DBSP, by comparison, never ever secured tomorrow abilities of mortgage loans

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DBSP, by comparison, never ever secured tomorrow abilities of mortgage loans

Although parties may contractually agree to undertake a separate obligation, the breach of which does not arise until some future date, the repurchase obligation undertaken by DBSP does not fit this description. To support its contrary position, the Trust relies on our decision in Bulova Watch Co. v <**25>Celotex Corp. (46 NY2d 606 ), where we considered whether the separate repair clause in a contract for the sale of a roof constituted a future promise of performance, the breach of which created a cause of action. The separate clause the seller included in that contract was a “20-Year Guaranty Bond,” which “expressly guaranteed that [the seller] would ‘at its own expense make any repairs . . . that may become necessary to maintain said Roof’ ” (id. at 608-609).

We held that ensure “embod[ied] a binding agreement not the same as the offer to offer roofing material,” brand new violation where caused brand new law of restrictions anew (id. at the 610). This is very since accused into the Bulova Observe “don’t only make sure the status or abilities of the products, however, provided to manage an assistance” (id. in the 612). You to service are new separate and you may distinctive line of promise to fix an excellent faulty roof-a significant part of the parties’ contract and you can “a new, independent and extra incentive to acquire” the new defendant’s device (id. on 611). Appropriately, the fresh “plans thinking about functions . . . was basically susceptible to a half a dozen-12 months statute . . . running many years occasioned each time a violation of the responsibility so you can resolve the latest bonded roof took place” (id.).

DBSP’s eliminate otherwise repurchase responsibility is the newest Trust’s remedy for a good breach ones representations and you can guarantees, maybe not a hope of one’s loans’ future abilities

The remedial term during the Bulova Watch expressly protected future efficiency away from brand new rooftop and you will undertook a pledge to repair the latest rooftop if it failed to satisfy the seller’s make sure. It [*7] portrayed and warranted particular factual statements about this new loans’ properties at the time of , in the event the MLPA and you may PSA was executed, and explicitly reported that the individuals representations and guarantees failed to endure the closure time. Instead of new separate make sure for the Bulova View, DBSP’s eliminate otherwise repurchase obligation cannot fairly be looked at since a distinct pledge out of upcoming efficiency. It actually was determined by, as well as by-product out-of, DBSP’s representations and you may guarantees, which didn’t survive new closing and you can was basically breached, if at all, on that big date. [FN3]

In fact, absolutely nothing regarding the deal specified your treat or repurchase duty manage continue for the life of funds

And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which <**25>might default 10 or 20 years after issuance for reasons entirely unrelated to the sponsor’s representations and warranties. The sponsor merely warrants certain characteristics of the loans, and promises that if those warranties and representations are materially false, it will cure or repurchase the non-conforming loans within the same statutory period in which remedies for breach of contract (i.e., rescission and expectation damages) could have been sought. [FN4]

If the cure or repurchase obligation did not exist, the Trust’s only recourse would have been to bring an action against DBSP for breach of the representations and warranties. That action could only have been brought within six years of the date of contract execution. The cure or repurchase obligation is an alternative remedy, or recourse, for the Trust, but the underlying act the Trust complains of is the same: the quality of the loans and their conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase <**25>obligation transformed a standard breach of contract remedy, i.e. damages, into one that lasted for the life of the investment-decades past the statutory period. But nothing in the parties’ agreement evidences such an intent. Historically, we have been