DBSP, in comparison, never protected the near future show 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 kept that guarantee “embod[ied] an agreement different from brand new contract to offer roofing system content,” the fresh new breach of which brought about this new statute out of limits anew (id. on 610). It was thus because defendant from inside the Bulova Check out “failed to just make sure the status or overall performance of one’s items, however, offered to carry out a service” (id. in the 612). One solution was new separate and collection of pledge to repair a good defective roof-a serious component of the parties’ deal and you may “a special, independent and additional extra to order” the defendant’s tool (id. in the 611). Appropriately, the fresh new “arrangements thinking about features . . . was basically at the mercy of a six-seasons statute . . . powering age occasioned whenever a breach of obligations in order to fix brand new fused rooftop taken place” (id.).

DBSP’s lose or repurchase duty was the fresh new Trust’s treatment for a beneficial violation of them representations and you can warranties, perhaps not a guarantee of one’s loans’ coming abilities

The fresh new corrective term within the Bulova Observe expressly protected upcoming results away from the newest rooftop and you can undertook a guarantee to correct the fresh new roof when the it failed to match the seller’s make sure. It [*7] depicted and you will warranted certain details about the fresh cash advance Daleville loan new loans’ services since , when the MLPA and you can PSA was indeed performed, and you may expressly reported that the individuals representations and you will guarantees didn’t survive the brand new closure time. As opposed to the latest independent verify when you look at the Bulova See, DBSP’s eliminate or repurchase obligations couldn’t relatively be looked at as a definite promise regarding coming performance. It had been influenced by, and indeed derivative out-of, DBSP’s representations and you can guarantees, which don’t endure brand new closing and you may had been broken, whenever, on that day. [FN3]

In reality, absolutely nothing regarding the deal specified your remove or repurchase duty perform continue for living of your loans

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