                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1638



REPUBLIC BANK & TRUST COMPANY,

                                               Petitioner - Appellant,

           versus


JOHN R. KUCAN, JR.; WELSIE TORRENCE; TERRY
COATES,

                                              Respondents - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (CA-04-198)


Argued:   September 21, 2006                 Decided:   August 21, 2007


Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Brian David Darer, PARKER, POE, ADAMS & BERNSTEIN, L.L.P.,
Raleigh, North Carolina, for Appellant. Richard Harris Frankel,
GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation Program,
Washington, D.C., for Appellees. ON BRIEF: Catharine B. Arrowood,
PARKER, POE, ADAMS & BERNSTEIN, L.L.P., Raleigh, North Carolina,
for Appellant. J. Jerome Hartzell, HARTZELL & WHITEMAN, L.L.P.,
Raleigh, North Carolina; Carlene McNulty, NORTH CAROLINA JUSTICE
CENTER, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Republic Bank & Trust Company brought this action seeking to

compel arbitration of a state-court action filed by John Kucan,

Jr.,   Welsie    Torrence,     and   Terry   Coates.     The   district     court

dismissed Republic Bank’s action for lack of standing, and Republic

Bank appeals.       We vacate the district court’s order and remand for

further proceedings.



                                        I.

       In   2003,    Advance   America,      a   national    “payday”   lender,

contracted with Republic Bank to act as its servicing and marketing

agent in North Carolina.             The loan agreements documenting each

transaction explained that Republic Bank was the actual lender,

while Advance America acted only as Republic Bank’s marketer and

servicer.       The loan agreements included an arbitration clause

requiring any disputes among the borrowers, Republic Bank, and

Advance America to be submitted to arbitration.

       State-court     plaintiffs     Kucan,     Torrence,   and   Coates   (the

“borrowers”) have obtained one or more payday loans from Republic

Bank through Advance America.            The borrowers initiated in North

Carolina state court a putative class action against Advance

America only; Republic Bank was not named as a defendant.                 In the

state-court action, the borrowers allege that the loan transactions

violated North Carolina’s usury laws and its Consumer Finance Act.


                                         2
The borrowers seek, among other things, a declaration that the loan

agreements are void and unenforceable, and disgorgement of all

principal and interest illegally charged and collected.

     Republic Bank did not move to intervene in the state-court

action, but instead brought this action in federal court, seeking

to compel the borrowers to submit their claims to arbitration as

required by the loan agreements.       The borrowers moved to dismiss

the action, arguing that the district court lacked subject matter

jurisdiction   because   neither   diversity   nor   federal   question

jurisdiction existed and because Republic Bank lacked standing to

compel arbitration of claims to which it was not a party.           The

district court concluded that Republic Bank lacked standing to

maintain the action and dismissed it without considering whether

subject matter jurisdiction existed.      This appeal followed.

     The standing issue resolved by the district court is one

aspect of the subject matter jurisdiction inquiry.      See, e.g., Pye

v. United States, 269 F.3d 459, 466 (4th Cir. 2001) (“Standing is

a threshold jurisdictional question which ensures that a suit is a

case or controversy appropriate for the exercise of the courts’

judicial powers under the Constitution of the United States.”). At

oral argument, other questions arose about whether subject matter

jurisdiction existed over Republic Bank’s petition.      The parties’

briefs focused on standing and did not address in any detail the

other aspects of subject matter jurisdiction.           Republic Bank


                                   3
nonetheless contended that it had demonstrated an adequate basis

for diversity and federal question jurisdiction.   Republic Bank’s

claim that federal question jurisdiction existed was premised on

its view that the borrowers’ usury claims were completely preempted

by the Federal Deposit Insurance Act (the “FDIA”), see 12 U.S.C.A.

§ 1831d (West 2001), which governs usury claims asserted against

state-chartered banks like Republic Bank. The preemptive reach of

the FDIA was the central issue in Discover Bank v. Vaden, No. 06-

1221, a case then pending before another panel of this court.

After hearing oral argument, we held this appeal in abeyance

pending issuance of the opinion in Vaden.    The decision in Vaden

has now been issued, see Discover Bank v. Vaden, 489 F.3d 594 (4th

Cir. 2007), and the parties have submitted supplemental briefs

addressing its effect.



                               II.

     Republic Bank contends that the district court erred in

dismissing its petition for lack of standing.   We agree.

