Real Estate Investing

4802 South Congress, Austin, TX – The Bend – Active Lawsuit

4802 South Congress, Austin, TX – The Bend

Another of developer Mitch Ely’s and Provenance Development’s developments caught up at some point in lawsuits.

This South Congress development was completed after the contract completion date, and all owners have up to 2 years after closing to sue as of the contract.

Are you an owner of a Bend Condo? The Good News is you can sue for damages up to 2 years AFTER CLOSING.

Please email for more detail

Case Excerpts

Here are excerpts from one violation claim:

“Mitch Ely, a licensed TREC realtor and broker is violating a contract for his own financial gain, involving “fraud or misrepresentation that involves a loss of money or property <$10,000”.

-Contract for the Bend Unit #511 effective date 02/10/2021 (see attached)

-Amendment for the contract signed 08/29/2021 by purchaser and seller that changed the purchase price to $341,250, and changed the completion date in section 7.01 to December 31st, 2023 (see attached). The seller at the time did cite Covid delays as the reason for needing to extend, and presented both parties with an extension to sign, and both parties signed to make the extension valid. Both parties signed and were ok with extending the completion date at that time.

-December 31st, 2023, the utilities and recreational facilities were still not complete, putting the seller in default.

-January 1st, 2024, Purchasers Mark and Polly sent an email to agents Jonathan and Annemarie, asking for earnest back due to seller default of seller in regard to the agreed and amended completion date of December 31st, 2023. (see attached email)

-In response Jonathan the agent responded via email saying “We have received your note. The Seller is not entertaining any termination requests at this time, and we have been informed that in the event of a termination by Purchaser, the Seller would at a minimum retain the earnest money. They also have the right to enforce specific performance per the agreement, which could include additional damages & penalties.”

-The seller’s lawyer then sent a response letter to Purchasers Mark & Polly saying they will release Mark and Polly from the contract if they sign to do so, but will keep earnest as they do not believe they are in default due to Covid supply chain delays (see attached). The completion date was originally pushed back to the agreed December 31st, 2023, due to Covid delays at a time when both parties also signed and agreed extend the contract completion date.

No agreement or extension was ever presented or signed to extend the completion date further.

The utility and recreational facility completion date in Section 7.01 was extended to December 31st, 2023, and it was not met.

The Seller is in default of their end of the agreement and is holding Mark and Polly’s earnest money against the contract and without their consent.

The Seller, Mitch Ely, a licensed TREC realtor and broker is violating TREC ethics by causing Level 2 harm to a consumer involving “fraud or misrepresentation that involves a loss of money or property <$10,000”.

Seller/realtor/broker Mitch intentionally never presented consumer Purchaser Mark Polly with a second amendment to extend the agreed completion date. This is intentional fraud and misrepresentation as he knew if he presented it, the Purchaser may not agree to extend, and he intentionally did this for his own financial gain at the detriment of the Purchaser, not allowing them the opportunity to have full information or transparency in a situation where Mark & Polly have more than $10,000 earnest at stake.

Specific TREC Violations in addition to Contract Violations:

As a precedent had been made by the production of the initial Amendment, this failure to provide a second amendment when further delays were clearly known constitutes a violation of TREC rules. The broker acted out his desire for his own personal gain and was not transparent or honest with the buyers concerning the status of the project, violating Section ‘531.2 Fidelity’ of the TREC License act, ‘that the license holder, in performing duties to the client, shall treat other parties to a transaction fairly’, fair treatment would be providing a second amendment with the option to sign once further delays had been realized. The act of not providing a second amendment with the option to sign when further delays were known also violates ‘the licence holder be faithful and observant to trust placed in the license holder, and be scrupulous and meticulous in performing the license holder’s functions’ as not providing the option to extend at that point is breaking the trust the consumer placed in the license holder to treat them fairly and consistently throughout the process, and, ‘the license holder place no personal interest above that of the client’, by failing to provide the consumer with the second opportunity to choose to extend or not the license holder treated the client unfairly and placed his own personal interest and financial gain above that of the client.
By not presenting a second amendment with an option to sign to extend or not when further delays were clearly known, when this had been done the first time due to covid, the license holder was also violating TREC ‘531.3 Integrity’ through an act of misrepresentation by omission.
§531.3 Integrity
A license holder has a special obligation to exercise integrity in the discharge of the license holder’s responsibilities, including employment of prudence and caution so as to avoid misrepresentation, in any way, by acts of commission or omission.

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