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 fast cash loan Hackleburg AL 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).
We held the ensure “embod[ied] a contract different from the deal to offer roof content,” the fresh breach of which triggered the brand new statute out-of limitations anew (id. from the 610). This was thus since the defendant inside Bulova Observe “didn’t just guarantee the status otherwise results of your own services and products, however, accessible to do a help” (id. within 612). You to provider is actually the brand new separate and you can type of guarantee to repair an effective defective rooftop-a critical component of this new parties’ offer and “a different sort of, separate and extra extra purchasing” new defendant’s device (id. at the 611). Consequently, the newest “preparations contemplating attributes . . . have been subject to a half dozen-year statute . . . running ages occasioned anytime a violation of one’s responsibility in order to repair the fresh fused roof occurred” (id.).
DBSP’s eliminate or repurchase duty is the fresh Trust’s remedy for an excellent breach of these representations and warranties, not a guarantee of loans’ future overall performance
The new corrective clause within the Bulova View explicitly secured future efficiency out-of the latest roof and you can undertook a hope to repair the latest rooftop in the event that it failed to fulfill the seller’s make certain. It [*7] depicted and you will justified specific factual statements about the latest loans’ services as of , when the MLPA and you will PSA was performed, and you can expressly stated that men and women representations and you will guarantees don’t endure the fresh new closure time. In place of the separate be certain that within the Bulova Check out, DBSP’s beat or repurchase responsibility could not reasonably be looked at given that a distinct pledge of coming show. It actually was dependent on, and indeed by-product out-of, DBSP’s representations and you can warranties, which don’t endure the latest closing and you may was in fact broken, whenever, thereon date. [FN3]
In fact, little in the offer given the lose otherwise repurchase responsibility would last for living of one’s 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
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