Borohov v. Everhome Mortgage Company

Filing 45

AMENDED MEMORANDUM, ORDER, & JUDGMENT: The plaintiff's motion for summary judgment is denied. The defendant's motion for summary judgment is granted. The complaint is dismissed. Costs and disbursements are awarded to the defendant. Ordered by Judge Jack B. Weinstein, on 3/11/2014. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DANI BOROHOV,

AMENDED
MEMORANDUM, ORDER, &
JUDGMENT

Plaintiff,
-against-

FilED

13-CV-3117

IN CLERK'S OFFICE
U .S . DISTRICT COURT E.D.N.Y.

EVERHOME MORTGAGE COMPANY,

*

Defendant.

MAR 1 1 2014

BROOKLYN OFFICE

JACK B. WEINSTEIN, Senior Un'ited States District Judge:

In 2001, plaintiff obtained a $125,000 loan from BNY Mortgage Company. The loan was
secured by a IS-year mortgage, which was held by Mortgage Electronic Registration Systems,
Inc. ("MERS"), as nominee for BNY. MERS assigned the mortgage to Everhome Mortgage
Company, now merged with EverBank, in 2011. Th~ Federal National Mortgage Association
('~FNMA"

*

or "Fannie Mae") owns the loan, and EverBank services it.

Plaintiff sues Everhome for fraud, unjust enrichment, and quiet title. He alleges that
Everhome misled him into making payments to Everhome by presenting him with ( 1) the
assignment of the mortgage; and (2) a response to a Qualified Written Request. Both documents
indicate that mortgage payments are to be made to Everhome. This, according to plaintiff, led to
Everhome's unjust enrichment and the interference with plaintiffs property rights.
The claim for fraud is dismissed. Defendants have shown that the loan is owned by Fannie
Mae and serviced by EverBank. See Def.'s Reply in Supp. of Mot. Summ. J, Exh. B. Contrary
to plaintiffs argument, see Pl.'s Opp. To Def.'s Reply in Supp. of Mot. Surnm. J., the documents
provided by Fannie Mae and EverBank are sufficient to demonstrate this point.

1

The complaint fails to indicate how any ofEverhome's actions constitute misrepresentation
or intent to defraud. Everhome acted pursuant to its agreement with MERS and the FNMA, as
well as in accordance with standard industry practice.
The plaintiff cannot show unjust enrichment. Since the origination of the loan, plaintiff had
been making payments, with intermittent defaults, to Everhome. Everhome properly credited
these payments against his debt. That claim is dismissed.
The claim for quiet title fails. Everhome maintains a sec\irity interest in the property because
plaintiff has not paid offhis mortgage.
The plaintiff's motion for summary judgment is denied. The defendant's motion for
summary judgment is granted.
The complaint is dismissed. Costs and disbursements are awarded to the defendant.

enior United States District Judge
Date: March 11, 2014
Brooklyn, New York

2