DBSP, by contrast, never guaranteed the long term overall performance 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).

I held that the verify “embod[ied] a binding agreement different from the brand new deal to supply roofing content,” the fresh new infraction from which triggered the law from constraints anew (id. on 610). This is therefore given that accused for the Bulova Watch “failed to merely guarantee the updates or results of one’s items, but agreed to do an assistance” (id. within 612). That services are the fresh new separate and you will line of promise to repair a faulty roof-a significant element of brand new parties’ contract and “a new, independent and additional added bonus to acquire” the defendant’s equipment (id. at 611). Consequently, the newest “arrangements thinking about properties . . payday loan Brighton . were at the mercy of a half a dozen-12 months law . . . running years occasioned whenever a breach of your own duty so you’re able to resolve the fused rooftop happened” (id.).

DBSP’s beat or repurchase duty was the brand new Trust’s treatment for an excellent violation of these representations and you may warranties, maybe not a guarantee of your loans’ upcoming performance

New corrective term during the Bulova See expressly guaranteed coming show out of the fresh new rooftop and you may undertook a guarantee to correct the rooftop if the it failed to fulfill the seller’s verify. It [*7] illustrated and justified particular facts about the loans’ services at the time of , if MLPA and you can PSA was indeed conducted, and you may expressly stated that those people representations and guarantees failed to survive brand new closure date. Unlike new separate be sure inside Bulova Observe, DBSP’s treat otherwise repurchase duty cannot relatively be regarded as since a definite vow of upcoming results. It absolutely was influenced by, as well as by-product away from, DBSP’s representations and you will guarantees, and this didn’t endure this new closure and had been breached, whenever, thereon time. [FN3]

Actually, absolutely nothing about bargain specified that cure or repurchase duty create last for the life of your financing

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