The following is the decision, order and judgment after a non-jury trial in the instant action to foreclose a mortgage brought by plaintiff GMAT Legal Title Trust 2014-1, U.S. Bank, National Association, as Legal Title Trustee (hereinafter plaintiff or GMAT) against defendant Mimi Kator (hereinafter defendant of Kator).

On March 3, 2015, GMAT commenced the instant action to foreclose a mortgage by electronically filing, among other things, a summons, complaint, notice of pendency and a certificate of merit pursuant to CPLR 3012-B (hereinafter the commencement papers) with the Kings County Clerk's Office (KCCO). The complaint contains twenty-two allegations of fact in support of a single cause of action to foreclose a mortgage. The complaint alleges in pertinent part the following salient facts. On June 21, 2006, Kator executed a note (hereinafter the subject note) in favor of GMAT's assignor or predecessor in interest in the amount of $435,500.00. On the same day, Kator executed a mortgage (hereinafter the subject mortgage) to secure the note encumbering certain real property in Kings County. Kator allegedly defaulted on the note and mortgage by not making payments that became due on October 1, 2006 or thereafter. GMAT sent a notice of default to Kator dated July 28, 2014. On May 27, 2014, GMAT also sent Kator a notice in compliance with RPAPL 1304. GMAT stated that pursuant to an acceleration provision contained in the subject note and mortgage, GMAT had elected to accelerate the whole of the principal sum due. Kator allegedly failed to cure the alleged default.

On April 1, 2015, Kator joined issue by electronically filing an answer with the KCCO. The verified answer asserts fifteen affirmative defenses. As relevant here, the second affirmative defense alleges that GMAT lacks standing and the fifteenth affirmative defense alleges that the action is time barred.

A non-jury trial was conducted on November 26th, 27th and 28th, of 2018. Roger Martin and Kator were the only witnesses who testified. Roger Martin (hereinafter Martin) testified on behalf of GMAT and described himself as the assistant secretary, a custodian of the records and the attorney in fact for Rushmore Loan Management, LLC (hereinafter Rushmore). He further testified that Rushmore was the mortgage loan servicer for GMAT. Kator testified on her own behalf.

GMAT admitted eight exhibits into evidence. Exhibit 1 was a copy of the instant commencement papers. Exhibit 2 was a copy of an affirmation that GMAT had previously submitted in support of a motion for summary judgment. Exhibit 3 was a copy of summons and complaint bearing Index Number 17185/2007 (hereinafter the 2007 action). The 2007 action was commenced by Saxon Mortgage Services Inc., as plaintiff, against Kator. Exhibit 4 was a copy of the answer that Kator interposed in the 2007 action. Exhibit 5 was a copy of the affidavit of service of the commencement papers of the instant action on Kator. Exhibit 6 was a copy of a Notice of Intent to foreclose the subject mortgage. Exibit 7 was offered and then withdrawn by [*2]GMAT. Exhibit 8 was described by Martin as computer records of Rushmore. Exhibit 9 is a document containing unsworn statements by Kator that she signed on December 31, 2007 before a notary public.

Kator admitted three documents into evidence. Exhibit A is a certified copy of the papers filed on October 18, 2013 with the KCCO on a foreclosure action commenced by Consumer Solutions against Kator under Index Number 18547/2013. Exhibit B is a letter notifying Kator of her alleged default. Exhibit C is a certified copy of the affidavit of service of the commencement papers on Kator in the 2007 action. Pursuant to CPLR 4213, the parties were afforded an opportunity to submit proposed findings of fact and post trial memorandums of law and in fact did so.

The Court makes the following findings of fact:

1. On June 21, 2006 Kator executed and delivered to Home123 Corporation, (hereinafter Home) the subject note in the amount of $453,500.00. On the same day, Kator executed and delivered the subject mortgage to Home to secure the subject note. The subject mortgage encumbered Kator's property located at 164 Atkins Avenue, Brooklyn, New York, Block 4006 Lot 25 (hereinafter the subject property).

2. On June 8, 2007 the subject mortgage was assigned to Saxon Mortgage Services Inc. (hereinafter Saxon). The Assignment stated that it was effective as of May 14, 2007.

