                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-1728


JAMES DILLON,

                 Plaintiff – Appellee,

           v.

BMO HARRIS BANK, N.A.; GENERATIONS FEDERAL CREDIT UNION; BAY
CITIES BANK,

                 Defendants – Appellants,

           and

FOUR OAKS BANK & TRUST COMPANY,

                 Defendant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00897-CCE-LPA)


Argued:   March 27, 2015                    Decided:   May 29, 2015


Before DUNCAN, KEENAN, and THACKER, Circuit Judges.


Vacated and remanded by published opinion.    Judge Duncan wrote
the opinion, in which Judge Keenan and Judge Thacker joined.


ARGUED: Kevin Scott Ranlett, MAYER BROWN LLP, Washington, D.C.,
for Appellants.    Stephen N. Six, STUEVE SIEGEL HANSON LLP,
Kansas City, Missouri, for Appellee.     ON BRIEF: Lucia Nale,
Debra Bogo-Ernst, MAYER BROWN LLP, Chicago, Illinois; Mary K.
Mandeville, ALEXANDER RICKS PLLC, Charlotte, North Carolina, for
Appellant BMO Harris Bank, N.A.; Eric A. Pullen, Leslie Sara
Hyman, Etan Tepperman, PULMAN, CAPPUCCIO, PULLEN, BENSON &
JONES, LLP, San Antonio, Texas; Reid C. Adams, Jr., Garth A.
Gersten, Jonathan R. Reich, WOMBLE CARLYLE SANDRIDGE & RICE,
LLP, Winston-Salem, North Carolina, for     Appellant Generations
Federal Credit Union; Eric Rieder, New York, New York, Michael
P. Carey, Atlanta, Georgia, Mark Vasco, BRYAN CAVE LLP,
Charlotte, North Carolina, for Appellant Bay Cities Bank.
Darren T. Kaplan, DARREN KAPLAN LAW FIRM, P.C., New York, New
York; F. Hill Allen, THARRINGTON SMITH, L.L.P., Raleigh, North
Carolina; Norman E. Siegel, J. Austin Moore, STUEVE SIEGEL
HANSON LLP, Kansas City, Missouri; Jeffrey M. Ostrow, KOPELOWITZ
OSTROW P.A., Fort Lauderdale, Florida; Hassan A. Zavareei, TYCKO
& ZAVAREEI LLP, Washington, D.C., for Appellee.




                               2
DUNCAN, Circuit Judge:

      After Plaintiff-Appellee James Dillon obtained loans from

online lenders and then sued Defendants-Appellants BMO Harris

Bank, N.A., Generations Federal Credit Union, and Bay Cities

Bank (the “Banks”) for facilitating collection of those loans,

the   Banks     sought   to    enforce    arbitration     clauses   in     the    loan

agreements between Dillon and the lenders.                  The district court

denied    these    motions,      and     the   Banks    filed    renewed    motions

seeking    to     cure   the    deficiencies      the    court    relied     on     in

dismissing their claims.               The district court then denied the

renewed motions without considering their merits; it construed

them as motions for reconsideration, and denied them on that

basis.    The Banks appealed.             For the reasons that follow, we

vacate the district court’s order denying the renewed motions

and remand for further proceedings.



                                          I.

                                          A.

      In October 2013, Dillon, a North Carolina resident, filed

this putative class action against the Banks. 1                  He alleges that

he applied in late 2012 and mid 2013 for four online payday



      1
       A fourth Defendant, Four Oaks Bank & Trust, is not a party
to this appeal.


                                           3
loans from tribal and out-of-state lenders. 2                         As a part of the

application process, Dillon authorized the lenders to collect

the   amount    due   under       the    loan       agreements        by   debiting     his

checking account.          The lenders approved Dillon’s applications

and deposited a total of $3,575 into his checking account.                             Soon

after, the lenders began collecting loan payments by initiating

electronic     fund   transfers         from        that    account.         The   Banks,

although not parties to the loan agreements, processed these

transfers      on   behalf    of        the        lenders,      thereby      acting     as

intermediaries between the lenders and Dillon.

