In U.S. Bank National Assn. v. DLJ Mtge. Capital. Inc. (2015 WL 1331628 [Index No. 654147/12, Mar. 24, 2015]) , the Court recently held that a backstop provision, which was virtually identical to that at issue, expressly conditioned DLJ's repurchase obligation on notice by the Trustee both to DLJ, as Seller, and to the Originator (there, Ameriquest, an affiliate of Argent). The provision there, here, expressly required the Trustee to notify DLJ of breaches of representations and warranties, even where DLJ independently discovered the breaches. It also expressly required notification to the Originator of such breaches and enforcement by the Trustee of the Originator's repurchase obligations. The decision distinguished between repurchase protocols, like the backstop provision, under which the obligation to repurchase is triggered by notice, and those under which the repurchase obligation is independently triggered by the seller's own discovery of breaches. In view of the express requirement in the PSA backstop provision that notice must be provided to DLJ and the Originator, the decision held that the backstop provision imposed a condition precedent to suit against DLJ and the Originator. In U.S. Bank, the Trustee argued that its service of a timely repurchase demand on Ameriquest. Argent's affiliate, would have been futile and that its failure to comply with this condition precedent was therefore excusable. There, the complaint alleged, also on information and belief, that Ameriquest was unable to cure or repurchase because it "is no longer doing business." The Trustee also claimed in its brief that Ameriquest was "insolvent" (id.). and submitted news reports, dated September 1, 2007, stating that Ameriquest "is closing" and that Citigroup Inc. had agreed to purchase its assets or the assets of its parent, ACC. As discussed in U.S. Bank, the claim of futility based on the originator's "closing" appears to be based on a dictionary definition of futility as "uselessness," rather than on the legal standard for futility, which requires satisfaction of the elements of impossibility of performance or of repudiation or anticipatory breach of contract. Moreover, the Trustee does not claim that it could not have achieved any recovery from Argent notwithstanding its closing. As held on similar, if not stronger allegations, the complaint fails to plead allegations which, if proved, would establish an excuse for failure to comply with the condition precedent to suit against DLJ on its backstop obligation, based on Argent's inability to perform.