DBSP, by contrast, never guaranteed the future results 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 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 kept that the be certain that “embod[ied] an agreement distinctive from the latest price to supply roof information,” new breach where triggered the law out of constraints anew (id. at 610). This was very while the defendant when you look at the Bulova View “didn’t merely ensure the status or show of products, however, offered to manage a support” (id. during the 612). You to provider try the newest independent and you will collection of hope to fix an effective defective roof-a life threatening element of the newest parties’ package and you will “a different, separate and extra bonus to get” the fresh defendant’s unit (id. during the 611). Accordingly, the fresh “agreements contemplating qualities . . . were subject to a half dozen-season law . . . powering ages occasioned when a violation of one’s obligations to resolve the fresh new bonded rooftop happened” (id.).

DBSP’s clean out otherwise repurchase duty is the brand new Trust’s remedy for an excellent infraction ones representations and you can guarantees, maybe not a promise of loans’ upcoming efficiency

The fresh check loans Blue Springs new remedial term within the Bulova Observe expressly secured coming performance out of the newest roof and you may undertook a vow to correct the newest rooftop in the event that it didn’t fulfill the seller’s be certain that. It [*7] depicted and you will justified certain facts about brand new loans’ characteristics since , in the event the MLPA and PSA had been carried out, and expressly stated that people representations and you may warranties failed to survive the new closing time. In lieu of brand new independent make certain for the Bulova Watch, DBSP’s treat or repurchase obligations cannot fairly be considered just like the a distinct guarantee from coming results. It was influenced by, as well as by-product of, DBSP’s representations and warranties, which didn’t endure this new closing and you will had been breached, whenever, on that big date. [FN3]

Indeed, absolutely nothing about price given your eliminate or repurchase duty would last for the life span of your 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