This is another arbitration dispute in which the parties are litigating whether or not they should be litigating. The familiar scenario is that the parties agree in writing to arbitrate any disputes between them, but then one party files a lawsuit taking the position that the agreement to arbitrate is inapplicable, invalid, or unenforceable for one reason or another. Here the plaintiff contends the agreement to arbitrate does not cover his federal statutory claims, is unenforceable because he cannot afford to arbitrate, and is invalid because it does not afford him the remedial relief to which he is entitled under the statutes.
Based on the agreement, the district court compelled arbitration and dismissed the lawsuit. We conclude that the agreement is broad enough to cover the dispute; any problem involving whether the plaintiff can afford the cost of arbitration is no problem in light of the defendant’s stipulation to pay the plaintiffs costs of arbitration; and because any impermissible restrictions on the remedies are severable from the other parts, the agreement itself is not invalid. As a result, we affirm the district court’s decision to send the case to arbitration where, if the plaintiff establishes his right to relief, the arbitrator will decide the remedies issues.
I.
To finance the purchase of his home, Jonah Anders borrowed funds from Hometown Mortgage Services in a transaction brokered by Mortgage Brokers Group of Tuscaloosa. At the closing, Anders signed a number of documents including an arbitration agreement. 1 The agreement spe *1027 cifically refers all disputes between Hometown Mortgage and Anders to arbitration. And it limits the remedies available to Anders, stating that “the arbitrator(s) may not award punitive damages, treble damages, penalties, or attorney’s fees.” Just in case that or some other part of the agreement does not hold up, the agreement includes a severability or savings clause specifying that if a court declares part of the agreement invalid or unenforceable, the remainder of the agreement will not be affected.
Anders sued both Mortgage Brokers and Hometown Mortgage alleging that they violated the Real Estate Settlement Procedures Act (RE SPA) and the Truth in Lending Act (TILA). Mortgage Brokers failed to respond to the complaint, and the district court issued a default against it. Hometown Mortgage, on the other hand, filed a motion to compel arbitration based on the arbitration agreement. In response, Anders asserted that he could not afford arbitration, to which Hometown Mortgage replied with a stipulation that if the trial court found Anders unable to afford the costs associated with arbitration and found that his inability to pay voided the agreement, Hometown Mortgage would bear the costs of arbitration that Anders otherwise would have had to pay. Based on that stipulation, the district court issued an order compelling arbitration and dismissing the case without prejudice. Anders then brought this appeal.
II.
Anders presents three reasons why he should not be forced to arbitrate his claims against Hometown Mortgage: the agreement to arbitrate does not reach his claims; the agreement is unenforceable because he cannot afford arbitration; and the agreement is invalid because of its remedial restrictions. Each of these contentions, through which Anders attempts to avoid arbitration entirely, falls within the category of “gateway matters” which the Supreme Court has instructed us that courts and not arbitrators should decide,
Green Tree Financial Corp. v. Bazzle,
539 U.S. —, —,
Anders first contention is that because the agreement to arbitrate contains remedial limitations, and because he is entitled to the full remedies afforded by the federal statutes under which his claims arise, the agreement must not reach the disputes involving his claims. TILA and RESPA do provide for relief and remedies that may be excluded by the agreement, which does not permit the arbitrator to award punitive damages, treble damages, penalties, or attorney’s fees. For example, Anders alleges that Hometown Mortgage paid referral fees or kickbacks to Mortgage Brokers, in violation of Section 8 of RESPA, 12 U.S.C. § 2607(a), for which the statute provides treble damages, id. § 2607(d). Anders also alleges that Hometown Mortgage failed to disclose certain finance charges and understated the annual percentage rate it charged, all in violation of TILA, 15 U.S.C. § 1638, and Regulation Z, 12 C.F.R. §§ 226.4, 226.18, and 226.22. TILA entitles successful plaintiffs to statutory damages as well as any actual damages. 15 U.S.C. § 1640(a). *1028 Anders seeks attorney’s fees, which both TILA and RESPA allow prevailing plaintiffs to recover, TILA, 15 U.S.C. § 1640(a)(3); RESPA, 12 U.S.C. § 2607(d)(5).
