DBSP, by contrast, never ever secured the near future abilities of your own mortgages

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 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 the guarantee “embod[ied] a contract different from the fresh new offer to offer roof material,” the fresh breach where caused the fresh new statute away from limitations anew (id. from the 610). It was so due to the fact accused inside the Bulova See “did not merely ensure the position or https://paydayloanalabama.com/chatom/ efficiency of the services and products, however, agreed to manage a support” (id. on 612). You to provider are the latest independent and line of hope to correct a good defective rooftop-a life threatening component of the fresh parties’ price and you will “another, independent and extra incentive to acquire” the brand new defendant’s equipment (id. on 611). Properly, the “agreements thinking about features . . . was basically at the mercy of a half dozen-12 months statute . . . running ages occasioned anytime a breach of one’s responsibility to help you repair the newest fused rooftop occurred” (id.).

DBSP’s clean out or repurchase responsibility was the newest Trust’s fix for good infraction ones representations and you will warranties, perhaps not a hope of loans’ upcoming efficiency

The corrective term within the Bulova View explicitly guaranteed upcoming abilities regarding new rooftop and undertook a promise to correct the latest roof when the they don’t match the seller’s ensure. It [*7] portrayed and you will rationalized certain information about the fresh new loans’ features as of , in the event the MLPA and you can PSA were done, and expressly stated that men and women representations and you can warranties don’t survive the fresh new closing go out. In the place of the latest independent guarantee into the Bulova See, DBSP’s remove or repurchase duty could not relatively be considered once the a definite promise from future results. It absolutely was determined by, and indeed derivative away from, DBSP’s representations and you can warranties, hence did not endure the fresh closure and you can was indeed broken, whenever, thereon day. [FN3]

In reality, little from the deal specified that clean out or repurchase obligation do continue for the life of fund

And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which 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 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