UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1485

WILLIAM R. SCHERER; ANNE SCHERER,

Plaintiffs - Appellants,

v.

STEEL CREEK PROPERTY OWNERS ASSOCIATION; PAUL IOOSS,

Defendants - Appellees,

and

STEPHEN IOOSS,

Defendant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:13-cv-00121-MR-DLH)

Submitted: February 7, 2017 Decided: March 29, 2017

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James M. Kimzey, Candace A. Mance, CONRAD & SCHERER, LLP, 

Brevard, North Carolina, for Appellants. Jeffrey S. Bolster, J. 

Wriley McKeown, BOLSTER ROGERS & MCKEOWN, LLP, Charlotte, North 

Carolina; Paul E. Culpepper, YOUNG, MORPHIS, BACH & TAYLOR, 

L.L.P., Hickory, North Carolina, for Appellees.
2

Unpublished opinions are not binding precedent in this circuit.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

William R. Scherer and Anne Scherer appeal the decision of 

the district court in this diversity action raising various 

claims pursuant to North Carolina law. The claims related to 

property the Scherers purchased in the Steel Creek development 

of Transylvania County, North Carolina. The property was 

subject to thirteen protective covenants (“the Covenants”), 

compliance with which was overseen by Steel Creek Property 

Owners Association (“the POA”). As relevant here, the Covenants 

established rules for new construction and for road maintenance

fees.

Based on interactions with the POA over development of 

buildings and roads to be part of a horse farm the Scherers were 

developing on their Steel Creek property and on disputes over 

assessments by the POA for the Scherers’ lots, the Scherers 

filed this suit against the POA and two of its officers.1 The 

complaint alleged, as relevant here, several violations of the 

North Carolina Debt Collection Act, N.C. Gen. Stat. §§ 75-50 to 

-56 (2015) (NCDCA), and sought declaratory relief and attorney’s 

fees. Following discovery, the POA and the Scherers cross-moved 

 1 The Scherers do not challenge the district court’s 

dismissal of the single claim against Paul Iooss—one of the 

POA’s officers. The other officer, Stephen Iooss, is not a 

party to this appeal.
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for summary judgment. The district court found the retroactive 

assessments imposed on the Scherers to be proper but held that 

the POA had overstated the rate of interest. Accordingly, the 

court awarded the Scherers a rebate of the overcharged interest. 

The court denied all requests for declaratory relief and 

declined to enter a fee award for either side. The Scherers 

timely appealed.

I. NCDCA Claims

We review a district court’s grant of summary judgment de 

novo, “viewing all facts and reasonable inferences therefrom in 

the light most favorable to the nonmoving party.” Smith v. 

Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (internal quotation 

marks omitted). Summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986).

The elements of a claim for unfair debt collection 

practices under the NCDCA are spread between two statutes. 

First, a plaintiff must establish (1) the existence of a debt, 

(2) owed by a consumer, and (3) attempted to be collected by a 

debt collector. Reid v. Ayers, 531 S.E.2d 231, 233 (N.C. Ct. 

App. 2000); see N.C. Gen. Stat. § 75-50(1)-(3) (2015) (defining 

terms). Second, a plaintiff “must satisfy the more generalized 
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requirements of all unfair or deceptive trade practice claims,” 

Reid, 531 S.E.2d at 234, namely, “that [(4)] the defendants 

committed an unfair or deceptive act or practice, or an unfair 

method of competition, [(5)] in or affecting commerce, [(6)] 

which proximately caused actual injury to the plaintiff[] or to 

the plaintiff[’s] business,” Walker v. Sloan, 529 S.E.2d 236, 

243 (N.C. Ct. App. 2000); see N.C. Gen. Stat. § 75-1.1 (2015).2 

The Scherers sought recovery under the NCDCA for the POA’s 

allegedly illegal demands for retroactive assessments of road 

maintenance fees and interest, improper threats of liens and 

attorney’s fees, and harassing dunning letters. Four of the 

Scherers’ five NCDCA arguments are predicated on the contention 

that the POA sought assessments to which it was not entitled. 