Anders contends that because the arbitrator cannot award the full relief that is permitted by the statutes, the parties must not have intended for the arbitration agreement to cover these statutory claims. The clear words of the agreement, however, foreclose that position. It says:
[A]ny action, dispute, claim, counterclaim or controversy (“Dispute” or “Disputes”), between us, including any claim based on or arising from an alleged tort, shall be resolved in Birmingham, Alabama by ARBITRATION as set forth below. The term “Disputes” shall include all actions, disputes, claims, counterclaims or controversies arising in connection with the Loan, Note or the Security Instrument, any collection of any indebtedness owed to Lender, any security or Collateral given to Lender, any action taken (or any omission to take any action) in connection with any of the above, any past, present and future agreement between or among us (including the Security Instrument), and any past, present or future transactions between or among us. 2
The agreement could not have been broader. Any disputes means all disputes, because “ ‘any’ means all.”
Merritt v. Dillard Paper Co.,
Having decided that gateway issue against Anders, we turn to his next contention, which is that the agreement should not be enforced because he cannot afford the costs of arbitration. It may be that an agreement to arbitrate is unenforceable if the cost of arbitration precludes the effective vindication of statutory rights in arbitration.
Green Tree Fin. Corp. v. Randolph,
The agreement provides that arbitration will be in accordance with the American Arbitration Association Rules for Commercial Financial Disputes. Those rules specify that “the AAA may, in the event of extreme hardship on the part of any party, defer or reduce the administrative fees.” AAA Rules for Commercial Financial Disputes, Rule 46. They also provide that all other expenses of the arbitration, including travel, costs of witnesses, and fees of the arbitrator, while ordinarily “borne equally by the parties” may be assessed by the arbitrator against any specified party. Id. Rule 47. We need not decide if those provisions of the AAA rules alone are enough to preclude a finding that arbitra *1029 tion would be prohibitively expensive for Anders, because there is more.
The more is that Hometown Mortgage stipulated in the district court that if An-ders was unable to pay for arbitration and his inability would preclude arbitration, Hometown Mortgage “would agree to bear the administrative fees which Anders would otherwise be required to pay in the institution of an arbitration action.” At oral argument before us, Hometown Mortgage’s counsel said the stipulation means her client will pay “what we need to pay to make it fair for Mr. Anders,” and the arbitrator will decide how much Hometown Mortgage should pay of Anders’ costs. Counsel agreed that Hometown Mortgage’s stipulation should be construed expansively, and we interpret her representations to us to mean that no declaration of invalidity because of prohibitive costs is necessary before her client will help with Anders’ costs. 3 Given Hometown Mortgage’s willingness to bear the costs of arbitration that Anders is unable to afford (as the arbitrator determines), it follows that Anders has not demonstrated that arbitration would be prohibitively expensive for him. 4
Anders’ final contention is that the arbitration agreement cannot be enforced since it contains provisions that are invalid because they cut down remedies otherwise available to him under the federal statutes upon which his claims are based. This contention implicates general principles of arbitration law, such as the Federal Arbitration Act’s pronouncement that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The Supreme Court has interpreted that statutory pronouncement as “a congressional declaration of a liberal federal policy favoring arbitration agreements.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
Agreements to arbitrate are akin to forum-selection clauses.
Cunningham v. Fleetwood Homes of Ga., Inc.,
Anders relies upon
Paladino v. Avnet Computer Technologies, Inc.,
Other circuits have handled issues involving remedy restriction provisions in arbitration agreements differently than we did in
Paladino.
They let the arbitrator decide in the first instance whether remedial limitations are permissible.
See, e.g., Hawkins v. Aid Association For Lutherans,
The difference between those decisions of the First, Third, Seventh, and Eighth Circuits and our Paladino decision is that in those circuits an agreement containing a provision that impermissibly precludes or limits statutorily authorized remedies is still a valid agreement pursuant to which the case is to be sent to arbitration, where the arbitrator decides the remedies issues along with all the others. Under Paladi-no, it is not an issue for the arbitrator, at least not under the facts and circumstances of that decision.
Of course we have no need to decide whether, in the circumstances it involved,
Paladino
is the better approach; that decision is the law of this Circuit regardless of our view of it.
