FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 9, 2002

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-15855

________________________

D. C. Docket No. 99-00241-CV-AAA-1

G. CRAIG BAYNHAM, on behalf of themselves and 

all other persons similarly situated, 

LINNIE BAYNHAM,

JERRY M. TUCKER,

ANN HELM, on behalf of themselves and all other

persons similarly situated,

 Plaintiffs-Appellees,

versus

PMI MORTGAGE INSURANCE COMPANY, 

 Defendant,

ELIZABETH F. SAVAGE,

ERNEST H. KELLEY,

DEBRA J. KELLEY,

 Movants-Appellants, 

 

ELVIS GATES,

MELISSA GATES,

 Interested-Parties.
*

Honorable Ursula Ungaro-Benages, United States District Judge for the

Southern District of Florida, sitting by designation.

2

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(December 9, 2002)

Before BLACK and MARCUS, Circuit Judges, and UNGARO-BENAGES*

,

District Judge.

MARCUS, Circuit Judge:

 This is one in a series of three companion class actions that have been filed

against mortgage insurance companies pursuant to the Real Estate Settlement

Procedures Act of 1974 (“RESPA”), 12 U.S.C. § 2607(a). The other two are

captioned: Pedraza v. United Guaranty Corp., 01-15854 and Downey v. Mortgage

Guaranty Ins. Corp., 01-15857. The ultimate question in each of these appeals is

whether the district court properly required the appellant(s) to post an appellate

cost bond that included the plaintiff-class’s anticipated attorneys’ fees. 

In Pedraza, we held that a cost bond issued pursuant to Fed. R. App. P. 7

(“Rule 7”) may properly include anticipated attorneys’ fees if the statutory fee

shifting provision that attends the plaintiff’s underlying cause of action defines

“costs” to include such fees. However, RESPA’s fee shifting provision, §
3

2607(d)(5), explicitly distinguishes “costs” from attorneys’ fees, and thus Rule 7

“costs” do not include attorneys’ fees where RESPA claims are concerned. We

also held in Pedraza that the district court had not found that the appellant, Joshua

O. Olorunnisomo, had advanced his claims on appeal “in bad faith, vexatiously,

wantonly, or for oppressive reasons,” Chambers v. NASCO, Inc., 501 U.S. 32, 45-

46, 111 S. Ct. 2123, 2133, 115 L. Ed. 2d 27 (1991), and that accordingly the

district court could not validly have included estimated attorneys’ fees in the

appellate cost bond pursuant to its inherent power to manage its affairs. Because

the district court’s actions in Pedraza were permissible under neither Rule 7 nor its

inherent power, it erred by including attorneys’ fees within the bond. 

Although the facts presented in this appeal differ somewhat from those at

issue in Pedraza, the legal questions and result are identical. As in Pedraza, the

Baynham class reached with defendant PMI Mortgage Insurance Company

(“PMI”) a proposed settlement that entitled class members to submit objections

until April 24, 2001. On April 23, 2001, appellant Elizabeth F. Savage filed a

timely objection to the settlement and a motion to intervene. The crux of her

objection was that within the class a Texas subclass, i.e., a subclass comprised of

Texas residents, should be created, and that she and her counsel (her husband)

should be appointed representatives of this class. She asserted that Texas law was
1

The Kelleys are a married couple, and are parties to the same loan.

Accordingly, they are considered a single objector.

2

This objection actually was filed jointly with Michael B. and Robin H.

Hopkins (“the Hopkinses”), who attempted to intervene in Downey.

3

This motion also was filed jointly with the Hopkinses. 

4

in several respects more conducive to the success of the class’s RESPA claims than

was the law of Georgia, and that it was unfair to require that the claims of class

members residing in Texas be governed by those less advantageous provisions.

The following day, appellants Ernest and Debra Kelley (“the Kelleys”)1

 filed

a timely objection to the settlement.2

 Their objection differed from that raised by

Savage in that whereas Savage contended that a Texas subclass should be created,

the Kelleys asserted simply that the terms of the proposed settlement were

unreasonable and unfair. In fact, according to the class, the Kelleys specifically

acknowledged the existence of substantive parallels between the law of Georgia

and Alabama, where they resided. Subsequently, on June 6, 2001, the Kelleys filed

an untimely motion to intervene.3

 They simultaneously served a proposed

complaint in intervention, in which they requested for the first time the creation of

a separate Alabama subclass and that they be appointed the named representatives

of this subclass.
4

The Kelleys filed with the Hopkinses a joint notice of appeal.

5

On June 8, 2001, the district court held a hearing on appellants’ motions, and

denied the Kelleys’ intervention motion on timeliness grounds. The court also

denied Savage’s request to intervene on the ground that she could adequately

protect her interests by opting out of the class, and simultaneously extended her

time to opt out until June 15, 2001. On this latter date, the district court held its

fairness hearing, at which Savage and the Kelleys were permitted to repeat their

arguments in favor of the creation of Texas and Alabama subclasses. The district

court considered and rejected these contentions, and approved the settlement with

only one minor change, namely that 20% of the attorneys’ fees were to be withheld

pending distribution of the settlement proceeds to the class. As a corollary of its

approval of the settlement, the court vacated its previous summary judgment order.

