                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.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



      2With 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).
      3These 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



      4The 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.



                                            7
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




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