See Smith v. GTE Corp.,
This case is different from Paladino in a way that leads us to conclude that even if the remedial restrictions within the arbitration agreement in this case are invalid, as Anders argues, the parties must still arbitrate. Necessarily implicit in the Pa-ladino decision is the proposition that the invalid remedial restrictions were not sev-erable from the remainder of the arbitration agreement in that case. Otherwise, this Court would not have struck down the entire agreement as it did in affirming the district’s court’s refusal to order arbitration. Nothing in the Paladino decision indicates that there was a severability provision in that agreement to arbitrate; sev-erability is not even mentioned in the opinion of the Court. 6
By contrast, the arbitration agreement in this case contains a severability provision that evidences the parties’ intention to enforce the remainder of the agreement in the event any portion of it is deemed invalid.
7
If the severability provision is given
*1032
effect, it means that in this ease, unlike in
Paladino,
the remainder of the arbitration agreement survives any invalidity of its remedial restrictions. Whether the sever-ability provision is to be given effect is a question of state law, because in placing arbitration agreements on an even footing with all other contracts, the FAA makes general state contract law controlling.
See Paladino,
Alabama law favors severability, and it gives full force and effect to sever-ability clauses. Two recent decisions of the Supreme Court of Alabama — which happen to be in arbitration cases — illustrate. In
Ex Parte Thicklin,
The decision in
Paladino,
in which the invalid portion of the arbitration agreement was not severed, is distinguishable.
The severability determination decides the arbitration question. Because any invalid provisions are severable, the underlying claims are to be arbitrated regardless of the validity of the remedial restrictions. With or without those provisions, the case goes to arbitration. Whether the agreement is valid as written or suffers invalid provisions that must be removed under the forgiving eye of the severance clause, there is a valid agreement to arbitrate in place.
Since the case is going to arbitration, an arbitrator and not a court should decide the validity of the remedial restriction provisions, because “[a] court compelling arbitration should decide only such issues as are essential to defining the
*1033
nature of the forum in which a dispute will be decided.”
Musnick v. King Motor Co. of Ft. Lauderdale,
We realize that the Supreme Court of Alabama in
Thicklin
and
Celtic Life
did decide the validity of the challenged remedial restrictions in those cases before sending the disputes to arbitration. If it were a matter of general contract law, we would follow the
Thicklin
and
Celtic Life
approach here, because Alabama law applies to the general contract questions in this case. However, unlike severability, whether a court or arbitrator is to decide particular issues is not a question of contract law, but is instead governed by the FAA; it is a federal law issue to be decided under the “body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [FAA],”
Moses H. Cone,
III.
We have decided all the gateway issues: whether the arbitration agreement covers this dispute; whether it is unenforceable because prohibitively expensive; and whether any invalid provisions are severable. Our decision of those issues compels the conclusion that arbitration is the proper forum for settling the dispute between these parties. Having decided the issues “essential to defining the nature of the forum in which a dispute will be decided,”
Musnick,
AFFIRMED.
Notes
. Anders actually signed two documents pertinent to this appeal: The arbitration agreement and a mortgage rider. The documents include materially identical remedial restrictions and severability clauses. For the sake of simplicity, we will generally refer to both of those documents as the arbitration agreement.
. The quotation is from the arbitration agreement. The mortgage rider contains materially, although not literally, identical language. See note 1, above.
. Counsel for Hometown Mortgage did say at oral argument that her client’s stipulation does not cover Anders' attorney's fees, but that is not what the Green Tree issue which we are discussing is about.
. Our decision of this issue is consistent with our recent decision in
Musnick v. King Motor Co. of Ft. Lauderdale,
. Anders' additional reliance upon
Perez v. Globe Airport Sec. Servs.,
. The opinions in
Paladino
are presented in a confusing way. Chief Judge Hatchett's opinion is presented first, but no other member of the panel joined it,
. The arbitration agreement in this case states:
*1032 If for any reason a court of competent jurisdiction should declare all or any part of this Agreement invalid or unenforceable, then the remainder of this Agreement, or the application of such provision or provisions to persons, entities or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law....
The mortgage rider contains a materially, though not literally, identical provision.
. We have no occasion at this time to decide the extent to which that decision of the arbitrator about the validity of the remedial provisions will be reviewable in court.