Before the district court, the Scherers contended that equitable 

estoppel and the doctrine of accord and satisfaction precluded 

the POA from imposing retroactive assessments. On appeal, the 

Scherers make no mention of these arguments, instead claiming 

that the POA cannot recover retroactive assessments based on the 

doctrine of quasi-estoppel.3 Because each of these arguments 

 2 With respect to the fourth element, nonexhaustive lists of

qualifying unfair or deceptive acts or practices are enumerated 

in N.C. Gen. Stat. §§ 75-51 to -55 (2015). 

3 These two types of estoppel have different elements and 

are thus distinct claims. Compare Countrywide Home Loans, 

Inc. v. Bank One, N.A., 661 S.E.2d 259, 262-63 (N.C. Ct. App. 

(Continued)
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either has been abandoned or is raised for the first time on 

appeal, these four NCDCA claims necessarily fail. See In re 

Under Seal, 749 F.3d 276, 289-91 (4th Cir. 2014) (“[T]he failure 

to first present claims to the district court generally 

forecloses our consideration of [such] matters on appeal.” 

(internal quotation marks omitted)); Mayfield v. Nat’l Ass’n for 

Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) 

(“A party’s failure to raise or discuss an issue in his brief is 

to be deemed an abandonment of that issue.” (internal quotation 

marks omitted)).

As to their remaining NCDCA claim, the Scherers asserted 

that the POA incorrectly stated in a 2013 letter that the 

assessments were past due and had accrued interest. Even 

assuming this to be true, such conduct does not fall within 

§ 75-54(4)’s proscription on falsely representing the character 

of a debt, in our view. Thus, we conclude that the district 

court properly dismissed this claim.

II. Declaratory Relief

We review for abuse of discretion a district court’s 

decision not to entertain a claim for declaratory relief. 

 

2008) (defining equitable estoppel), with Shell Island 

Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406, 413 (N.C. 

Ct. App. 1999) (defining quasi-estoppel).
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Ellis v. La.-Pac. Corp., 699 F.3d 778, 788 (4th Cir. 2012). 

Declaratory relief may be granted only where there is an actual 

controversy under Article III of the Constitution. Volvo 

Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 

(4th Cir. 2004). To determine whether an actual controversy 

exists, courts look to “whether the conflicting contentions of 

the parties present a real, substantial controversy between 

parties having adverse legal interests, a dispute definite and 

concrete, not hypothetical or abstract.” Babbitt v. United Farm 

Workers Nat’l Union, 442 U.S. 289, 298 (1979) (ellipsis and 

internal quotation marks omitted). 

The Scherers argue that the district court abused its 

discretion in declining (1) to declare that the POA cannot 

prevent their development of a horse farm,4 (2) to define the 

terms “improved” and “vacant” under the Covenants, as related to 

the rate of fees due on each of their lots, and (3) to declare 

the “harmony of design” provision in the Covenants to be 

arbitrary and unenforceable.

The district court found the first request moot because the 

POA had conceded in its opposition to the Scherers’ motion for 

 4 The Scherers styled this request as a freestanding cause 

of action for equitable estoppel. However, the substance of 

this claim clearly relates to the declaratory relief sought in 

their complaint.
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summary judgment that it did not challenge the Scherers’ right 

to build a horse farm on their property or oppose the plans 

submitted and the development to date. The Scherers made no 

arguments below concerning the continued viability of this 

claim. For the first time on appeal, the Scherers argue that 

the voluntary cessation exception to the mootness doctrine keeps 

this controversy alive. See Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Because 

this argument was not presented to the district court, it is not 

properly before us. See In re Under Seal, 749 F.3d at 290.

Similarly, the Scherers’ complaint did not ask the court to 

define the terms “improved” and “vacant,” nor did the Scherers 

seek this relief at the summary judgment stage. The Scherers

also failed to include their harmony of design claim in their 

complaint. See Wahi v. Charleston Area Med. Ctr., Inc., 562 

F.3d 599, 617 (4th Cir. 2009) (“[A] plaintiff may not raise new 

claims after discovery has begun without amending his 

complaint.”). We therefore decline to review these claims on 

appeal.

III. Attorney’s Fees

We review fee award determinations for abuse of discretion. 

Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 

675 (4th Cir. 2015). Noting that the POA was successful on most 

of the Scherers’ claims, but that the Scherers prevailed on the 
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calculation of interest, the district court declined to award 

attorney’s fees to either side. We find this to be an 

appropriate exercise of discretion.

IV. Conclusion

Accordingly, we affirm the order of the district court. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED