Justin G. Lubbers, Et Al. V. Flagstar Bancorp, Inc., Et Al. 14-CV-13459
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2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 1 of 60 Pg ID 197 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN JUSTIN G. LUBBERS, Individually and : Civil Action No.: 14-cv-13459 : on Behalf of All Others Similarly Situated, : AMENDED COMPLAINT Plaintiff(s), : v. : : Hon. Bernard A. Friedman FLAGSTAR BANCORP INC., : ALESSANDRO P. DINELLO, and : Hon. Mona K. Majzoub PAUL D. BORJA, : Defendants. : JURY TRIAL DEMANDED : Lead Plaintiff Rodney Boone (“Plaintiff”), individually and on behalf of all other persons similarly situated, by his undersigned attorneys, for his complaint against defendants, alleges the following based upon personal knowledge as to himself and his own acts, and information and belief as to all other matters, based upon, inter alia, the investigation conducted by and through his attorneys, which included, among other things, a review of the defendants’ public documents, conference calls and announcements made by defendants, United States Securities and Exchange Commission (“SEC”) filings, wire and press releases published by and regarding Flagstar Bancorp Inc., (“Flagstar” or the “Company”), analysts’ reports and advisories about the Company, interviews with Confidential Witnesses (“CW”) and information readily obtainable on the Internet. Plaintiff believes that substantial evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery. 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 2 of 60 Pg ID 198 NATURE OF THE ACTION 1. This is a federal securities class action brought on behalf of all persons and entities that purchased shares of Flagstar Bancorp Inc. (“Flagstar” or the “Company”) common stock during the period of October 22, 2013 through August 26, 2014, both dates inclusive (the “Class Period”), against Flagstar and certain of its officers and/or directors for violations of the Securities Exchange Act of 1934 (the “Exchange Act”). 2. Flagstar is the holding company for Flagstar Bank, FSB (“Flagstar Bank”). Flagstar Bank accepts deposits from the general public and originates or acquires residential mortgage loans. Flagstar Bank’s primary business is its mortgage banking segment. As part of its mortgage banking segment, Flagstar Bank originates mortgage loans and acts as a mortgage servicer responsible for the day-to-day management of mortgage loans. In the capacity of servicing mortgages, Flagstar Bank offers loan modifications to borrowers experiencing financial difficulties in making loan payments. Flagstar Bank also administers “loss mitigation” programs to delinquent borrowers on behalf of the owners or guarantors of the loans. 3. During the Class Period, Flagstar Bank was being audited and reviewed by the Consumer Financial Protection Bureau (“CFPB”) for years of failing to comply with mortgage lending requirements, specifically loss mitigation 2 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 3 of 60 Pg ID 199 and default servicing. As early as 2011, representatives of the Federal National Mortgage Association (“Fannie Mae”) and Federal Home Loan Mortgage Corporation (“Freddie Mac”), Government Sponsored Entities (“GSE”) that provides liquidity and stability for the mortgage market in the United States, had been threatening Flagstar Bank with termination rights for servicing loans owned or guaranteed by Fannie Mae and Freddie Mac in violation of consumer protection laws. 4. Administering loan modifications and loss mitigation services is regulated under the Consumer Financial Protection Act of 2010 (the “CFPA”). Prior to and during the Class Period, Flagstar Bank violated the CFPA’s prohibition against unfair, deceptive, or abusive acts or practices by, inter alia: • Failing to review loss mitigation applications in a reasonable amount of time; • Withholding critical information that borrowers needed to complete their loss mitigation applications; • Improperly denying loan modifications to qualified borrowers; • Applying prolonged trial periods for loan modifications; • Depriving borrowers of the ability to make informed choices about how to save or dispose of their property; • Improperly closing loss mitigation applications; • Improperly denying loan modifications to eligible borrowers; • Charging borrowers excessive capitalized interest and fees; and, 3 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 4 of 60 Pg ID 200 • Misrepresenting borrowers’ rights to appeal the denial of a loan modification. 