STATE OF RHODE ISLAND PROVIDENCE, SC WELLS FARGO BANK, NA AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2005-4

ASSET BACKED CERTIFICATES, SERIES 2005-4 VS. DAVID SEQUINO, DAWN M. SEQUINO

SUPERIOR COURT

CA NO. PD11-3538

OBJECTION TO MOTION TO DISMISS and REQUEST FOR ADDITIONAL TIME TO TRANSMIT TRANSCRIPT OF HEARING Now come the Defendants and hereby object to the Plaintiffs Motion to Dismiss and requests this Court to allow the Defendants additional time to transmit the transcript of the hearing to the Supreme Court. The request is based upon Extraordinary Circumstances.

The Plaintiffs contend that the Appeal to the Rhode Island Supreme Court should be dismissed because the Defendants have neglected to order and transmit the record on appeal to the Rhode Island Supreme Court. The Appeal was filed pro se on March 16, 2012. The docket sheet indicates that the Appeal was filed by Sequino and a note was made in the docket that the transcript would be ordered. Supreme Court Rule 11(a) does control this issue. In this situation, the pro se Defendant had engaged attorney Keven McKenna to represent him at the final hearing before the Superior Court. Mr. McKenna had been engaged to handle the aforesaid hearing because Attorney George E. Babcock was Court excused due to ongoing severe medical conditions. (See Court Approved Court Excusals dated October 13, 2011, January 20, 2012, April 4, 2012 and May 21, 2012, attached hereto and incorporated

herein.) Attorney Babcock underwent surgery on April 3, 2012 and then underwent another surgery on May 23, 2012. He continues to be disabled and he continues to be Court excused by the Presiding Justice through July 27, 2012. The Defendants were under the reasonable impression that Attorney McKenna would make sure that the transcript was ordered and delivered to the appropriate Court due to the inability of Attorney Babcock to perform this action. Once Attorney Babcocks office was aware of this Motion, a request was made to Plaintiffs Counsel for an extension of time to order and deliver the transcript based upon the continued infirmity of Attorney Babcock. In fact, on May 22, 2022, Attorney Babcock emailed the Law office of Nicholas Barrett, Attorney Patricia Davis, and asked that the pending motion be continued until after the expiration of his Court excusal. Attorney Babcock received an email from Attorney Davis that Attorney Dolben would contact him regarding the Sequino matter. This all took place the day before Attorney Babcock underwent his second major surgery in 60 days. On May 29, 2012, six (6) days after Attorney Babcock underwent his second major surgery, Attorney Dolben send an email that his client opposes any request for a continuance. He also wrote that I believe that Keven [Keven McKenna] entered his appearance in the case anyway, so I do not believe your Court excusal would preclude the matter from moving forward. A review of the Motion reveals that Attorney McKenna was notified on the filing of hearing on this motion but the Memorandum in Support thereof was not certified as being mailed to Attorney McKenna. It also reveals that Mr. and Mrs. Sequino were not noticed on the Motion despite the fact that they filed the Appeal.

As soon as Attorney Babcock learned that the transcript had not been ordered, he instructed his office to ascertain the date of the hearing and order the transcript. As of the date of the filing of this Objection, the transcript has been ordered and will be delivered to the Court on or before the date of this hearing. Clearly, the facts and circumstances before the Court are extraordinary. Attorney Babcock has been struggling with major physical issues for nearly one (1) year. He has undergone over ten (10) invasive medical procedures and two (2) major surgeries, both of which took place during the past sixty (60) days. Given these extraordinary facts, the Defendants suggest to this Court that the filing of this Motion and the hearing thereon during the period of Attorney Babcocks Court excusal is a violation of the Order of the Presiding Justice. Further, the fact that the transcript of the hearing, which has been ordered and which will be filed prior to the date of hearing on this Motion, was occasioned by these extraordinary facts and circumstances which amount to excusable neglect. There is no question that it is the duty of the appellant to ensure that the record is perfected and ready for transmission to this Court. Estate of Mitchell v. Gorman, 970 A. 2d 1 - RI: Supreme Court 2009 (citing Small Business Loan Fund Corp. v. Gallant, 795 A.2d 531, 533 (R.I. 2002). In the matter before the Court, it is clear that Attorney Babcock was Court excused at the time the Appeal was filed and at the time that the pending Motion was filed. He made a good faith effort to have the time extended to respond and transmit the transcript by reaching out to Attorney David and Attorney Dolben. By the time Attorney Dolben had rejected the request, Attorney Babcock had already been admitted to the hospital and had undergone surgery. Even while in the hospital, Attorney Babcock

