In the context of a plaintiff’s challenge to the enforceability of an arbitration clause in a loan agreement, we have held that the plaintiff must allege that an arbitration between the lender and the borrower is imminent or “certainly impending
However, if a state regulation only indirectly affects interstate commerce and regulates both in-state and out-of-state interests equally, courts “have examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.” Brown-Forman, 476 U.S. at 579, 106 S. Ct. at 2084. Though the two tiers of analysis are not clearly distinguishable, ” [i]n either situation the critical consideration is the overall effect of the statute on both local and interstate activity.” Id.
It is undisputed that the Act makes no attempt to regulate the interest rate out-of-state banks can charge borrowers in Georgia. In-state banks, however, are limited to Georgia’s 16% cap. In-state banks may not use payday stores to charge more than Georgia’s 16% cap no matter what the in-state banks pay the payday stores. Therefore, the Act actually places fewer restrictions on out-of-state banks than it does on Georgia-based banks. Consequently, there is no violation of the dormant or negative aspect of the Commerce Clause.
Furthermore, out-of-state banks are still permitted to use in-state payday stores as agents as long as they do not give the payday store the predominate economic interest in the payday loan
Section 16-17-2(c) (2) of the Georgia Act declares arbitration clauses in payday loan contracts void if the payday loan contract is “unconscionable.” See Ga.Code Ann. § 16-17-2(c) (2). The out-of-state banks and payday stores contend that the provisions of the Georgia Act dealing with arbitration are preempted by the Federal Arbitration Act. The plaintiffs, however, lack standing to challenge the arbitration provisions in the Act. 28
For a plaintiff to have standing to sue in federal court, he must allege in his complaint, or otherwise through the course of the proceedings, “that he has suffered an injury in fact”; in other words, “some harm to a legal interest that is actual or imminent, not conjectural or hypothetical.” Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1339 (11th Cir. 2000) (internal quotation marks and citation omitted). ” Id. at 1340 (citing Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724-25, 109 L. Ed. 2d 135 (1990)). There simply being “a `perhaps’ or `maybe’ chance that the arbitration agreement will be enforced . . . is not enough to give [the plaintiffs] standing to challenge its enforceability.” Id. It follows that in order to challenge the validity of a statute that tends to undermine the enforceability of an arbitration agreement, a party must show harm to its interest in enforcing the agreement that is actual or imminent. The party seeking an injunction against enforcement of the statute must show that arbitration, which is a prerequisite to application of the statute, is imminent or certainly impending. It is not enough that there may be arbitration and that the statute may be applied if there is.
The plaintiffs have not met their burden in this regard. They have not even alleged in their complaint or in their motion for a preliminary injunction that any breaches of the loan agreements have occurred or are imminent. They have not alleged that if there are breaches there will be arbitration. The agreement gives either party the right to elect paydayloansohio.net/cities/junction-city/ arbitration but does not require disputes to be arbitrated if neither party elects it. 29