DBSP, by comparison, never secured the long run 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 your ensure “embod[ied] an agreement not the same as the fresh contract available roof product,” the fresh violation of which caused the newest statute off limitations anew (id. at 610). This was therefore because defendant in the Bulova See “didn’t only guarantee the position otherwise abilities of your goods, but offered to create an assistance” (id. within 612). That service is the latest separate and you will line of vow to correct a great faulty roof-a life threatening element of the brand new parties’ package and “a unique, independent and additional added bonus to find” the latest defendant’s product (id. during the 611). Appropriately, brand new “plans contemplating features . . . were at the mercy of a six-seasons statute . . . running years occasioned each time a violation of your obligations to fix this new fused rooftop taken place” (id.).
DBSP’s get rid of otherwise repurchase obligation try the fresh new Trust’s remedy for a violation ones representations and you will warranties, not a promise of the loans’ coming abilities
New remedial clause within the Bulova Watch expressly guaranteed future efficiency out-of the brand new rooftop and you will undertook a promise to correct the newest rooftop when the they did not satisfy the seller’s make certain. They [*7] represented and you can rationalized certain details about the new loans’ qualities at the time of , if MLPA and you can PSA have been carried out, and you may explicitly reported that men and women representations and you may warranties didn’t survive the latest closure day. In place of the fresh new separate verify when you look at the Bulova Check out, DBSP’s cure or repurchase obligation couldn’t relatively be regarded as because the a distinct hope away from future overall performance. It had been determined by, and indeed by-product regarding, DBSP’s representations and you will guarantees, hence failed to survive the brand new closing and you can were broken, whenever, on that go out. [FN3]
Indeed, nothing throughout the contract specified that beat or repurchase duty would last for the life span of one’s 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 loans in Fairview 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