Federal prosecutors in North Carolina filed criminal fraud conspiracy charges against Beazer Homes USA on Wednesday, but they agreed to dismiss the case if the company complies with an agreement accepting responsibility for certain wrongdoing and pays millions to victims.
In the deferred prosecution agreement, the company accepted responsibility for fraudulent mortgage originations and accounting practices and agreed to pay $10 million immediately toward restitution to victims. Beazer also agreed to pay up to $50 million as the company, which has been battered by the housing downturn, recovers financially, according to prosecutors and court records.
The deferred prosecution agreement is in effect for five years. A spokeswoman for prosecutors, Suellen Pierce, said that the charges against the company will be dismissed if it complies with the agreement.
Beazer said Wednesday that it also reached a settlement agreement with the Department of Housing and Urban Development and the civil division of the Department of Justice. The company also said several of its subsidiaries have entered into a settlement agreement with the North Carolina Real Estate Commission.
Under the terms of the settlement agreement with HUD and the civil division of the Department of Justice, the company said it will make an immediate payment of $4 million to HUD to resolve civil and administrative investigations. In addition, on the first anniversary of the agreement, the company will make a $1 million payment to HUD.
"We deeply regret these matters and have used what we have learned to strengthen our control and compliance culture and reinforce our absolute commitment to act according to the highest standards of ethical conduct throughout our organization," Ian J. McCarthy, Beazer's president and chief executive officer, said in a statement.
In February 2008, Beazer exited the mortgage business and in May 2008, it completed the restatement of certain prior period financial statements and implemented changes in its internal controls over financial reporting.
The company said Wednesday's settlements will allow it to close "an unfortunate chapter in its history."
The Atlanta-based homebuilder has been under scrutiny for certain business and financial practices.
In a criminal information filed Wednesday in federal court in Charlotte, prosecutors accuse the company of accounting fraud conspiracy and mortgage fraud conspiracy.
One of the issues was Beazer's use of discount points on mortgage loans. Borrowers have the option to pay these points upfront to lower the interest rate.
Beazer Mortgage, however, and its coconspirators entered into a scheme between 2000 and 2006 to charge discount points without giving the borrower a bona fide reduction on the interest rate, according to prosecutors. In some cases, Beazer Mortgage kept some or all of the amount paid for discount points to increase its profit margin, the government said.
In some cases where discount points were charged and kept, Beazer Mortgage gave some employees a bonus of a few hundred dollars for exceeding its target profit margin with that particular loan, the government said.
Earlier Wednesday, the Securities and Exchange Commission said it had filed civil charges against the former chief accounting officer at Beazer Homes, accusing him of committing fraud and misleading company auditors.
In the SEC case filed in Atlanta, the agency said that Michael T. Rand of Sandy Springs fraudulently manipulated Beazer's reported quarterly and annual income in order to meet or exceed analysts' expectations and maximized yearly bonuses of certain officers and senior employees.
The SEC's complaint charges Rand with violations of the anti-fraud, reporting, books and records and internal control provisions of federal securities laws. It seeks a permanent injunction, disgorgement of ill-gotten gains and a financial penalty. The agency also is seeking a court order barring Rand from acting as an officer or director of any public issuer.
A message left by The Associated Press at a phone listing for Rand was not immediately returned Wednesday afternoon.
The slide in the U.S. housing market and investigations of the company's business practices have hampered Beazer for more than a year. The company has said it would stop building homes in several communities.
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