      Dillon    maintains     that      North        Carolina     law      prohibits    the

loans he took out because, among other reasons, they carried

interest rates that substantially exceed the maximum allowable

rate under State law.         In this action, however, Dillon does not

sue   the   lenders   or    any    other          party    to   his   loan   agreements.

      2
        Payday loans are small, high-interest, short-term cash
loans.   “Because of the dangers to consumers and potential for
predatory lending practices, many states have undertaken to
regulate or eliminate such transactions.”    Cmty. State Bank v.
Knox, 523 F. App’x 925, 926 n.1 (4th Cir. 2013). North Carolina
is one such state.    According to the North Carolina Department
of Justice, “storefront payday lenders” are barred from the
State, “but lenders are still using the Internet to offer these
loans.”           Payday     Loans,     N.C.     Dep’t      Just.,
http://www.ncdoj.gov/Consumer/Credit-and-Debt/Payday-Loans.aspx
(last visited May 7, 2015) (saved as ECF opinion attachment).
The   Department   explains   that  these   Internet   loans   are
unenforceable under North Carolina law, but notes that “some
Internet   lenders   who  are   based  overseas   or   on   Indian
reservations claim not to be subject to North Carolina law.”
Id.


                                              4
Rather, he sues the Banks, alleging that they were complicit in,

and     necessary     parties       to,     the       lenders’    unlawful     practices.

Specifically, Dillon claims that the Banks made it possible for

the lenders to make and collect payday loans in North Carolina

by providing the lenders with access to the Automated Clearing

House       (“ACH”)   Network,       an   electronic          payment   system.         When

payments       were   due     under       the        loan   agreements,     the    lenders

initiated direct payment transactions through the ACH network.

The         Banks,    known     as        Originating          Depository         Financial

Institutions,         then    entered       the        transactions     into      the    ACH

Network.        Soon after, a central clearing facility transmitted

funds from Dillon’s account to the lenders’ accounts.                             According

to Dillon, this process enabled the lenders to “debit payday

loan payments from customers’ bank accounts in states where the

loans are illegal and unenforceable.”                       J.A. 28 ¶ 7.

                                                B.

      In November and December 2013, the Banks filed motions to

compel       arbitration      and    stay       further       court   proceedings       (the

“Initial Motions”). 3          They argued that Dillon agreed to submit

any claims arising from those loans to arbitration as a part of



        3
        Specifically, Generations moved to dismiss Dillon’s
complaint for failure to arbitrate, and the other two banks each
filed a motion to compel arbitration and stay further court
proceedings.


                                                5
the application process for the loans themselves. 4                              The Banks

substantiated their position by attaching copies of electronic

loan       agreements       containing       arbitration        clauses     and    bearing

Dillon’s name.

       Dillon       opposed    the    Initial        Motions.      Relevant       to   this

appeal,      Dillon      argued     that    the   Banks      failed    to    carry     their

burden of showing an agreement to arbitrate.                          He claimed that

the loan agreements were inadmissible hearsay because they did

not bear his physical signature and because the Banks did not

offer proof that they had been authenticated.

       The Banks replied that the loan agreements were properly

before the court for three reasons.                    First, they argued that the

agreements        were    integral     to    Dillon’s     complaint         because    “the

loans form the entire basis for his claims.”                       J.A. 170 n.2; see

also       J.A.   162–63,     172.         Second,    they    argued      that    Dillon’s

position was disingenuous because Dillon, and not the Banks, was

a signatory to the loan agreements.                       Third, they pointed out

that       Dillon     had     not    actually        questioned       the    agreements’




       4
       For example, Dillon’s purported loan agreement with one of
the lenders, Great Plains Lending, LLC, states: “UNLESS YOU
EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION [IN WRITING WITHIN
60 DAYS OF RECEIVING THE LOAN], ANY DISPUTE YOU HAVE WITH LENDER
OR ANYONE ELSE UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING
ARBITRATION.” J.A. 133.



                                              6
authenticity.          Rather, his argument concerned the Banks’ burden

of proof.

        In    March    2014,     the      district    court     denied       the   Initial

Motions, holding that the Banks “ha[d] not met their burden to

establish the existence of an agreement to arbitrate,” J.A. 173,

because       they    failed   to      provide    authenticating          evidence,    J.A.

