375+ # 0384

It seems there's $3M paid out, maybe he is the one spending that, and feeling his oats....but his posts read like a late night drug induced binge.....Fear and Loathing.....

 

Thanks but AOL cars ??

Hardly mainstream news and a direct crib of the press briefing note

 

Joe

Just because I present an alternative view on some of your understandably one sided postings, does not constitute a bias on my behalf. It is only my observation based upon selective posting and limited knowledge of the law.

The events leading up to the Bonhams auction in September 2013 indicate to me that you were unhappy with the deal that gave the Ohio Contingent 50% of the sale proceeds. My simple and so far unanswered question is, what do you consider to be a fair settlement ?

 

the only possible answer for OJ, outside of a legal settlement hearing/proceeding, is anything less than 100% is NOT acceptable... silly question to expect an answer for while in the middle of legal action

 

Answer is called reps&warranties and indemnification for ongoing litigations..not an unusual case in corporate world, and may explain why Bonhams want to show world record sales in a short time frame...

 

My simple and so far unanswered questions are, as posted [#1649] – and pertain to why you would cancel without taking the required legal action according to London High Court procedure. You are a lawyer, as you say here. I would think the board would like to hear the answers to my questions....



1.) Since, as you say, the selected forum for the HOA was in London, did you file any motions in the London High Court to litigate the HOA on any grounds?

2.) By the time you turned over the parts on 10 September, 2013, had you served any notices with the London High Court for changing the terms of the HOA agreement, halting it when you failed to perform by not delivering the parts in a timely matter ?

3.) The Ohio Court Order to enforce you to deliver the parts to Bonhams agent in Ohio, was not appealed by you before you acted to surrender the parts, is that correct?

4.) So, had you decided not to follow the HOA in Ohio, you did nothing before the surrender of the parts to stop your compliance by a Court Order in any Court concerning the HOA, correct?

5.) Once the parts were supposed to be delivered, and it was clear that you would not make the September deadline, how did you reverse your compliance with the HOA? With a Writ or Court order ?

6.) Was your reversal of the HOA filed in the selected forum of the High Court of London?

7.) Did you send the Ohio titles to Bonhams on the same date, 10 September 2013?

8.) Why would Bonhams have to litigate with you in London unless you filed a Writ in London to cancel the HOA ?

9.) Why did you choose not to use the selected Forum of London for a court authority to put the sale on “Hold” after you failed to deliver the parts in a timely manner?

10.) What is next in this matter in Ohio involving the car?

 

The Court, wherever it ends up, will determine the conduct and motivation of OJ, I but it is abundantly clear, that OJ was unhappy with the Ohio Contingent 50% and was using the parts to frustrate the deal. OJ accuses me of being biased but it is laughable to suggest a reason for taking 5 months to ship the parts was because he couldn't communicate with directly with Florence Swaters and had to go through her agents.

Silly question or not. I would like to hear what OJ or other readers view on what is an equitable solution as this dispute ceased being about justice for the late Karl Kleve a long time ago.

 

The Court, wherever it ends up, will determine the conduct and motivation of OJ, but IMHO it is abundantly clear, that OJ was unhappy with the Ohio Contingent 50% and was using the parts to frustrate the deal. OJ accuses me of being biased but it is laughable to suggest a reason for taking 5 months to ship the parts was because he couldn't communicate directly with Florence Swaters and had to go through her agents.

Silly question or not. I would like to hear what OJ, or other readers, consider to be an equitable solution as this dispute ceased being about justice for the benefit of the late Karl Kleve a long time ago.

 

I believe 50% is fair in this case, but I believe OJ is unhappy with his share of these 50%.

 

"a nice ending with perhaps a mutual sense of dignity and honor" 12.10.2010

Can you expand on this ?

 

+1

 

I think this whole parts issue is a red herring??

Who would care about the original battered parts when the car was complete and operable out of Classiche??

I doubt it made a large difference to any interested buyer, that wire frame with the old tank and battered hood?

I mean really.......what monetary value would those have in a stand alone sale?
They were window dressing here. Who made the wire frame, and what was the delivery time on that item???

Hmmmmm?


Crikky, the HOA had EXPIRED on it's own, all of your "very well thought out" questions are not relevnt..it expired with the turning pages of the calendar. He did not have to file anything, anywhere.

The ball was in Bonhams court, they dropped it...it quit bouncing...it rolled away, out of bounds.
They touched it last.

 

Putting ego's aside,

One way to resolve the matter would be for Bonhams to dig deep in to their own pockets and buy the title from OJ for an amount equivalent to 1/2 the sale price of the vehicle and pay Gardner/ Swaters the remaining proceeds from the auction as per their agreement. That should keep everyone reasonably happy as everyone gets what they were expecting to get.