3. On June 8, 2008, the subject mortgage was assigned to Consumer Solutions REO, LLC.

4. On May 21, 2012, the subject mortgage was further assigned to Consumer Solutions, LLC.

5. A further assignment of the subject mortgage was made by Consumer Solutions, LLC to GRA Legal Title Trust II 2013-1, U.S. Bank, National Association, as Legal Title Trustee.

6. On May 5, 2014 the subject mortgage was assigned to GMAT.

7. The allonge from Consumer Solutions to GRA was signed by Kathleen Collins who was a senior vice president of Meridian Assets Solutions Inc.

8. On May 15, 2007, Saxon filed a summons and complaint (hereinafter the 2007 complaint) against defendant bearing Index No. 17185/2007, to foreclose on the subject note and mortgage on the subject property located at 164 Atkins Avenue, Brooklyn, New York.

9. Saxon alleged in paragraph eleven of the 2007 complaint that it was the owner and holder of the subject note and mortgage.

10. Saxon declared in paragraph seven of the 2007 complaint that it elected to accelerate the entire amount due on the subject note and mortgage.

11. The 2007 action was discontinued on October 4, 2013.

12. The instant action was commenced on March 3, 2015.

In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default (Zarabi v Movahedian, 136 AD3d 895, 895 [2nd Dept 2016]). Where the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must establish its standing to be entitled to relief (see U.S. Bank N.A. v Godwin, 137 AD3d 1260, 1261 [2nd Dept [*3]2016]).

A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1015 [2nd Dept 2012]. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (Dyer Trust 2012—1 v Global World Realty, Inc., 140 AD3d 827, 828 [2nd Dept 2016]).

GMAT introduced the subject note and subject mortgage into evidence. GMAT offered, among other things, the testimony of Martin in support of its claim that Kator defaulted on her obligations under the subject note and mortgage.

Martin testified that he is the assistant secretary, a custodian of the records and the attorney in fact for Rushmore. He further testified that Rushmore was the mortgage loan servicer for GMAT. Martin did not state, however, when Rushmore became the attorney in fact for GMAT. Nor was any documentary evidence submitted demonstrating the attorney in fact relationship. Martin did not state that Rushmore was the servicer for either Consumer Solutions REO, LLC, Consumer Solutions, LLC, or GRA Legal Title Trust II 2013-1, U.S. Bank, National Association, as Legal Title Trustee. In fact, Martin did not identify what entities, if any, serviced the subject note and mortgage for Home, Saxon or any of the aforementioned assignees who were the predecessor in interest to GMAT.

GMAT contends that Martin's testimony established Kator's default. Martin's testimony is based on Rushmore's computer records and business records. He testified that Rushmore integrated the business records of other unidentified entities that had been boarded into Rushmore's computer system. He testified that it was Rushmore's business to verify the boarded information and relied upon it to conduct its business. He did not explain the verification process.

When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, a proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures (U.S. Bank Nat'l Ass'n v. Kochhar,—-AD3d—-, 2019 NY Slip Op 07439 [2nd Dept 2019]). While Martin did attest that he was personally familiar with Rushmore's record-keeping practices and procedures, it is clear that Kator's default occurred in 2006, long before GMAT became the holder of the subject note. As an officer of Rushmore, GMAT's servicer, Martin did not identify whose records were incorporated into Rushmore's own records or routinely relied upon in its business (cf. Tri—State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782—783 [2nd Dept 2019]).

Accordingly, Martin failed to lay a proper foundation for the admission of records concerning Kator's payment history and default under the business records exception to the hearsay rule (see CPLR 4518 [a]; Federal Natl. Mtge. Assn. v Marlin, 168 AD3d 679, 681 [2nd Dept 2019]). Consequently, his testimony regarding Kator's alleged default in 2006 lacks an evidentiary foundation and is disregarded. GMAT has failed to make a prima facie showing of entitlement to a judgment of foreclosure.