175–76, which, the court held, was necessary to discharge the

Banks’       burden,   J.A.    176–78.        The     Banks    did    not    appeal   this

ruling;       instead,     they        attempted       to     cure    the      deficiency

identified by the district court. 5

                                             C.

        After the district court denied the Initial Motions, the

Banks       obtained    from     the      lenders    declarations         purporting    to

authenticate the loan agreements.                    The Banks then filed renewed

motions to compel arbitration and stay further court proceedings

(the “Renewed Motions”).

      Dillon opposed the Renewed Motions.                     He urged the district

court        to   construe       the      Renewed     Motions        as     motions    for

reconsideration because, in Dillon’s view, the court had “fully

and     finally       decided”      the    “issues      raised       in     [the   Banks’]

‘renewed’ motion[s].”               J.A. 331.        He submitted that the court


        5
       Because the Banks did not appeal the district court’s
order denying the Initial Motions, its correctness is not before
us.


                                              7
should deny the Renewed Motions without considering their merits

because “the law of the case doctrine and public policy weigh

strongly against reconsideration.”         J.A. 337.

     The Banks argued in reply that the reconsideration standard

was inapplicable because “the Court ha[d] not previously decided

the merits of [the Initial Motions].”              J.A. 364.      The Banks

pointed out that they were “not asking the Court to revisit” its

prior   ruling,   but   were    instead    seeking     a   determination   of

whether “the authenticating declaration[s] [were] sufficient to

address the Court’s concerns.”        J.A. 364.

     The district court adopted Dillon’s proposed construction

of the Renewed Motions.        The court noted that it had “previously

denied motions to compel arbitration,” and observed that the

Banks had “offered no legal basis to revisit this previously

decided issue.”     J.A. 430.       In other words, the district court

ruled   that,   regardless     of   whether   Dillon   actually   agreed   to

submit his claims to arbitration, Dillon’s right to litigate

those claims had become law of the case.           It therefore held that

it would grant the Renewed Motions “only if ‘(1) there ha[d]

been an intervening change in controlling law; (2) there [wa]s

additional evidence that was not previously available; or (3)

[its] prior decision was based on clear error or would work

manifest injustice.’”        J.A. 433 (quoting Akeva L.L.C. v. Adidas

Am., Inc., 385 F. Supp. 2d 559, 566 (M.D.N.C. 2005)).             The court

                                       8
then found that the Banks had satisfied none of these factors,

and    it       denied    the    Renewed          Motions      for    failure        to    justify

reconsideration.           The Banks timely appealed.



                                                  II.

       Our analysis proceeds in three parts.                                We begin with a

brief       discussion      of     the    Federal        Arbitration         Act     (“FAA”),    9

U.S.C. § 1 et seq., as necessary context for our analysis.                                      We

then explain why the FAA provides us with jurisdiction over this

interlocutory appeal. 6                Finally, we conclude that the district

court       erred   by    treating        as      motions     for    reconsideration          what

were,      in    both    form    and     substance,          renewed       motions    to    compel

arbitration and stay further court proceedings.

                                                  A.

       Congress          enacted       the     FAA       in    1925        “to     reverse     the

longstanding judicial hostility to arbitration agreements that

had    existed      at    English        common        law    and    had    been     adopted    by

American courts, and to place arbitration agreements upon the

same footing as other contracts.”                        Gilmer v. Interstate/Johnson

Lane       Corp.,   500    U.S.     20,      24    (1991).          The    FAA     manifests    an


       6
       In August 2014, Dillon moved to dismiss this appeal for
lack of subject matter jurisdiction. After the Banks responded
and Dillon filed a reply, we deferred ruling on the motion until
after oral argument.   We resolve Dillon’s motion in Part II.B
below.


                                                   9
“emphatic      federal        policy        in        favor      of        arbitral     dispute

resolution,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc.,    473     U.S.   614,        631    (1985),         and   requires       that     courts

“rigorously       enforce      agreements             to     arbitrate,”        Dean     Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).

       Section     2    of     the        FAA    is        its     “primary      substantive

provision.”       Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 24 (1983).                    This section “provides that written

agreements to arbitrate controversies arising out of an existing

contract    ‘shall      be    valid,       irrevocable,          and       enforceable,       save

upon    such     grounds      as    exist       at     law    or      in    equity     for    the

revocation of any contract.’”                   Dean Witter Reynolds, 470 U.S. at

218 (quoting 9 U.S.C. § 2).

