business, generally; risks related to the Company’s ability to correctly estimate and manage its operating expenses and develop its innovate non-acute care businesses and the acceptance of its proposed products and services, including with respect to future financial and operating results; the ability of the Company to protect its intellectual property rights; competitive responses to the Company’s businesses including its innovative non-acute care business; unexpected costs, charges or expenses; regulatory requirements or developments; changes in capital resource requirements; and legislative, regulatory, political and economic developments. The foregoing review of important factors that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere, including the risk factors included in the Company’s most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC and the registration statement regarding the Company’s previously announced merger, that was filed and declared effective. The Company can give no assurance that the actual results will not be materially different than those based on the forward looking statements. Except as required by applicable law, the Company undertakes no obligation to revise or update any forward-looking statement, or to make any other forward-looking statements, whether as a result of new information, future events or otherwise.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

No.		Description
10.1		Final Judgement of Foreclosure against MCA Naples, LLC, a Tennessee limited liability company; James Walesa; John Doe and all others in possession, and MCA Naples Operating Company, LLC, a Tennessee limited liability company

104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

* Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	CLEARDAY, INC.

	By:	*/s/ James Walesa*
	Name:	James Walesa
	Title:	Chief Executive Officer

Dated: February 9, 2024

Exhibit 10.1

IN THE CIRCUIT COURT IN AND FOR COLLIER COUNTY, FLORIDA

A.A.D.A, INC., et. al.

Plaintiff,	CIRCUIT CIVIL DIVISION

V.	CASE NUMBER: 11-2023-CA-000243-000I-XX

MCA NAPLES, LLC, A TENNESSEE LIMITED LIABILITY COMPANY; JAMES WALESA; JOHN DOE AND ALL OTHERS IN POSSESSION, and MCA NAPLES OPERATING COMPANY, LLC,
A TENNESSEE LIMITED LIABILITY COMPANY

Defendants.

______________________________________________/

FINAL JUDGMENT OF FORECLOSURE

TIDS ACTION was heard before the Court on January 30, 2024 via Zoom hearing on Plaintiff’s Motion for Final Judgment of Foreclosure of Mortgage Non-Homestead Property, Docket Number 62. On the evidence presented, IT IS ORDERED AND ADJUDGED that:

The Plaintiff’s Motion for Final Judgment of Foreclosure is GRANTED against defendants MCA NAPLES, LLC, A TENNESSEE LIMITED LIABILITY COMPANY, JAMES WALESA, and JOHN DOE AND ALL OTHERS IN POSSESSION.

Amounts Due: There is due and owing to the Plaintiff the following:

Principal due on the note secured by the mortgage foreclosed:	$	4,550,000.00
Default Interest 9/1/22 to 1/30/24 (516 days)	$	1,608,083.04
Unpaid Late Charges	$	11,318.13
4/11/22 NSF Payment Charge	$	2,886.88
8/10/22 NSF Payment Charge	$	2,886.88
9/12/22 NSF Payment Charge	$	2,886.88
10/13/22 NSF Payment Charge	$	2,886.88
1/14/23 Certified Mail	$	4.78
Demand Fee	$	50.00
Wire Transfer Fee	$	15.00
Recording Fee	$	206.50
Attorney’s Fees	$	25,635.00
Costs	$	3,398.68
(Less Trust Account Balance	$	32,395.37	)
TOTAL	$	6,177,863.28

Interest. The grand total amount referenced in Paragraph 1 must bear interest from this date forward at the rate of 9.09% per annum, pursuant to the current judgment interest rates as the prevailing legal rate of interest.

Lien on Property. Plaintiff, whose address is c/o 7400 SW 57^th Court, Suite 202, South Miami, FL 33143, holds a lien for the grand total sum specified in Paragraph 1 herein. The lien of the plaintiff is superior in dignity to any right, title, interest or claim of the defendants and all persons, corporations, or other entities claiming by, through, or under the defendants or any of them and the property will be sold free and clear of all claims of the defendants. The plaintiff’s lien encumbers the subject property located in Collier County, Florida and described as:

PARCEL 1:

A FEE INTEREST IN A PORTION OF LOTS 13, 14, AND 15, NAPLES IMPROVEMENT CO’S LITTLE FARMS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

FROM THE SOUTHWEST CORNER OF LOT 12, NAPLES IMPROVEMENT CO’S LITTLE FARMS, AS RECORDED IN PLAT BOOK 2, PAGE 2, PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA, RUN N. 89 DEGREES 26’ 51” E., ALONG THE SOUTH LINE OF SAID LOT 12, FOR 20.00 FEET TO A POINT ON THE EAST RIGHT OF WAY LINE OF GOODLETTE-FRANK ROAD; THENCE RUN N. 00 DEGREES 39’ 49” W., PARALLEL WITH THE WEST LINE OF SAID LOT 12 FOR 10.00 FEET ALONG SAID EAST LINE OF GOODLETTE-FRANK ROAD; THENCE RUN N. 00 DEGREES 39’ 49” W., FOR 580.00 FEET ALONG SAID EAST LINE OF GOODLETTE-FRANK ROAD TO THE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED; THENCE CONTINUE N. 00 DEGREES 39’ 49” W., FOR 420.00 FEET ALONG SAID EAST LINE OF GOODLETTE-FRANK ROAD; THENCE RUN N. 89 DEGREES 20’ 11” E., FOR 196.54 FEET; THENCE RUN S. 30 DEGREES 28’ 42” E., FOR 396.02 FEET; THENCE RUNS. 59 DEGREES 31’ 18” W., FOR 153.66 FEET; THENCE RUNS. 89 DEGREES 20’ 11” W. FOR 260.12 FEET TO THE POINT OF BEGINNING.

PARCEL 2:

AN EASEMENT INTEREST IN AP ARCEL OF LAND LYING IN AND BEING PARTS OF LOTS 12 AND 13, NAPLES IMPROVEMENT CO’S LITTLE FARMS, AS RECORDED IN PLAT BOOK 2, PAGE 2, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF LOT 12, NAPLES IMPROVEMENT CO’S LITTLE FARMS, AS RECORDED IN PLAT BOOK 2, PAGE 2, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA; THENCE RUN ALONG THE SOUTH LINE OF SAID LOT 12, NORTH 89 DEGREES 26’ 51” EAST, 20.00 FEET; THENCE ALONG A LINE LYING 20.00 FEET EAST OF AND PARALLEL WITH THE WEST LINE OF LOTS 12 AND 13 OF SAID NAPLES IMPROVEMENT CO’S LITTLE FARMS, NORTH 00 DEGREES 39’ 49” WEST, 10.00 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL OF LAND; THENCE CONTINUE NORTH 00 DEGREES 39’ 49” EAST 580.00 FEET; THENCE SOUTH 89 DEGREES 20’ 11” WEST FOR 55.00 FEET TO THE POINT OF BEGINNING.

(BEARINGS ARE BASED ON THE WEST LINE OF LOT 12, NAPLES IMPROVEMENT CO’S LITTLE FARMS AS BEING NORTH 00 DEGREES 39’ 49”WEST.)

PARCEL 3:

TOGETHER WITH EASEMENT AS SET FORTH IN DRAINAGE EASEMENT RECORDED IN OFFICIAL RECORDS BOOK 2213, PAGE 1291, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.

NK/A: 2626 GOODLETTE-FRANK RD, NAPLES, FL 34105

Sale of Property. If the grand total amount with interest at the rate described in Paragraph 2 and all costs accrued subsequent to this judgment are not paid, the Clerk of the Court shall sell the subject property at public sale on April 4, 2024 at 11 A.M., to the highest bidder for cash, except as prescribed in Paragraph 6, in the lobby on the 3rd Floor of the Courthouse Annex in the Collier County Courthouse, 3315 Tamiami Trail East, Naples, FL 34112-5324, in accordance with Chapter 45 Florida Statutes, after having first given notice as required by Section 45.031, Florida Statutes. The Clerk shall not conduct the sale in the absence of the plaintiff or its representative. There shall be no allowable cancellations of sale.

Costs. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the Clerk if plaintiff is not the purchaser of the property for sale. If plaintiff is the purchaser, the Clerk shall credit plaintiff’s bid with the total sum with interest and costs accruing subsequent to this judgment, or such part of it, as is necessary to pay the bid in full. The Clerk shall receive the service charge imposed in Section 45.031, Florida Statutes, for services in making, recording, and certifying the sale and title that shall be assessed as costs.

Right of Redemption. On filing of the Certificate of Sale, defendant’s right of redemption as proscribed by Florida Statutes, Section 45.0315 shall be terminated.

Distribution of Proceeds. On filing the Certificate of Title, the Clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of the plaintiff’s costs; second, documentary stamps affixed to the Certificate; third, plaintiff’s attorneys’ fees; fourth, the total sum due to the plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 2 from this date to the date of the sale. During the sixty (60) days after the Clerk issues the certificate of disbursements, the Clerk shall hold the surplus pending further Order of this Court.

Right of Possession. Upon filing of the Certificate of Title, defendants and all persons claiming under or against defendants since the filing of the Notice of Lis Pendens shall be foreclosed of all estate or claim in the property and the purchaser at sale shall be let into possession of the property, subject to the provisions of the “Protecting Tenant At Foreclosure Act of 2009.” A Writ of Possession shall be issued upon Order of the Court.

Attorney Fees. The Court finds, based upon the affidavits presented and upon inquiry of counsel for the plaintiff that 43.4 hours have been reasonably expended by Daniel J. Mendez, 4.9 hours have been reasonably expended by Sergio L. Mendez, and 7.1 hours have been reasonable expended by the Paralegal in this cause and is appropriate. PLAINTIFF’S COUNSEL REPRESENTS THAT THE ATTORNEY FEE AWARDED DOES NOT EXCEED ITS CONTRACT FEE WITH THE PLAINTIFF. The Court finds that there are no reduction or enhancement factors for consideration by the Court pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).

10.

NOTICE PURSUANT TO AMENDMENT TO SECTION, 45.031, FLA. ST. {2006)

IF TIDS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO TIDS FINAL JUDGMENT.

IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPSENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, COLLIER COUNTY COURTHOUSE, 3315 TAMIAMI TRAIL EAST, STE.102 NAPLES, FL 34112-5324, WITHIN TEN (10) DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.

IF YOU DECIDED TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CARFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE OT TRANSFERRING YOUR PROEPRTY OF THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY FOR AN ATTORNEY, YOU MAY CONTACT LEGAL SERVICES OF COLLIER COUNTY, (239) 775- 4555, TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT LEGAL SERVICES OF GREATER COLLIER COUNTY FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF TIDS NOTICE.

11.

Jurisdiction. The Court retains jurisdiction of this action to enter further orders that are proper, including, without limitation, writs of possession and deficiency judgments.

Electronic Service List

Daniel Joseph Mendez <daniel@mendezandmendezlaw.com>

Daniel Joseph Mendez <service@mendezandmendezlaw.com>

Michael D. Randolph <michael.randolph@gray-robinson.com>

Michael D. Randolph <nadine.diamond@gray-robinson.com>

Cover	Feb. 09, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 09, 2024
Entity File Number	0-21074
Entity Registrant Name	Clearday, Inc.
Entity Central Index Key	0000895665
Entity Tax Identification Number	77-0158076
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	8800 Village Drive
Entity Address, Address Line Two	Suite 106
Entity Address, City or Town	San Antonio
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	78217
City Area Code	(210)
Local Phone Number	451-0839
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001
Trading Symbol	CLRD
Entity Emerging Growth Company	false