And it would allow Bonhams to give the title to the US buyer, who presumably would cease wanting to get his money back - (do you really want someone with effectivley unlimited legal resources giving you a hard time ?)

The cost would be around 5m pounds (tax deductible to Bonhams) but it could be done and sorted in a week. Maybe a good idea too if you're trying to sell the biz at the moment and want to minimise adverse publicity around a 300M transaction...

Or you could dig in and drag the thing on for years, pay millions in legal fees and perhaps loose anyway and pay millions more in damages, or win and probably not be able to recover the fees anyway .....

M

 

The 1954 Ferrari 375 plus #0384 was “ NOT” listed as stolen in 1989, 1990, 1991 and beyond.

In order to list a motor vehicle stolen in the USA you would need the following:
- the year, the make, the model, the chassis number,and a brief description including the color accompanied by “Proof of Ownership” showing either the title, tag number, or registration number.

In a complaint to the Green Township Police Department dated 1/24/1989, Mr.Kleve claimed a Ferrari allegely stolen without proof to support that claim. Mr. Kleve referenced the item with:
- an incorrect year as "1955";
- an incorrect model, as a "Grand Prix",
- an incorrect description;
- an incorrect color;
- ‘NO KNOWN CHASSIS NUMBER’
- ‘NO PROOF OF OWNERSHIP’.

Because Mr. Kleve could NOT produce proof of ownership, that failure made it ‘IMPOSSIBLE’ to create a stolen car report to log into the NCIC crime computer.
The proof has already been displayed in the Ferrari Chat pages along with the lack of a title.
The proof that was posted that the car could ‘NOT’ have been listed stolen is on page # 16 dated 10-20-2010 and is located at post # 303. The report plainly states that the comp.(complainant) did not have a serial number available at the time of the report.
Thus, the Police Department of Green Township could not enter the item in the NCIC crime computer as a stolen car.
It was later discovered that Kleve never had a title, bill of sale, license plate, vehicle registration or proof of insurance.
So, lets say it again, The Ferrari 375 plus was not listed stolen in 1989 or 1990, 91,92, and beyond.

 

Kleve's proof of ownership via normal documents is irrelevant... he can show unchallenged custody and former lineage to his possession... It is Green Township that was myopic in it's requirements in failing / refusing or arriving at a satisfactory way to create an entry marking the car as stolen... it is the failure of the system to be flexible, it was short sighted to provide alternate ways or details of entry. There are other examples of blocking the entry of property theft into the crime computer, mostly by those lacking the initiative to seek out alternate ways to enter theft info. The most obvious is the 4 digit vin number, will not be accepted by the system without a work around.

 

So you are saying that possession is nine-tenths of the law?

 

It would not surprise if Kleve bought the car under a Bill of Sale as it was not a car for being street operated. As such it was not going to get or need a license plate. It would also be possible that the car had never been registered by Kimberly or Hively as they would have never used it as a street car.

None of that alters that it was legitimately Kleve's property.

 

Hey guy you are wrong.

The police report of the theft was made, and on Feb. 24, 1989 the VIN was added to FBI and law enforcement files -- as well as the rather extensive info about ownership and recent history. Even you can get a copy of those FBI documents with a FOIA request.

The FBI recovered the original dataplate.

The ONLY people who claim otherwise were some of those involved in its theft. Plus the identity of Karl Kleve's car as 0384AM was widely known and publicized in the Ferrari coimmunity - despite the few erroneous captions in some literature as to which Ferrari 375 Plus won or raced in a particular race, NOT as to which car Karl Kleve owned. Such erroneous race-related articles were written by people who were not eye-witnesses to Karl Kleve's car, and their erroneous work was later used as an excuse to launder a stolen car. There was never any doubt at the factory that there was no Ferrari 375 Plus 0394AM ever made -- thus it could never have been in a race, no matter what author wrote the article. Any books that claim the Ferrari factory made an 0394AM car simply did not bother to check with the Ferrari factory. It is called doing your homework - not all authors do it.

In 1989, the "seller" (Guy Anderson Worldwide Exchange) initially told the FBI he could not identify the "hulk" that he "acquired" - of course, that same "seller" never showed the "Bill of Sale" dated Feb. 22, 1989 to the FBI.

Joe


*
Image Unavailable, Please Login
Image Unavailable, Please Login

 

See below.
Image Unavailable, Please Login
Image Unavailable, Please Login
Image Unavailable, Please Login

 

OJ: was the car stolen in 1986 but only reported to the police in 1989?

The police report reads as if the car was stolen by two white guys in their mid 30's to 40's with a U-Haul truck on January 13th, 1989.