attempted to ascertain the date of the hearing so his office could order the transcript. In fact,

being forced to draft this document during his critical recovery period has put Attorney Babcocks health and safety at risk. Attorney Babcock obtained Court Excusals so his health would not be put at risk and to avoid situation such as this. It may be inferred from its purposeful violation of an approved Court Excusal, signed by the Presiding Justice, that the moving party is motivated to seek to harm Attorney Babcock due to the fact that he is a problem for them in them in this case and many other cases in both the State and Federal Courts as well as the First Circuit Court of Appeals. This is not directed at counsel Dolben, but at Wells Fargo. Once the date of the hearing was ascertained, his office manager was able to order the transcript. The Defendants and counsel have acted in Good Faith and have made a sincere effort to perfect the appeal and they have, at all times acted appropriately. See, Estate of Mitchell v. Gorman, 970 A. 2d 1 - RI: Supreme Court 2009. Further, the Defendants draw the Courts attention to the matter of Sentas v. Sentas, 911 A. 2d 266 - RI: Supreme Court 2006 which wrote as follows on the subject of excusable neglect: Although dismissal of the appeal may be appropriate, "an appeal will not be dismissed for failure to perfect if `the inability of the appellant to cause timely transmission of the record is due to causes beyond his [or her] control or to circumstances which may be deemed excusable neglect.'" Id. at 533 (quoting Daniel v. Cross, 749 A.2d 6, 9 (R.I.2000)) (emphasis omitted). A litigant asserting excusable neglect must demonstrate extenuating circumstances sufficient to excuse his or her noncompliance with the court rules. Daniel, 749 A.2d at 9. Unexplained neglect alone is insufficient to excuse a party's noncompliance. Iddings v. McBurney, 657 A.2d 550, 553 (R.I.1995). Rather, "[e]xcusable neglect that would qualify for relief * * * is generally that course of conduct that a reasonably prudent person would take under similar circumstances." Daniel, 749 A.2d at 9 (quoting Astors' Beechwood v. People Coal Co., 659 A.2d 1109, 1115 (R.I.1995)).

This Court went on further to note that as part of its reason for not finding excusable neglect, that the Appellant had not asserted any explanation for her neglect to the Motion Justice. In the case at bar, the facts and circumstances are clearly extraordinary and Attorney Babcock has provide this Court with substantial evidence relative to the ultimate question of why the transcript was not provided to the Court within sixty (60) days, and further, has shown that as soon as he was aware of the Motion, despite being scheduled for surgery the very next day, reached out to counsel for the Plaintiffs in an effort to reach a reasonable accommodation. This

appeal should not be dismissed for failure to transmit because the Appellant has proven by ample evidence that it was occasioned by extraordinary circumstances that this Court can deem, in its discretion, as excusable neglect. In the alternative, based upon all of the same extraordinary circumstances, these Defendants request and extension of one week, to June 15, 2012, to file the transcript. WHEREFORE, the Defendants pray this Court to deny the relief sought by the Plaintiff/Appellee and to grant the relief sought by the Appellant. David & Dawn Sequino, By their attorney,

________________________ George E. Babcock, Esquire 574 Central Avenue Pawtucket, RI 02861 Bar Id# 3747 724-1904 Dated: June 5, 2012 CERTIFICATION I hereby certify that I mailed a true and accurate copy of the within to Joseph Dolben, Esquire, 999 South Broadway, East Providence, RI 02914 on June 5, 2012.

__________________________ Rosemarie Medeiros