5. As evidenced by testimony from Confidential Witnesses – and verified by the Findings and Conclusions of the CFPB noted in a Consent Order entered into between Flagstar Bank and the CFPB – unfair, deceptive, or abusive acts or practices were notorious and rampant within Flagstar Bank. Regardless, throughout the Class Period, Defendants told the investing public that Flagstar Bank’s mitigation activities were “effective,” “proactively worked with borrowers,” “adopted a strategic focus that improved loss mitigation processes.” Indeed, Defendants conditioned the market to believe in the effectiveness of its loan modification and loss mitigation services prior to and during the Class Period stating that it had converted to a nationally recognized mortgage loan servicing system and made significant investments and enhancements in loss mitigation and default servicing, when, in fact, Flagstar Bank’s mortgage servicing continually failed to comply with the requirements of the CFPA. 6. Accordingly, throughout the Class Period, Defendants made materially false and/or misleading statements, and failed to disclose material adverse facts about the Company’s business, operations, prospects, performance, and compliance with federal law. Specifically, during the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (i) dating back to 2011, the Company’s loss mitigation practices and default servicing 4 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 5 of 60 Pg ID 201 operations were not in compliance with federal financial consumer protections laws; (ii) the Company lacked proper internal controls to assure compliance with federal financial consumer protection laws; (iii) that it was at risk of having its rights to servicing loans owned by or guaranteed by GSEs terminated; and (iv) that the CFPB was investigating and/or bringing an action against Flagstar Bank for violations of the CFPA going back as early as 2011. 7. Moreover, when Defendants chose to speak about Flagstar Bank’s mortgage servicing, and specifically about loss mitigation and default servicing, Defendants failed to speak completely and tell the whole truth about Flagstar Bank’s inability and failure to comply with financial consumer protection laws, the threats to terminate the bank’s rights, and the risk that the CFPB’s enforcement procedures had on the bank’s financial condition. 8. The omissions and affirmative misrepresentations disseminated by Defendants about the true nature of Flagstar Bank’s loss mitigation and default servicing practices during the Class Period artificially maintained the price of Flagstar common stock during the Class Period violation of the Exchange Act. 9. On August 26, 2014, the Company made the first of a series of partial disclosures regarding their violations of the CFPA, when Defendants informed the public that it was in discussions with the CFPB over alleged violations dating back to 2011. 5 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 6 of 60 Pg ID 202 10. In reaction to that partial disclosure, Mark Palmer, an analyst at BTIG, downgraded its rating on Flagstar to sell, noting that the “allegations raise questions regarding servicing operations amid uncertainty of potential rebound of its mortgage business.” 11. On this news, Flagstar stock fell, on unusually heavy trading volume, to close at $17.66 on August 27, 2014 from the previous day’s closing price of $18.49 per share. 12. Over the next day, news filtered through the market that Flagstar’s unusual disclosure meant that a settlement with the CFPB was “imminent,” as the priced continued to decline to $17.33 per share. 13. As a result of disclosures of Defendants’ wrongful acts and omissions, and the attendant decline in the market value of Flagstar common stock, Plaintiff and other Class members have suffered significant losses and damages. JURISDICTION AND VENUE 14. The claims asserted herein arise under and pursuant to §§10(b) and 20(a) of the Exchange Act (15 U.S.C. §§78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by the SEC (17 C.F.R. §240.10b-5). 15. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §1331 and §27 of the Exchange Act. 6 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 7 of 60 Pg ID 203 16. Venue is proper in this District pursuant to §27 of the Exchange Act (15 U.S.C. §78aa) and 28 U.S.C. §1391(b), as a significant portion of the Defendants’ actions, and the subsequent damages, took place within this District. 17. In connection with the acts, conduct and other wrongs alleged in this Complaint, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including but not limited to, the United States mail, interstate telephone communications and the facilities of the national securities exchange. PARTIES 18. Lead Plaintiff purchased the common stock of Flagstar at artificially inflated prices during the Class Period and was damaged upon the disclosure of Defendants’ violations of the Exchange Act alleged herein. 19. Defendant Flagstar is a Michigan corporation with its principal executive offices located at 5151 Corporate Drive, Troy, MI 48098-2639. Flagstar’s common stock trades on the New York Stock Exchange under the ticker symbol “FBC.” 20. Defendant Alessandro P. DiNello (“DiNello”) has served as the Company’s President and Chief Executive Officer at all relevant times. 21. Defendant Paul D. Borja (“Borja”) has served as the Company’s Executive Vice President and Chief Financial Officer at all relevant times. 7 2:14-cv-13459-BAF-MKM Doc # 17 Filed 02/03/15 Pg 8 of 60 Pg ID 204 22.