Ameris Bank et al v. Perez

UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
In re: 	)
)
LUIS SALVADOR PEREZ, 	) 	Chapter 13
) 	Case No.: 25-30259
Debtor. 	)
)
)
AMERIS BANK, 	)
)
Plaintiff, 	)
)
v. 	)
)
LUIS SALVADOR PEREZ, 	) 	Adversary Proceeding
) 	No. 25-3026
Defendant/Third-Party Plaintiff, 	)
)
v. 	)
)
FERNANDO YCAZA, 	)
)
Third-Party Defendant. 	)
)
ORDER DENYING MOTION TO REVISE ORDER
THIS MATTER is before the court on the Motion to Revise Order Granting
Motion to Dismiss Third-Party Claim Against Fernando Ycaza (“Motion”) filed by the
_____________________________
Laura T. Beyer
United States Bankruptcy Judge
FILED & JUDGMENT ENTERED
Christine F. Ramsey
Western District of North Carolina
March 13 2026
Clerk, U.S. Bankruptcy Court
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Defendant/Third-Party Plaintiff (“Perez”) on January 5, 2026. 	The December 22,
2025 Order Granting Motion to Dismiss Third-Party Claim Against Fernando Ycaza
(“Order”) dismisses Perez’s unfair and deceptive trade practices claim against the
Third-Party Defendant (“Ycaza”) with prejudice. The Motion notes that Federal Rule
of Civil Procedure 54(b)1 treats orders partially resolving a lawsuit as final “only if
the court expressly determines that there is no just reason for delay” and asks the
court to revise its Order to either add the words from Rule 54(b) required for a final
judgment or to change the dismissal of Perez’s third-party complaint from with to
without prejudice.
The court held a hearing on the Motion on January 27, 2026, and attorneys
representing Perez, Ycaza, and the Chapter 13 Trustee appeared.2 Perez’s attorney
argued that making his client wait to appeal the Order until after the court resolves
all the claims in this adversary proceeding would be a huge expense and a waste of
judicial resources and might require a second trial. 	He also said Ycaza could be
required to participate in discovery if the Order is interlocutory and noted that the
Trustee was confused about the relief requested in the Motion. Ycaza’s attorney said
he disagreed about his client being subject to discovery after the entry of the Order3
but otherwise did not take a position on the Motion. The Trustee’s attorney also did
not take a position.
1 Federal Rule of Bankruptcy Procedure 7054 makes Federal Rule of Civil Procedure 54(a)–(c)
applicable to adversary proceedings.
2 The court held the January 27 hearing by video conferencing due to inclement weather.
3 The court indicated it agreed with Ycaza regarding whether he is subject to discovery post-dismissal.
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Rule 54(b) provides:
Judgment on Multiple Claims of Involving Multiple
Parties. When an action presents more than one claim for
relief—whether as a claim, counterclaim, crossclaim, or
third-party claim—or when multiple parties are involved,
the court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, 	any 	order 	or 	other 	decision, 	however
designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties and
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and
liabilities.
The rule sets up a presumption that an order dealing with some but not all claims in
an 	adversary 	proceeding 	is 	interlocutory 	“to 	prevent 	piecemeal 	appeals 	when
multiple claims are resolved in the course of a single lawsuit.” Braswell Shipyards,
Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993). It also, however, allows trial
courts to vary from the default rule by including a certain phrase (“there is no just
reason for delay”) in the order if “litigants . . . would suffer undue hardship” by
waiting for the completion of the entire lawsuit. Id.
The Fourth Circuit endorsed a test for determining whether there is no just
reason for delay based on the guidance of the Supreme Court and Third Circuit
factors. 	Id. at 1335–36. 	The party seeking an exception to Rule 54(b) bears the
burden of showing that an immediate appeal is appropriate. Id. at 1335 (citing Allis-
Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 3644 (3d Cir. 1975)). The first step
4 Braswell Shipyards cites page 364 of the Federal Reporter, Second Series for this proposition from
Allis-Chalmers, but it is on page 365.
