928 COUNTRY BACK TRUST v. BANK OF AMERICA (2021)

ORDER VACATING JUDGMENT AND REMANDING

A panel of this court originally issued a disposition resolving this matter. 928 Country Back Tr. v. Bank of Am., N.A., Docket No. 79543 (Order of Reversal and Remand, Sept. 18, 2020). On March 5, 2021, we granted respondent Bank of America's petition for en banc reconsideration of that decision. Having reconsidered the matter, we vacate the panel's September 18, 2020, disposition and issue this disposition in its place.

In 7510 Perla Del Mar Avenue Trust v. Bank of America, N.A., 136 Nev. 62, 63, 458 P.3d 348, 349 (2020) (Perla), we held that a formal superpriority tender is excused “when evidence shows that the party entitled to payment had a known policy of rejecting such payments.” When the panel rendered its previous disposition, it relied on Bank of America, N.A. v. Thomas Jessup, LLC Series VII, Docket No. 73785 (Order Affirming in Part, Reversing in Part and Remanding, May 7, 2020), to conclude that the evidence in this case was necessarily insufficient to satisfy Perla’s standard. In light of the arguments raised in Bank of America's petition for en banc reconsideration, we conclude that the district court must consider the evidence presented under the Perla standard, which the district court did not have at its disposal when it rendered its judgment.¹ We leave to the district court's discretion as to how that should be done. Accordingly, we

ORDER the judgment of the district court VACATED AND REMAND this matter to the district court for proceedings consistent with this order.

FOOTNOTES

1.   We decline to address Bank of America's arguments that the district court did not address in the first instance. See 9352 Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020) (declining to address an issue that the district court did not resolve).