       Sections    3    and     4       “provide[]         two     parallel     devices       for

enforcing an arbitration agreement: a stay of litigation in any

case raising a dispute referable to arbitration, 9 U.S.C. § 3,

and an affirmative order to engage in arbitration, § 4.”                                     Moses

H. Cone Mem’l Hosp., 460 U.S. at 22.                             Under § 3, a district

court must grant a party’s motion to stay further proceedings if

(1) the court is “satisfied that the issue . . . is referable to

arbitration”      pursuant         to     “an    agreement         in      writing    for    such

arbitration,” and (2) the “applicant for the stay is not in

default in proceeding with such arbitration.”                                 9 U.S.C. § 3.

The    circumstances       giving        rise    to    default        under    the    FAA    “are

                                                10
limited     and,     in    light     of    the      federal     policy     favoring

arbitration, are not to be lightly inferred.”                       Maxum Founds.,

Inc. v. Salus Corp., 779 F.2d 974, 981 (4th Cir. 1985).                     A party

is in default only if it has “so substantially utiliz[ed] the

litigation     machinery     that    to   subsequently        permit     arbitration

would prejudice the party opposing the stay.”                 Id.

     Section 4 provides that “[a] party aggrieved by the alleged

failure, neglect, or refusal of another to arbitrate under a

written agreement may petition [a] district court . . . for an

order directing that such arbitration proceed.”                     9 U.S.C. § 4.

If the court determines “that an agreement for arbitration was

made in writing,” it must “make an order summarily directing the

parties to proceed with the arbitration in accordance with the

terms thereof.”      Id.

     If a party’s motion under §§ 3 or 4 presents unresolved

questions of material fact, the FAA “call[s] for an expeditious

and summary hearing” to resolve those questions.                     Moses H. Cone

Mem’l Hosp., 460 U.S. at 22; see also 9 U.S.C. § 4 (“If the

making of the arbitration agreement or the failure, neglect, or

refusal to perform the same be in issue, the court shall proceed

summarily    to    the    trial    thereof.”).       Thus,     “[o]ne     thing   the

district court may never do is find a material dispute of fact

does exist” and then deny the motion without holding “any trial

to   resolve      that    dispute    of    fact.”       Howard      v.    Ferrellgas

                                          11
Partners, L.P., 748 F.3d 975, 978 (10th Cir. 2014) (emphasis

omitted).

     Section         16    authorizes         immediate        appeal     from      an    order

“refusing      a    stay    of    any       action     under    section       3   . . .   [or]

denying a petition under section 4 . . . to order arbitration to

proceed.”      9 U.S.C. § 16(a)(1).                  “Congress’s purpose in creating

appellate      jurisdiction           for    these     orders    was     to    effectuate    a

‘strong     policy        favoring          arbitration’       through        appeal     rules,

whereby ‘an order that favors litigation over arbitration . . .

is immediately appealable, even if interlocutory in nature.’”

Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 696

(4th Cir. 2012) (quoting Stedor Enterprises, Ltd. v. Armtex,

Inc.,    947       F.2d    727,    730       (4th     Cir.     1991)).         Against    this

background, we now turn to the issues before us.

                                                B.

     Our first determination is whether we have jurisdiction.

Dillon    argues      that      the    Banks     are    appealing        an    interlocutory

order denying motions for reconsideration--rather than an order

denying motions seeking arbitration under §§ 3 or 4 of the FAA--

and therefore that § 16(a) of the FAA, which would otherwise

confer jurisdiction, does not apply.                         We disagree.         Because the

Renewed    Motions         by    their       very     terms    sought     enforcement       of

Dillon’s purported arbitration agreements, we have jurisdiction



                                                12
over        this     appeal     regardless       of     the    district      court’s

characterization of those motions.

       We    determine      whether     the   Renewed    Motions   are      petitions

under either §§ 3 or 4, and thus whether § 16(a) affords us

jurisdiction, by looking to whether they “evidence[] a clear

intention to seek enforcement of an arbitration clause.”                       Rota-

McLarty, 700 F.3d at 698.               We conclude below that the motions

did so.