With regard to whether the instant action was time barred, the following analysis applies. [*4]The following facts are undisputed. On May 15, 2007, Saxon commenced the 2007 mortgage foreclosure action by filing, among other things, a summons and complaint with the KCCO, based on Kator's alleged default on the subject note and mortgage on the subject property. Kator was served with the commencement papers for the 2007 action. Saxon declared in paragraph seven of the 2007 complaint that it elected to accelerate the entire amount due on the subject note and mortgage. Saxon alleged in paragraph eleven of the 2007 complaint that it was the owner and holder of the subject note and mortgage. The 2007 action was commenced by Saxon to foreclose the same subject mortgage secured by the same subject real property for the same default in payment by Kator which is the subject of the instant foreclosure action. On March 3, 2015, GMAT commenced the instant mortgage foreclosure action, by filing, among other things, a summons and complaint with the KCCO, based on Kator's alleged default on the subject note and mortgage on the subject property.

Kator contends that the instant mortgage foreclosure action is time barred.

Actions to foreclose a mortgage are governed by a six-year statute of limitations (see CPLR 213 [4]; Milone v U.S. Bank N.A., 164 AD3d 145, 151 [2nd Dept 2018]). Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt (Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986 [2nd Dept 2016] quoting EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2nd Dept 2016]).

An acceleration of a mortgage debt may occur in different ways. One way is in the form of an acceleration notice transmitted to the borrower by the creditor or the creditor's servicer. To be effective, the acceleration notice to the borrower must be clear and unequivocal (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867 [2nd Dept 2016]). A second form of acceleration, which is self-executing, is the obligation of certain borrowers to make a balloon payment under the terms of the note at the end of the pay-back period (see Trustco Bank NY v 37 Clark St., 157 Misc 2d 843, 844 [Sup Ct, Saratoga County 1993]). A third form of acceleration exists when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476 [1932]; Clayton Natl. v Guldi, 307 AD2d 982 [2nd Dept 2003]).

Kator contends that the the six-year statute of limitations (see CPLR 213 [4]) began to run on the entire debt on May 15, 2007, when Saxon, the plaintiff's predecessor in interest commenced the prior foreclosure action (see Freedom Mtge. Corp. v Engel, 163 AD3d 631, 632 [2nd Dept 2018]). Since GMAT did not commence the instant foreclosure action until March 3, 2015, which was more than six years after Saxon accelerated the subject note and mortgage debt, Kator has met her initial burden of demonstrating, prima facie, that the instant action was untimely (see Federal National Mortgage Association v Schmitt, 172 AD3d 1324-1325 [2nd Dept 2019]; see also Milone, 164 AD3d at 153).

It is now well settled, that an acceleration of a mortgaged debt, by either written notice or the commencement of an action, is only valid if the party making the acceleration had standing at that time to do so (see U.S. Bank N.A. v Gordon, 158 AD3d 832 [2nd Dept 2018]; Stewart Tit. Ins. Co. v Bank of NY Mellon, 154 AD3d 656, 663 [2nd Dept 2017]).

GMAT contends that Saxon lacked standing to accelerate the subject note and mortgage. Since Kator has made a prima facie showing that the action is time barred it is GMAT's burden to [*5]show that Saxon's act of acceleration by commencement of the 2007 action did not accelerate the debt on the subject note and mortgage. However, that contention is based on, among other things, Rushmore's business records and Martin's testimony. As previously indicated, the allegedly incorporated business records of other entities are not admissible under the business records expectation of the hearsay rule. Therefore, Martin's testimony which relies on those inadmissible business records is also inadmissible. Moreover, GMAT did not establish that Saxon lacked standing to commence the 2007 action. The evidence submitted did not establish that Saxon was neither the holder nor the assignee of the subject note before the 2007 action was commenced. The 2007 action accelerated the subject note and the instant foreclosure action was commenced more than six years after the debt on the subject note was accelerated. It is, therefore, time barred. In light of the foregoing, the Court need not address Kator's claim asserted in the fourth and fifth affirmative defenses alleging that GMAT has failed to comply with RPAPL 1304 and 1306.

In the instant action to foreclose a mortgage brought by plaintiff GMAT Legal Title Trust 2014-1, U.S. Bank, National Association, as Legal Title Trustee against defendant Mimi Kantor, it is the decision, order and judgment of this Court after a non-jury trial for the reasons set forth herein that the instant mortgage foreclosure action is dismissed based on the plaintiff's failure to make a prima facie showing of entitlement and because the instant action is time barred.

The foregoing constitutes the decision, order and judgment of this Court.