Note: This is the third story of four detailing the legal travails of Bella Vita Custom Homes, and the trail of dissatisfied customers, subcontractors and investors they left in the wake of their bankruptcy. You can keep up with the entire series here.
Lisa Brankin is an Austin-based Realtor who isn’t even sure she wants to be one anymore.
Brankin said she, her husband, and another couple, Brian and Elizabeth Boyer, formed a limited liability corporation called Belle Amici Properties LLC in order to invest with Bella Vita Custom Homes. The plan, she said, was to build a home in Spanish Oaks, a private golf community in Bee Cave, near Austin.
“They approached us and said they had an ‘investor program’ where they build us a home at ‘cost’ and then we (as owners) sell it,” she explained. “Whatever it sells for we then split the profit with them 50/50.”
“In essence, they were getting investors like us to finance all of their spec homes, creating the image that they were a cash-rich company,” Brankin said. “It was the perfect plan. They carried no debt or liability and had access to all of the cash.”
“They stole about $330,000 from us,” she continued. “They took our $100,000 deposit money and around $230,000 in draws from our loan for work on a house but never paid any of the workers who worked on our house.”
“We assumed that our lender was collecting lien releases from Bella Vita on every draw as a standard practice, but that was not happening,” Brankin added. “Luckily, hardly any of them filed liens on our property because they were afraid Bella Vita would stop sending them work.”
Eventually, things ground to a halt though. “We had a home that was about 90 percent framed but then they all of a sudden (work) stopped,” Brankin said. “I found out why. They owed Stock Building Supply tons of money for several jobs so they cut them off — so our home stopped because they couldn’t access any more lumber.”
Brankin said that the four decided to fire the builder, which was also expensive. Add to that interest on the loan for the build that’s been accruing, and Belle Amici Properties is out a hefty chunk of change.
“We had to accrue attorney fees to go through the process of firing them and get out of our contracts due to their breach of the contract,” Brankin explained, “then reapply for more financing to finish the home.”
“So not only did we lose the $330,000 they stole, we incurred attorney fees and now more costs to rip off the rotted roof that sat exposed for months, along with fixing a ton of framing that their (the Clem’s) company, K5 Framing, did wrong.”
“We will also incur another year’s worth of interest on the loan ($50,000 to $60,000) to finish the house,” Brankin said. “It has been a nightmare but we are finally moving forward on the house just in the last week. We are hoping to sell it quickly and minimize our losses.”
An Unfair Advantage
Brankin said that even more than the money, she feels like contractors and builders have an unfair advantage that she doesn’t get as a Realtor.
“I’m a Realtor that moved to Austin from Chicago area about three years ago,” Brankin said. “This has been a very expensive lesson for us on how messed up Texas real estate law is as it applies to builders.”
“I had no idea they didn’t need to be licensed and were not overseen by a governing entity,” she continued. “As a Realtor, I have to be licensed and am overseen by the National Association of Realtors, Texas Real Estate Commission, Austin Board of Realtors, and my broker.”
“I just had to do 128 continuing education hours to renew my license.”
The disparity in requirements angers Brankin.
“Seriously — who is the ignorant one?” she asked, rhetorically. “Me, for spending a ton of money and time every year to comply with my licensing requirements and work under laws that protect the consumer over me as an agent, or any John Doe that can walk into the Secretary of State’s office here in Austin and pay a few bucks to file to become a builder, and then go out and take hundreds of dollars in deposit money the next day from people who believe I’m legit?”
“It’s really frustrating,” Brankin continued. “I don’t even want to sell real estate anymore. There’s more liability and risk for me to get sued than the builder who is building my client’s home.”
Brankin said that as people hear about her experience, they frequently share stories about their dealings with contractors and builders.
“I had a neighbor tell me that a local pool company stole $300,000 from him and didn’t pay the workers, and then abandoned his huge project midstream and filed bankruptcy,” she said. “He never got his money back.”
More Investors Waiting for Money
Paul Billings filed suit against Mike and Andy Clem and Bella Vita after a lot purchase agreement for four lots located in Benbrook and Austin went south.
“Bella Vita is a custom home-builder which had insufficient capital to purchase lots to be held for future construction,” Billings’ suit said. “Therefore Bella Vita contracted with Plaintiff, via the Lot Purchase Agreements, for Plaintiff to purchase lots designated by Bella Vita.”
“Bella Vita held the exclusive right to purchase the lots from Plaintiff for the price and terms set forth in the Lot Purchase Agreements.”
According to the suit, the terms of the agreement between Billings and Bella Vita required the builder to pay for things like insurance, HOA dues, lawn maintenance, and taxes, as well as expenses Billings might experience from purchasing and then selling the lots, including closing costs.
“If Bella Vita failed to repurchase a lot within the time frame set forth in the Lot Purchase Agreement, Plaintiff was allowed to sell the lot to any third party for such price as Plaintiff deemed acceptable,” the suit continued. “If the price paid by the third party was less than the agreed upon profit, interest and expense reimbursement set forth in the Lot Purchase Agreement, Bella Vita was required to pay Plaintiff such deficit.”
Billings apparently sold the lots in accordance with the agreement and then expected Bella Vita to pay up their part of the expenses incurred during the sale.
“After the sale of such lots to third parties and allowing all credits, offsets, and allowances to account for amounts payable by Defendants to Plaintiff per the Lot Purchase Agreements, Bella Vita and Steven Clem remain jointly and severally liable to Plaintiff in the amount of $155,537.00 as of April 30, 2016,” the suit said.
A default judgment was rendered for the full amount, and the judgment noted that the Clems, despite being served, did not appear in court.