     “The standing requirement is designed to guarantee that the

plaintiff has a sufficient personal stake in the outcome of a

dispute to render judicial resolution of it appropriate.” Emery v.

Roanoke City Sch. Bd., 432 F.3d 294, 298 (4th Cir. 2005) Internal

quotation marks omitted).    Whether a plaintiff has standing is

determined by considering the relevant facts as they existed at the


                                4
time the action was commenced.           See Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (“[W]e have an

obligation to assure ourselves that [the plaintiff] had Article III

standing at the outset of the litigation.” (emphasis added)); Focus

on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,

1275 (11th Cir. 2003) (“Article III standing must be determined as

of the time at which the plaintiff’s complaint is filed.”).

     To      satisfy    the    constitutional         standing       requirement,     a

plaintiff must demonstrate that: (1) “the plaintiff . . . suffered

an injury in fact--an invasion of a legally protected interest

which   is    (a)   concrete    and    particularized,         and    (b)   actual   or

imminent, not conjectural or hypothetical”; (2) “there [is] a

causal connection between the injury and the conduct complained

of”; and (3) “it [is] likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.”                     Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations,

footnote, and internal quotation marks omitted).

     We      believe    Republic      Bank       satisfies   these     requirements.

Republic Bank, Advance America, and the borrowers were parties to

contracts that required any claims or disputes to be resolved

through arbitration.           The borrowers, however, have refused to

comply with this contractual obligation. Republic Bank, as a party

to the contract, has the right to insist on compliance with that

contractual     term,    and    an    order       compelling    the    borrowers     to


                                             5
arbitrate their claims would ensure that the borrowers complied

with the requirements of the contract.

     Moreover, the claims asserted by the borrowers place assets

belonging to Republic Bank at risk, notwithstanding the fact that

the borrowers did not name Republic Bank as a defendant.       The

allegations of the pleadings, which we must accept as true at this

juncture, see Pennell v. City of San Jose, 485 U.S. 1, 7 (1988),

and the terms of the loan documents attached to the pleadings,

establish that Republic Bank was the lender and that Advance

America was its marketing and servicing agent.     In their state-

court complaint, the borrowers allege that the loans were made in

violation of N.C. Gen. Stat. § 75-1.1 (2005), and that under N.C.

Gen. Stat. § 53-166 (2005), they are entitled to a return of all

principal, interest, or other fees or charges paid in connection

with those loans.   The borrowers seek a declaration that all loans

made through Advance America were made in violation of North

Carolina law, and an injunction barring the making or collection of

payday loans.   If the loans violate North Carolina law as alleged

by the borrowers, then the loans themselves are void.   See Ken-Mar

Fin. v. Harvey, 368 S.E.2d 646, 648 (N.C. Ct. App. 1988) (“[T]he

North Carolina Consumer Finance Act, G.S. 53-164 et seq., renders

void any loan contract in which the licensed lender engages in

unfair competition or deceptive trade practices.”). Whether or not

the borrowers specifically seek relief against Republic Bank, a


                                 6
determination that the loan transactions are void would necessarily

affect the interest of Republic Bank as lender.                 For example,

Advance America, as Republic Bank’s agent, could seek to require

Republic    Bank   to   bear   a   portion   of   the    loss   caused   by   a

disgorgement order.      Cf. Paul Revere Variable Annuity Ins. Co. v.

Kirschhofer, 226 F.3d 15, 24 (1st Cir. 2000) (concluding that

company against whom all claims had been dismissed did not have

standing to compel arbitration because the company faced “no

realistic risk” of liability as a co-obligor on contracts executed

by companies remaining in the litigation).              A determination that

the loans are void could likewise expose Republic Bank to claims

from borrowers who are not part of the existing state court action.

Cf. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 336 (1980)

(explaining that an appellant’s “concern that their success in some

unspecified future litigation would be impaired by [the] stare

decisis or collateral-estoppel” effect of a lower court ruling

“supplied the personal stake in the appeal required by Art. III”).

      Republic Bank thus has a sufficiently direct and personal

stake in the litigation that is nominally between Advance America

and   the   borrowers     to   satisfy    the     constitutional    standing

requirements.      Accordingly, we conclude that the district court

erred by dismissing Republic Bank’s petition for want of standing.1


      1
      The Federal Arbitration Act provides that “[a] party
aggrieved by the alleged failure, neglect, or refusal of another to
arbitrate under a written agreement for arbitration” may petition

                                      7
                                       III.

      Given our conclusion that Republic Bank has standing to seek

to   compel   arbitration,      we   must     determine     whether     the    other

requirements of subject matter jurisdiction have been satisfied.

See Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d

385, 390 (4th Cir. 2004) (en banc) (“Subject-matter jurisdiction

cannot   be    conferred   by    the    parties,      nor    can   a    defect      in

subject-matter jurisdiction be waived by the parties. Accordingly,

questions of subject-matter jurisdiction may be raised at any point

during the proceedings and may (or, more precisely, must) be raised

sua sponte by the court.” (citation omitted)).

      While   the   Federal   Arbitration       Act   permits      a   party   to    a

contract containing an arbitration agreement to obtain an order

compelling arbitration of the contract dispute, see 9 U.S.C.A. § 4

(West 1999), the Act does not create subject matter jurisdiction.

A petition to compel arbitration may be filed in federal court only

if subject matter jurisdiction (federal question, admiralty, or

diversity)     otherwise   exists      with     regard      to   the    underlying

controversy.     See Moses H. Cone Mem’l Hosp. v.                Mercury Constr.

Corp., 460 U.S. 1, 25 n.32 (1983); Discover Bank v. Vaden, 396 F.3d

366, 373 (4th Cir. 2005) (“Vaden I”).           Republic Bank contends that



for an order compelling arbitration. 9 U.S.C.A. § 4 (West 1999).
The facts establishing Republic Bank’s Article III standing also
establish that Republic Bank is “aggrieved” within the meaning of
the Act.

                                        8
both diversity and federal question jurisdiction are present in

this case and that we therefore have subject matter jurisdiction

over its § 4 petition to compel arbitration.

      We first consider Republic Bank’s contention that federal

question jurisdiction exists in this case.                    “Under . . . the

well-pleaded complaint rule, . . .              federal question jurisdiction

is   limited    to   actions      in   which    the   plaintiff’s   well-pleaded

complaint      raises    an   issue    of   federal    law;   actions   in   which

defendants      merely    claim    a   substantive      federal   defense    to   a

state-law claim do not raise a federal question.” In re Blackwater

Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006), cert.

denied, 127 S. Ct. 1381 (2007).                 There are no federal claims

asserted in the borrowers’ state-court complaint, which suggests

that federal question jurisdiction is not present.

      There is an exception, however, to the well-pleaded complaint

rule, in cases where the plaintiff’s claims relate to an area in

which federal law has completely preempted state law. See Childers

v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1261 (4th Cir.

1989) (“The doctrine of complete preemption . . . serves as an

exception to the well-pleaded complaint rule.                 If a federal cause

of action completely preempts a state-law claim, any complaint that

comes within the scope of the federal cause of action necessarily

arises under federal law . . . .” (citation and internal quotation

marks omitted)).        Republic Bank contends that the borrowers’ usury


                                            9
claims are completely preempted by the FDIA, which governs usury

claims asserted against state-chartered banks like Republic Bank.

See 12 U.S.C.A. § 1831d.

       This court’s recent decision in Discover Bank v. Vaden, 489

F.3d 594 (4th Cir. 2007) (“Vaden II”), largely resolves this issue.

In Vaden II, Discover Bank, a state-chartered bank, issued a credit

card to Betty Vaden.       Through its servicing affiliate Discover

Financial Services (“DFS”), Discover Bank sued Vaden in state court

over   an   unpaid   credit-card   balance.   Vaden   asserted   various

counterclaims against DFS (but not Discover Bank), alleging, among

other things, that the interest rate on her credit card was

usurious.     Discover Bank then filed a § 4 petition in federal

district court seeking to compel Vaden to submit her counterclaims

to arbitration, in accordance with the terms of the credit-card

agreement. Because the parties were not diverse, jurisdiction over

the § 4 petition depended on the existence of a federal question.

Discover Bank argued that there was a federal question because

Vaden’s state-law usury claim was completely preempted by the FDIA.

Vaden argued, however, that her usury claim was asserted against

DFS only.      Because DFS is not a state-chartered bank, Vaden

contended that her claims were not preempted by the FDIA.        See id.

at 597-98

       On appeal, we held that the FDIA completely preempted state-

law usury claims against state-chartered banks.        See id. at 606.


                                    10
We also concluded that the district court had properly determined

(after remand by the court in Vaden I) that Discover Bank, the

entity that had actually extended credit to Vaden, was the real

party in interest with regard to Vaden’s usury claims.                  See id. at

603.       Because Discover Bank was a real party in interest, the fact

that Vaden named only DFS in her counterclaim was irrelevant.                   We

concluded that the district court had subject matter jurisdiction

over Discover Bank’s § 4 petition, and we affirmed the district

court’s order compelling arbitration.               See id. at 608.

       Vaden II thus establishes that usury claims against state-

chartered banks are completely preempted by the FDIA, and that such

claims that are nominally asserted against a non-bank are preempted

if a state-chartered bank in fact is the real subject of the claims

asserted by the plaintiffs. That determination, as it was in Vaden

II, is a fact-specific one that we cannot make on the record before

us.        The   ultimate   decision     as    to   whether   federal     question

jurisdiction is present thus cannot be made without remanding this

case       to   the   district   court   for   resolution     of   this   factual

question.2       See Vaden I, 396 F.3d at 373.


       2
      In addition to its § 4 claim seeking an order compelling
arbitration, Republic Bank, under the Declaratory Judgment Act,
seeks a declaration that the arbitration agreements are valid and
enforceable and preclude litigation of any claims that the
borrowers could assert against Republic Bank or its agents. See
J.A. 23. Republic Bank contends that the borrowers could assert
non-frivolous RICO or Truth-in-Lending claims against it, and that
these potential, colorable federal claims alone are sufficient to
establish federal question jurisdiction over its petition.     See

                                         11
     If the requirements for the exercise of diversity jurisdiction

were satisfied, of course, there would be no need to even consider

the possibility of federal question jurisdiction.    Unfortunately,

the record before us is also insufficient to determine whether

diversity jurisdiction exists.

     Diversity jurisdiction exists when there is complete diversity

of citizenship between the parties and the amount in controversy

exceeds $75,000.   See 28 U.S.C.A. § 1332(a) (West 2006).   While the



Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 370 (4th
Cir. 2001) (“[I]f the declaratory judgment plaintiff is not
alleging an affirmative claim arising under federal law against the
declaratory judgment defendant, the proper jurisdictional question
is whether the complaint alleges a claim arising under federal law
that the declaratory judgment defendant could affirmatively bring
against the declaratory judgment plaintiff.”). We disagree.

     A district court may grant declaratory relief only if there is
an “actual controversy.” 28 U.S.C.A. § 2201 (West 2006). Whether
the subject of a declaratory judgment action is a sufficiently live
controversy rather than an abstract question “is necessarily one of
degree.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S.
270, 273 (1941). “Basically, the question in each case is whether
the facts alleged, under all the circumstances, show that there is
a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”      Id.   The borrowers have
executed documents releasing any claims they could assert against
Republic   Bank   in  connection   with   the   payday  loans   and
unconditionally waiving any right to assert RICO or Truth-in-
Lending claims against Advance America.       By virtue of these
releases, there is no live controversy over potential RICO or
Truth-in-Lending claims, and there is no jurisdiction over those
portions of Republic Bank’s declaratory judgment claims.        See
Household Bank v. JFS Group, 320 F.3d 1249, 1260 (11th Cir. 2003)
(suggesting that the district court would lack jurisdiction over a
declaratory-judgment action if the declaratory-judgment defendants
executed “binding, judicially enforceable” releases of the federal
claims).

                                 12
citizenship requirements of § 1332 are satisfied in this case, we

cannot determine whether the amount-in-controversy requirement is

satisfied.

     When    determining   whether    the      jurisdictional   amount   is

satisfied in a case involving a petition to compel arbitration, it

is appropriate to look through the petition to compel to the

controversy underlying the arbitration request.           See Delta Fin.

Corp. v. Paul D. Comanduras & Assocs., 973 F.2d 301, 304 (4th Cir.

1992) (“In considering a suit to compel arbitration, the question

of jurisdictional amount may be determined by reference to the

possible award resulting from the requested arbitration.”); see

also Doctor’s Assocs., Inc. v. Hamilton, 150 F.3d 157, 160 (2d Cir.

1998) (“In the context of a petition to compel arbitration, we have

advised district courts to look through to the possible award

resulting from the desired arbitration . . . .” (internal quotation

marks omitted)); Jumara v. State Farm Ins. Co., 55 F.3d 873, 877

(3d Cir. 1995) (“[T]he amount in controversy in a petition to

compel arbitration . . . is determined by the underlying cause of

action that would be arbitrated.”).

     Republic Bank contends that it could face damages in an amount

over $75,000 if the state court certified the class action and

found the loan agreements void.           Republic Bank, however, did not

intervene in the state court action and then remove it to federal

court, or otherwise associate itself with the putative class


                                     13
action.    Instead, Republic Bank initiated an independent action in

federal      court   naming       only   the     three    borrowers     and     seeking

arbitration of only their claims.               It is the possible award in that

requested arbitration that is determinative of the amount-in-

controversy question.             See Delta Fin. Corp., 973 F.2d at 304.

Because the payday loans obtained by the borrowers were small ($500

or less), the possible award from the arbitration requested by

Republic Bank is significantly less than the required $75,000.

     The      borrowers     in     their    state-court       complaint       seek    an

injunction against the enforcement or collection of loans that were

made in violation of state law.                 Presumably a similar injunction

would be available to the borrowers should they prevail in the

arbitration sought by Republic Bank.               Assuming that any injunction

issued would constrain actions by Republic Bank, the cost to

Republic     Bank    of   complying      with     the    injunction     would    be   an

appropriate consideration when determining whether the amount-in-

controversy requirement has been met.                   See Dixon v. Edwards, 290

F.3d 699, 710 (4th Cir. 2002) (“In this circuit, it is settled that

the test for determining the amount in controversy in a diversity

proceeding is the pecuniary result to either party which a judgment

would produce.” (internal quotation marks and alteration omitted));

Rubel   v.    Pfizer      Inc.,    361   F.3d     1016,   1017   (7th    Cir.     2004)

(explaining that the “the cost to the defendant of complying with

an injunction counts toward the jurisdictional minimum”).


                                           14
     While we question whether the cost of complying with an

injunction involving only three borrowers could amount to more than

$75,000, there is no information in the record detailing the

possible costs of compliance, and we cannot at this juncture say

that it is a legal certainty that the jurisdictional amount is not

satisfied.    As the party invoking federal jurisdiction, Republic

Bank bears the burden of establishing that the jurisdictional

amount has been satisfied.   See Lujan, 504 U.S. at 561.    Because

the record before us is inadequate to make that showing, we must

remand to the district court to give Republic Bank the opportunity

to establish that the amount in controversy in the arbitration that

Republic Bank seeks exceeds $75,000.



                                IV.

     We pause briefly to note that the borrowers have filed several

motions seeking to dismiss the appeal on various grounds.    Those

motions are hereby denied.     The borrowers’ contention that the

appeal should be dismissed under the Rooker-Feldman doctrine and

this court’s decision in Friedman’s, Inc. v. Dunlap, 290 F.3d 191

(4th Cir. 2002), is foreclosed by the Supreme Court’s decision in

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005),

which clarified and narrowed the scope of the Rooker-Feldman

doctrine.    See id. at 284 (“The Rooker-Feldman doctrine . . . is

confined to cases . . . brought by state-court losers complaining


                                 15
of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court

review and rejection of those judgments.”).

     As to those motions that rely on events occurring after the

district court proceeding and on evidence that was not before the

district court, we note that we have already denied the borrowers’

motion to supplement the appendix with this or similar material,

and we decline to consider the material at this juncture.               As

previously noted, the question of standing is determined by the

facts in existence at the time the action is commenced.                The

subsequent events pointed to by the borrowers thus would not affect

our standing analysis, nor do they demonstrate that the action has

become moot.        To the extent that the borrowers believe that

subsequent events may have rendered the action moot, they are free

to present the materials previously submitted to us and any new

information to the district court and to seek dismissal of the

action by the district court.



                                     V.

     Although we conclude that Republic Bank has standing to bring

its § 4 petition seeking to compel arbitration, we cannot on the

record before us determine whether the requirements of federal

question or diversity jurisdiction are satisfied in this case.

Accordingly,   we    vacate   the   district   court’s   order   dismissing


                                     16
Republic Bank’s petition for lack of standing, and we remand so

that the district court may conduct the appropriate inquiries to

determine whether Republic Bank is a real party in interest with

regard to the claims asserted by the borrowers and whether the

amount in controversy with regard to the arbitration sought by

Republic Bank exceeds $75,000.3



                                             VACATED AND REMANDED




     3
      On remand, the district court will be considering evidence
submitted by the parties and resolving disputed factual issues.
The conclusions we have reached today on the question of standing
are based on the allegations in the pleadings, which we have
accepted as true for purposes of our analysis. See Pennell v. City
of San Jose, 485 U.S. 1, 7 (1988). Those conclusions will not bind
the district court when it makes the required factual findings on
remand.

                                  17