On July 6, 2001, Savage filed both a Rule 59 motion for reconsideration -- in

which the Kelleys later sought to join -- and a notice of appeal of the orders

approving the settlement and denying her request to intervene.4

 She asserted in her

reconsideration motion that our then recent holding in Wooden v. Bd. of Regents,

247 F.3d 1262 (11th Cir. 2001), established that the district court’s certification of

the class constituted error. However, on September 19, 2001 the district court
6

denied her motion for lack of standing, and Savage amended her notice of appeal

to encompass the September 19, 2001 order as well. 

While Savage’s motion for reconsideration was pending, the class moved to

require all objectors and would-be intervenors who had filed notices of appeal to

post bonds for attorneys’ fees, damages, costs and interest that would be lost on

appeal. Although both Savage and the Kelleys opposed the inclusion of attorneys’

fees in the requested bond, appellants did not contest the amount of the bond

sought by the class. The district court determined that attorneys’ fees were

properly bondable under Fed. R. App. P. 7, and in support of this conclusion it

cited the holding of the United States Court of Appeals for the Second Circuit in

Adsani v. Miller, 139 F.3d 67, 71-76 (2d Cir.), cert. denied 525 U.S. 875, 119 S.

Ct. 176, 142 L. Ed. 2d 144 (1998). See Baynham v. PMI Mortgage Ins. Co., No.

CIV.199-241, slip op. at 6 (S.D. Ga. Oct. 1, 2001) (reasoning that Adsani’s

approach to Rule 7 “best comports with the ‘American Rule’” that absent

exceptional circumstances each litigant bears responsibility for its own attorneys’

fees). The district court also indicated that it could include attorneys’ fees in an

appellate cost bond pursuant to its inherent power to manage its affairs. See id. at

4. 
5

The court granted the requested bond except insofar as the class sought

compensation for the interest it would lose while the case was on appeal. It reasoned

that plaintiffs were not entitled to any compensation until the conclusion of all

appeals, so they were not losing any interest to which they were otherwise entitled as

a consequence of any appeal. See Baynham, slip op. at 13-14.

6

This figure includes three objectors in Baynham, two in Pedraza and one in

Downey. 

7

Ultimately, the district court granted the class’s motion in part and denied it

in part,5

 and held six objectors,6 who had manifested an intent to appeal, jointly and

severally responsible for posting a $180,000 bond (representing an assessment of

$30,000 per likely appellant). This bond encompassed both filing fees and copying

costs, but also -- and more significantly from the perspective of this litigation --

approximately $29,000 per appellant in anticipated attorneys’ fees. See id. at 12. 

On October 1, 2001, Savage filed a notice of appeal from the district court’s

bond order, and the Kelleys followed suit on October 13, 2001. It is these appeals

that presently are before us. Appellants’ grounds for challenging the order are

identical to those on which the Pedraza class relied in contesting the bond in that

action.

As we explained in Pedraza, although a Rule 7 cost bond can properly

include anticipated appellate attorneys’ fees where the statutory fee shifting

provision that attends the plaintiff’s underlying cause of action defines “costs” to
8

include such fees, RESPA’s fee shifting provision, § 2607(d)(5), explicitly

distinguishes attorneys’ fees from “costs.” The import of this distinction, which

we discussed at length in Pedraza, is in no way affected by the relatively minor

factual variances between that case and this one; both feature § 2607 as the

operative cause of action. Accordingly, just as the district court could not properly

have required Olorunnisomo to post a Rule 7 cost bond that encompassed

estimated attorneys’ fees, it could not validly have imposed such a requirement on

Savage or the Kelleys. 

Nor do the factual distinctions between these appeals affect the propriety of

the district court’s invocation of its inherent power to manage its affairs as a basis

for the inclusion of attorneys’ fees within the appellate cost bond. Neither Savage

nor the Kelleys have benefitted from the actions of the Baynhams, Tucker or

Helms any more than Olorunnisomo did from the actions of Pedraza, and

accordingly the “common fund exception” is inapplicable here. We also note that

there is no allegation that appellants willfully disobeyed a court order. Moreover,

the court’s determination that Savage’s claims on appeal were “without merit” was

no more analogous to a finding that she acted “in bad faith, vexatiously, wantonly,

or for oppressive reasons,” Chambers, 501 U.S. at 45-46, 111 S. Ct. at 2133, than

was its finding that Olorunnisomo’s -- and, indeed, the Kelleys’ -- claims were
7

Given this holding, it is unnecessary for us to address any of appellants’

various other arguments.

9

“without foundation.” Thus, as we held in Pedraza, although the district court

could have required appellants to include attorneys’ fees in an appellate bond

pursuant to its inherent power to manage its affairs, it did not make the requisite

factual findings in this case that would have permitted it to do so.

In sum, although the district court was free to require Savage and the

Kelleys to post an appellate cost bond, it was improper to include anticipated

attorneys’ fees within such a bond.7

 Accordingly, we vacate the court’s order and

remand for further proceedings consistent with this opinion. 

VACATED AND REMANDED.