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of the test is to determine whether the judgment is “ ‘final’ in the sense that it is ‘an
ultimate disposition of an individual claim entered in the course of a multiple claims
action.’ ” Id. at 1335 (quoting Curtis-Wright5 Corp. v. Gen. Elec. Co., 446 U.S. 1, 7
(1980)). If it is, the court should determine whether there is no just reason for delay,
id. (citing Curtis-Wright, 446 U.S. at 8), through consideration of the following
factors:
(1) 	the 	relationship 	between 	the 	adjudicated 	and
unadjudicated claims; (2) the possibility that the need for
review 	might 	or 	might 	not 	be 	mooted 	by 	future
developments in the district court; (3) the possibility that
the reviewing court might be obliged to consider the same
issue a second time; (4) the presence or absence of a claim
or counterclaim which could result in a set-off against the
judgment sought to be made final; (5) miscellaneous factors
such 	as 	delay, 	economic 	and 	solvency 	considerations,
shortening the time of trial, frivolity of competing claims,
expense, and the like,
id. at 1335–36 (quoting Allis-Chalmers, 521 F.2d at 364). The examination is “tilted
from the start against fragmentation of appeals” and “necessarily case-specific.” Id.
at 1335 (quoting Spiegel v. Trs. of Tufts Coll., 843 F.2d 38, 43 (1st Cir. 1988)).
The Motion does not contain any justification for its request to vary from the
default rule or any authority in support of Perez’s position and instead reads as if the
omission of the magic words was simply an oversight by the court. 	See Motion at 2
(“The Dismissal Order dismissed Perez’s third-party claim against Ycaza with
prejudice, seemingly intending to enter a final judgment in Ycaza’s favor, but the
Dismissal Order contains no determination ‘that there is no just reason for delay.’ ”).
5 The correct name of the petitioner in this case is “Curtiss-Wright Corporation.”
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At the January 27 hearing, Perez argued that judicial economy and preventing
unnecessary expense justified the relief sought in the Motion, but those are the goals
of Rule 54(b)’s default rule. Perez claims that multiple trials could be required if his
Motion is not granted, but multiple trials could also result from allowing an
immediate appeal of the Order. An immediate appeal could also lead to inconsistent
results in the trial and appellate courts.
The Braswell Shipyards test does not support the relief sought in the Motion.
The Order is “final” in the Curtiss-Wright sense because it does resolve one claim in
a multi-claim action, but the factors do not support a determination that there is no
just reason for delay. The adjudicated and unadjudicated claims are closely related,
as Perez argues that the fraud alleged by the Plaintiff was actually perpetuated by
Ycaza. Future developments in the lawsuit might obviate the need for any appellate
review since Perez might not seek appeal of the Order if the Plaintiff’s claims against
him fail. If the court allows an immediate appeal, the appellate court might have to
consider the same claim again after the resolution of the remainder of the lawsuit.
While there is no concern about the possibility of set off since Perez’s claim failed, the
miscellaneous factor is at best neutral as to Perez’s position.
Similarly, there is no basis to grant Perez’s alternate request for relief—
changing the status of the dismissal of his claim from with to without prejudice. The
language of the Motion suggests that Perez incorrectly believes there is a relationship
between the type of dismissal and whether a court should allow an immediate appeal.
There is no reference in Rule 54(b) or the Braswell Shipyards test to whether the
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decision involved prejudice or not. 	An immediate appeal could be appropriate for a
dismissal with or without prejudice, and the default rule might be well-suited to
either type of dismissal. 	The application of prejudice to an order is not the
determinative factor in whether to allow an immediate appeal pursuant to Rule 54(b).
Perez’s Motion does not present sufficient justification for the court to revise
its Order. The hardship identified by Perez from the delay of his ability to appeal is
the normal type of hardship associated with an order resolving part of a lawsuit and
not the undue hardship required to justify an immediate appeal. Accordingly, the
court hereby DENIES the Motion.
SO ORDERED.
This Order has been signed 	United States Bankruptcy Court
electronically. The Judge’s
signature and Court’s seal
appear at the top of the Order.
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