       BMO Harris and Bay Cities each labeled their motions as a

“RENEWED MOTION TO COMPEL ARBITRATION AND TO STAY LITIGATION.”

J.A. 298, 375.          The terms “compel” and “stay” invoke §§ 4 and 3,

respectively.          The two banks thus employed the “first, simplest,

and    surest        way   to   guarantee      appellate      jurisdiction     under

§ 16(a).”          Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio

Valley, Inc., 683 F.3d 577, 585 (4th Cir. 2012) (quoting Conrad

v. Phone Directories Co., 585 F.3d 1376, 1385 (10th Cir. 2009)).

Indeed, we generally do not look beyond the caption of a denied

motion when determining our jurisdiction under the FAA unless we

“suspect[] that the motion has been mis-captioned in an attempt

to take advantage of § 16(a).”                Id. (quoting Conrad, 585 F.3d at

1385).       There is no basis for suspicion here: BMO Harris and Bay

Cities both made clear in their respective motions that they

were seeking enforcement of arbitration clauses.                   See J.A. 299-

300 (BMO       Harris      repeatedly    describing     its   motion   as    one   “to

                                          13
compel arbitration”); J.A. 376 (Bay Cities asking the court to

enter    an      “order   compelling      plaintiff       James      Dillon   .    .    .    to

arbitrate each of [his] claims” and “staying this action pending

arbitration”).

       Unlike      BMO    Harris    and    Bay    Cities,       Generations       moved      to

dismiss Dillon’s claims against it.                       We have previously held

that a motion to dismiss is an appropriate vehicle to “invoke

the full spectrum of remedies under the FAA, including a stay

under § 3.”         Choice Hotels Int’l, Inc. v. BSR Tropicana Resort,

Inc., 252 F.3d 707, 710 (4th Cir. 2001).                        We determine whether

we   have     appellate     jurisdiction         over    such    a   motion   by       asking

whether the movant “made it clear within the four corners of its

motion      to    dismiss    that    it     was    seeking       enforcement       of       the

arbitration agreement.”             Wheeling Hosp., 683 F.3d at 586.                    Here,

Generations asked the district court to dismiss Dillon’s claims

against it because Dillon “agreed that any disputes related to

the Loan Agreement . . . would be determined exclusively . . .

through arbitration.”          J.A. 317.          This language makes clear that

Generations moved to enforce an arbitration agreement.

       We conclude that § 16(a) provides us with jurisdiction over

this    interlocutory        appeal       because       the   “the    essence      of       the

requested relief [in the Renewed Motions] ‘is that the issues

presented be decided exclusively by an arbitrator and not by any

court.’”         Rota-McLarty, 700 F.3d at 699 (quoting Wheeling Hosp.,

                                            14
683   F.3d   at   585)     (internal    quotation   marks    omitted).      We

therefore deny Dillon’s motion to dismiss this appeal for lack

of jurisdiction.

                                       C.

      We turn now to the merits of this appeal, reviewing the

district court’s order denying the Renewed Motions de novo.                 See

Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380

F.3d 200, 203-04 (4th Cir. 2004).            We proceed mindful that, “as

a matter of federal law, any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration,

whether the problem at hand is the construction of the contract

language itself or an allegation of waiver, delay, or a like

defense to arbitrability.”        Moses H. Cone Mem’l Hosp., 460 U.S.

at 24–25.

      We are compelled to conclude that the district court erred

by construing the Renewed Motions as motions for reconsideration

and then denying them on that basis.           The district court did not

elaborate      beyond      concluding       that    the     motions      sought

reconsideration of a previously decided question.                 We see two

possible     bases   for    the   court’s     approach,     but   neither   is

availing.     The court could have refused to consider the Renewed

Motions on the merits because it believed that the Banks had

only one opportunity to invoke the FAA’s enforcement mechanisms.

Or, alternatively, the court could have relied on the law of the

                                       15
case doctrine to deny the Renewed Motions if resolution of those

motions turned on a rule of law that the court had already

decided.       We briefly consider each rationale.

