LaDainian Tomlinson battles home builder filing for bankruptcy

FILE - In this June 18, 2012 file photo, former San Diego Chargers running back and TCU star LaDainian Tomlinson speaks at a news conference at the Chargers facility in San Diego. Tomlinson was elected to the College Football Hall of Fame, Thursday, May 22, 2014. (AP Photo/Denis Poroy, File)

DALLAS (KXAN) – Six months after KXAN first aired its investigation into Bella Vita Custom Homes, LLC, the case against the custom home builder remains in limbo in federal bankruptcy court.

After paying initial deposits worth hundreds of thousands of dollars to Bella Vita Custom Homes with not much to show for it, dozens of homebuyers across Central Texas and the Dallas-Fort Worth metroplex are fighting to get their money back after the company filed for bankruptcy at the end of 2016.

One of Bella Vita's most high-profile clients was NFL Hall of Fame running back LaDainian Tomlinson and his wife, LaTorsha. Just like everyone else KXAN News has spoken to, they're trying to hold Bella Vita accountable, as well.

The Tomlinsons hired Bella Vita to build their $4 million dream home on their Westlake lot, outside the Dallas area in April of 2015. Shortly after work started, in July that year, construction crews punctured a water line, causing water to gush through the property. The couple says the company failed to notify them for days, possibly weeks.

The couple terminated the contract with Bella Vita in August of 2015. In September 2016, the couple was awarded a judgment of nearly $700,000.

The couple's attorney says the bankruptcy for Bella Vita Custom Homes CEO Andy Clem and his company should not go through. The attorney argues Bella Vita should not be granted a discharge of the debt owed because the company "knowingly and fraudulently presented a false claim" to the court.

Former San Diego Chargers running back LaDainian Tomlinson and his wife, LaTorsha Tomlinson, attend a news conference where the team announced he would be inducted into the Chargers' Hall of Fame and his jersey number retired, Thursday, June 11, 2015, in San Diego. (AP Photo/Lenny Ignelzi)

The attorney argues Bella Vita violated its contract with the couple because it failed to properly secure builder's risk insurance on the home that ultimately, it never finished.

"There were representations made to the Tomlinsons before they entered into the contract about what Clem and Bella [Vita] would do. The fraudulent allegations are that those representations were falsely made, and/or were false," explained attorney, Van Shaw. "Both of those are actionable conduct under the bankruptcy code."

In a bankruptcy trial proceeding held in federal court last month, on Aug. 23, LaDainian Tomlinson called out Clem in court.

Cameras were not allowed inside the courthouse, but KXAN attended the trial and obtained the audio recording of the proceedings.

"I feel like some of the things that were promised to us – I don’t think he had the intentions of getting it done," LaDainian Tomlinson testified.

The Tomlinsons said the contract also included an expectation that the couple would receive an itemized list of what money was being spent on their custom home project and how it was being spent. LaTorsha Tomlinson testified that the custom builder failed to provide that documentation, as mandated per the terms of their contract.

"I was just simply asking over and over for an exact -- where did every dollar go? I just wanted to know that it didn't go in somebody's pocket or on the lot down the road. I just wanted to know where it went," LaTorsha said on the stand. The couple’s attorney says they have only been able to account for $231,000 of $443,000 that was initially paid.

During the August trial, Clem testified that his company had a world-class team of custom home experts and that team likely contributed to where the unaccounted money went.

"I really thought we were good at this. We had a team approach to building custom homes," Clem testified. "You hear about the number of customers that weren't happy or that didn't go well, but for the first 125 homes we built, we did – we did a damn good job."

After the proceedings, KXAN tried to ask Clem about financial inconsistencies and insurance issues brought to light during court that day, however, Clem would not answer our questions.

Insurance Questions

For the first time in over two years, attorneys for Bella Vita and Clem told the court that they did, in fact, have a general liability insurance policy that could have covered the damages at the Tomlinson property then, and possibly other victims’ properties, as well. However, it became clear that the company never attempted to file any insurance claims or seek out the process.

During the August trial date, Clem’s attorneys entered documents into the court record that detail a possible policy. Clem’s attorney, Martin Keith Thomas, has yet to explain why this policy was never pursued at the time. He argues the insurance issues, however, are not a matter of fraud.

The judge was outraged by this revelation of possible new evidence, saying it is delaying the proceedings even further. The judge and all attorneys involved in the case are now working to determine whether any such policy actually existed since dozens of families have been under the impression that the company had no sort of insurance pay-out options and therefore, have been denied the opportunity to attempt to go after any of the money they lost to Bella Vita.

After this shocking revelation, the judge was ultimately forced to schedule yet another trial date in the case for Oct. 11, so Tomlinson's attorneys can re-examine Andy Clem on the stand about those supposed insurance claims and what the policies covered.

If the bankruptcy goes through, Clem would essentially have the opportunity to start over, with a clean financial slate.

How do you protect yourself before started a custom home construction project? The Better Business Bureau advises that consumers make sure a builder has builder’s risk insurance. The insurance protects construction material that might be lost, stolen, or damaged, and also covers damages while the project is in progress.

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