Michael Wilkov filed suit last September. In his suit, he alleged, “On February 15, 2016, Bella Vita Custom Homes issued a promissory note to Plaintiff in the original principal amount of $1,000,000.00, bearing interest at an initial annual rate of 11 percent and at a default rate of 18 percent, and maturing on February 15, 2020.”
Wilkov said in the suit that Andy and Mike Clem “personally and unconditionally guaranteed” payment of the note. The terms required 27 monthly installments of $25,845.52 each, beginning in March 2016 and ending February 15, 2020.
“Bella Vita made one payment on the Note in the amount of $25,845.52 on March 20, 2016, and a second payment on the Note in the amount of $25,845.52 on May 2, 2016,” the suit said. “Bella Vita has not made any further payments on the Note since May 2, 2016.”
“As of August 26, 2016, the outstanding principal amount of the Note together with all accrued and unpaid interest thereon was $1,006,481.27.”
Wilkov sent a demand letter on Aug. 15, 2016, he said in the suit. The court found in his favor February 20, 2017.
Subcontractors and Vendors Paid Slowly, or Not at All
But investors aren’t the only ones left holding the bag or dealing with slow payments from Bella Vita. CandysDirt.com found several suits filed by subcontractors and vendors, including Trinity Hardwoods, which sued for $9,529.47 and Go Green Geothermal, which won a judgment of $26,569 for unpaid work.
Concrete contractor Leland Pennington Inc. sued Bella Vita, Brooktexlyn LLC, and Jennifer and Greg Roslund for unpaid concrete work on homes in Southlake and Dallas. The Roslunds settled with the company out of court.
“Leland Pennington, Inc. contracted with Bella Vita Custom Homes, LLC to provide concrete construction work for incorporation into multiple construction projects,” the company said it its suit. “Leland Pennington, Inc. supplied the construction work but was not paid within the time frame allowed Bella Vita Custom Homes, LLC.”
The suit alleged, “Michael S. Clem and Steven A. Clem (Andy) misapplied (construction) Trust Funds by retaining, using, disbursing or otherwise diverting them without first fully paying Leland Pennington, Inc.”
The suit sought payment in the sum of $168,279.79, plus legal fees.
The company was also sued by Mid-Continent Casualty Company for allegedly not paying the premiums on their commercial general liability insurance policy. The suit filed by the company won a judgment of $21,916, plus legal fees.
The suit also alleged that the Clems entered into a promissory note in early 2016, agreeing to pay $4,611.83 per month, beginning on February 1. “Defendants made one payment on February 1, 2016,” the suit reads. “Defendants made no further payments and defaulted in the obligations under the Promissory Note.”
Another subcontractor took to Facebook to complain. “I had to collect thousands from some of these same customers on bills that were already paid to Bella Vita Custom Homes,” Michael Grose wrote. “If you’re building a home, you better get to the job site and get to know the subcontractors. We’ll let you know quick if your bills are being paid.”
“Too much trust given to a dishonest builder = shattered dreams and pocket books!” he continued. “BVCH still owes me thousands.”
“The Threat of the Lien Produced a Check”
Sloan, who owns a company that has subcontracted with Bella Vita a few times, said she feels lucky now – she eventually got paid by Bella Vita. She asked that her name and her company’s name be withheld out of business concerns.
“We got out pretty lucky,” Sloan said. “We got paid eventually – we didn’t do a whole lot of jobs, but we did a lot of estimates.”
“We didn’t do anything for them for a long time, and then we did a few houses,” she recalled. “We did this one job that was close to 60 days before we got paid – and it was the last job we did for Bella Vita.”
“Most good builders pay you in 15 days,” Sloan explained. “Everybody is getting their draws once a week – there’s really no reason to go beyond 30 days.”
But getting paid took some difficult conversations. “I got into a couple of cussing matches over the phone with them,” she said. “The threat of the lien produced a check.”
So why have so many subcontractors found themselves waiting for payment for thousands of dollars worth of work done for Bella Vita?
“I think as subs, you kind of get invested with builders,” Sloan said. “For the most part they are all good, they all pay on time. And then like with Bella Vita, you see plans and they look like they know what they’re doing, and they like to piggyback the jobs, so you end up having a lot of money tied up with them.”
She also said that filing a lien isn’t something most subcontractors want to do. “We don’t have a lot of time to make the decision about filing a lien,” she said. “And you want to believe the builder. They’ll spin the story about why they can’t pay – the homeowner isn’t signing the draws, things like that.”
Echoing Grose, Sloan said showing up unexpected at the build site is one of the few ways a homeowner can keep tabs on their builder and their construction fund. “Be more involved with the builders,” she said. “Show up on the job site, and ask if they’ve been paid, and if they’re getting paid on time.”
Sadder, But Wiser
After explaining what happened to her, Brankin said that potential investors, homeowners, and subcontractors should learn from her experience, and probe their prospective builders more. “You need to warn other investors about this,” she said. “I found out in this process that most custom builders have no real money themselves.”
“They all use investors to build their spec homes,” Brankin continued. “This could happen to any of them. Usually, the investor knows nothing about real estate – so they are trusting the builder 100 percent to be ethical.”
(Bethany Erickson has been researching Bella Vita Custom Homes and other builders in a months-long investigation that included uncovering at least 20 victims in the Dallas-Fort Worth area alone. In the course of writing this story, Erickson found several families that sued Bella Vita, and some of those filings are included below. This story is the second in an initial four-part installment of what will be an ongoing series. Tomorrow’s story will look at Bella Vita’s bankruptcy filing, and what legal options victims have. Do you have a story to tell about your home building or renovation experience? Email email@example.com.)
Several families, subcontractors, and investors have sued Bella Vita Custom Homes. Here are two of the suits in today’s story: