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Deutsche Bank Natl. Trust Co. v Iniguez  
2008 NY Slip Op 33002(U)  
August 18, 2008  
Supreme Court, Queens County  
Docket Number: 11069/2006  
Judge: Augustus C. Agate  
Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case.  
This opinion is uncorrected and not selected for official publication.  

Short Form Order
NEW YORK SUPREME COURT -QUEENS COUNTY
Present: HONORABLE AUGUSTUS C. AGATE IA Part 24
Justice

x  Index  
DEUTSCHE BANK NATIONAL TRUST  Number  11069  2006  
COMPANY, etc., et al.  
Motion  
Date  March 25,  2007  
-against -
Motion  
Cal. Number  10  
MARIO INIGUEZ, et al.  
x  Motion Seq. No.  1  

The following papers numbered 1 to 14 read on this motion by
defendant Mario Iniguez to vacate and set aside the default
judgment entered against him, to stay the foreclosure sale and for
leave to serve an answer as proposed.

Papers
Numbered

Order to Show Cause -Affidavits -Exhibits..... 1-4
Answering Affidavits -Exhibits.................. 5-7
Reply Affidavits................................. 8-10
Sur Reply and Sur Sur Reply...................... 11-14

Upon the foregoing papers it is ordered that the motion is
determined as follows:

Plaintiff Deutsche Bank National Trust Company, as trustee of
Ameriquest Mortgage Securities Inc. asset backed, pass through
certificates, series 2005-R5 under the pooling and servicing
agreement dated as of June 1, 2005, without recourse, commenced
this action seeking foreclosure of a mortgage executed,
acknowledged and delivered to Ameriquest Mortgage Company
(Ameriquest) by defendant Mario Iniguez on the property known as
83-03 31st Avenue, Queens, New York to secure a note evidencing a
loan, in the principal amount of $700,000.00, plus interest.
Plaintiff alleged that it was the holder of the mortgage pursuant
to an assignment, defendant Mario Iniguez defaulted under the
mortgage by failing to pay the monthly mortgage installment payment
due on January 1, 2006, and it elected to accelerate the mortgage

debt and declare all sums secured by the mortgage to be due and
payable.

Defendant Mario Iniguez makes no claim of lack of personal
jurisdiction, and it appears from the affidavit of service, that
proper service was made upon him pursuant to CPLR 308(2) (see
Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139
[1986]). According to the affidavit of service, service of process
upon defendant Mario Iniguez by delivery of a copy of the summons
and complaint upon Joanna Iniguez, on May 20, 2006 at 7:30 P.M. at
the subject premises, as the dwelling place or usual place of abode
of Mario Iniguez, and a mailing on May 22, 2006 of a copy of the
summons and complaint to defendant Mario Iniguez at the same
address. The affidavit of service was filed with the County Clerk
on May 22, 2006, and therefore, defendant Mario Iniguez had 30 days
thereafter in which to serve an notice of appearance, an answer or
move with respect to the complaint (see CPLR 320[a], 308[2],
3012[a], 3211[e]). Defendant Iniguez had not moved in relation to
the complaint, and was in default in answering (see e.g. Arroyo v
Feggoudakis, 21 AD3d 975 [2005]; I.J. Handa, P.C. v Imperato,
159 AD2d 484 [1990]), when on June 23, 2006, the law firm of
Michael N. Durante, P.C., served, on behalf of defendant Mario
Iniguez, a notice of appearance by mail on plaintiff

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