         First,   no   authority--not   the   FAA,   the   Federal   Rules   of

Civil Procedure, or any other source of law of which we are

aware--limits a party to only one motion under §§ 3 or 4 of the

FAA. 7       Section 4 provides that a party seeking to enforce an

arbitration       agreement   “may   petition”   the   court   for   an   order

compelling arbitration.          9 U.S.C. § 4.         And § 3 states that

courts “shall on application of one of the parties stay the

trial of the action” if certain conditions are met.                  Id. § 3.

Indeed, the FAA lists only one circumstance under which “a party

may lose its right to compel arbitration,” Rota-McLarty, 700

F.3d at 702: when that party “is in default in proceeding with

such arbitration,” id. (quoting 9 U.S.C. § 3).                  The district

court’s order cannot rest upon this ground because the court did

not find that the Banks were in default.

         7
       Nor did the district court make clear to the Banks that it
expected them to file only one round of motions under the FAA.
We point this out not to imply that such an instruction
necessarily would have been permissible; rather, we note that
this appeal would present different issues if the district court
had, with fair notice, limited the parties to only one motion.
A court reviewing such an instruction would likely consider
whether that instruction were consistent with “Congress’s clear
intent . . . to move the parties to an arbitrable dispute out of
court and into arbitration as quickly and easily as possible.”
Moses H. Cone Mem’l Hosp., 460 U.S. at 22.


                                        16
       Second,      because    the    Renewed     Motions      presented       different

issues than did the Initial Motions, the district court could

not have relied on the law of the case doctrine to deny the

Renewed     Motions.        That     doctrine     “posits      that     when    a    court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.”

L.J. v. Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (emphasis

added) (quoting TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th

Cir. 2009)).         It does not apply here because the court’s order

denying     the     Initial    Motions      contained     no     rule   of     law    that

dictated the resolution of the Renewed Motions.

       In    the     Initial       Motions,      the     Banks     maintained,         not

unreasonably, that because Dillon’s complaint was based on and

incorporated        by   reference    the     very     loan    agreements      that   the

Banks sought to introduce, the pleadings themselves established

Dillon’s agreement to arbitrate.                  Although the district court

disagreed, ruling that the pleadings were insufficient because

authenticated loan agreements were necessary, the Banks did not

challenge this ruling in their Renewed Motions.                          Rather, they

attempted to cure the evidentiary deficiencies the court relied

on    and   asked    the   court     to   determine     whether    Dillon      actually

agreed to submit his claims to arbitration.                       The court’s prior

ruling--that the pleadings did not establish arbitrability--did

not     determine        whether      Dillon      consented       to     arbitration.

                                            17
Accordingly, the district court should have resolved the Renewed

Motions on the merits.

          At bottom, neither the fact that the district court denied

the       Initial      Motions      nor     the    court’s       reasoning       for    doing    so

dictated the resolution of the Renewed Motions.                                      Rather than

resolving            “any    doubts       concerning        the     scope       of     arbitrable

issues . . .           in     favor    of    arbitration,”          Moses       H.   Cone    Mem’l

Hosp.,         460    U.S.    at     24–25,       the    district       court    impermissibly

denied the Renewed Motions without considering their merits.                                     We

must therefore vacate the court’s order as inconsistent with the

“emphatic            federal        policy        in     favor     of     arbitral          dispute

resolution.”           Mitsubishi Motors Corp., 473 U.S. at 631.

          On    remand,       the     district          court    must    determine          whether

Dillon’s claims are “referable to arbitration under an agreement

in writing for such arbitration,” unless it finds that the Banks

are “in default in proceeding with such arbitration.”                                   9 U.S.C.

§    3.        And,    with    respect       to    the    two    banks    that       seek    orders

compelling           arbitration,         the     court    must     decide      whether      those

banks are “aggrieved by the . . . failure, neglect, or refusal

of    [Dillon]          to     arbitrate          under     a     written       agreement       for

arbitration.”               Id. § 4.         If unresolved questions of material

fact prevent the court from ruling on the Renewed Motions, the

court shall hold “an expeditious and summary hearing” to resolve

those questions.              Moses H. Cone Mem’l Hosp., 460 U.S. at 22.

                                                   18
                              III.

     For the foregoing reasons, we vacate the district court’s

order and remand for further proceedings.

                                            VACATED AND REMANDED




                               19