Or you posted the 1986 FRM which says the car was stolen on January 6, 1986.
Image Unavailable, Please Login

 

Karl Kleve's 1954 Ferrari 375 Plus #0384AM was not stolen in 1986. There is no theft report filed in 1986 because the person who tried to report it could not prove he owned it, so, that person, a well known CA Ferrari dealer, ran a couple ads in Roush's Ferrari Market Letter ("FML"), hoping to "smoke out" the whereabouts. That CA Ferrari dealer had thought he bought it from another Ohio racing shop owner, who claimed to own it, but did not - he did not even possess it. In fact, 0384AM was still sitting on Kleve's property at the time, up until its theft on Saturday morning, January 13, 1989. The thief used a come-along to drag it out of its resting place and a rented U-Haul box truck to move it. By the next weekend, it was put on a trailer and bound for Atlanta.

All of this is well documented in contemporaneous files, confessions, and transcripts.

Maybe Guy Anderson could post some of his pics of 0384AM as it sat in that storage unit in Atlanta, right after being moved from a shop where it was attracting too much attention as it was a "hot" car, figuratively and literally.

Below is yet another contemporaneous June 1989 Cavallino magazine report of the theft of Karl Kleve's 1954 Ferrari 375 Plus #0384AM to the Ferrari Community, properly identified by its known VIN. Read the article - it predicts why one day Swaters would have to come out in the open and take the stolen car out of the "0394AM" closet.

Joe

*
Image Unavailable, Please Login
Image Unavailable, Please Login

 

Prior to the creation of the HoA in March 2013, each party to the HoA (other than Bonhams) was the owner of a set of competing claims to the ownership of #0384 and related parts and papers. On February 12, 2010, the Swaterses filed the Swaters v Lawson action in the Hamilton County Circuit Court, seeking to vindicate their claims against Kristi Lawson. You can see the Circuit Court's Docket, for the Swaters v. Lawson case, here. (Question: is "Swaters" pronounced "Swa-tay" or Swa-turs"?)

On February 25, 2010, Lawson and Ford entered into Sales and Options Agreements. I don't know if copies of these Agreements have been previously posted to this thread. But in Post #1473, Joe Ford has posted a copy of a "Change #3 To the 2.25.10 Sales and 2.25.10 Options Agreements." Change #3 is dated January 15, *2011*. I am attaching a copy of Change #3 below. From Change #3 we can infer that the Sales and Options Agreements dated February 25, *2010*, included the following terms:

* Lawson "is the sole remaining listed owner of the old Ohio title document 3105234917 (her sisters have quitclaimed their interests to her)";
* Lawson owns 30% of "the car" (aka the "interests described by Items 1, 2, 3, and 4 in those [February 25, 2010] Agreements"); and
* Lawson owns 20% of "the interests described as Item 5 in those Agreements."

We can also infer that, as of February 25, 2010, Lawson and Ford consider Ford to be the owner of the remaining 70% of "the car," and the owner of the remaining 80% of the "Item 5" interests. And we can infer that Ford and Lawson did not pretend that their bilateral agreements could have any effect on the Swaterses' interests in "the car," or in the "Item 5" interests.

On March 18, 2010, Lawson filed a Counterclaim in the Swaters v. Lawson case, seeking to vindicate her claims against the Swaterses.

On March 25, 2010, Joe Ford filed a motion to intervene, seeking to vindicate his claims, whether against the Swaterses or Lawson or both. On April 8, 2010, the parties filed an Agreed Order to grant Ford's motion to intervene.

On April 23, 2010, Judge Nadel entered a stipulated order, entitled the “Agreed Status Quo Order.” A copy is attached. The Order's operative provision was that "Except with prior written approval of this Court, the Parties shall not take any action that would disturb the status quo of the Vehicles, Parts, and/or Documents until a final determination of claims and ownership rights is made by this Court."

The Order defined "the Vehicles" to mean "any Ferrari 375 Plus Grand Prix Roadster having Serial Number 0384AM or 0394AM"; "parts" to mean "any parts that are or ever were a part of, attached to, or related to the Vehicles"; and "documents" to mean "title documents, registration documents, bill of sale documents, and any other type of ownership interest or ownership transfer document that relates to the Vehicles, Parts, or both."

On December 14, 2010, Jacques Swaters passed away. Florence Swaters carries on alone.

On January 15, 2011, Ford and Lawson modify their February 25, 2010 Sales and Options Agreements with Change #3. (What are the terms of "Change #1" and "Change #2"? We don't know.) Change #3 included the following terms:

* Lawson sells her 30% of "the car" (aka "Items 1, 2, 3, and 4") to Ford, in exchange for (a) a lien of 10% on "the net proceeds from the disposition by sale or settlement of the car," and (b) a payment from Ford of $75,000, to be paid on or before January 29, 2011. Thereafter Lawson will own 0% of "the car" and Ford will own 100%.

* In exchange for this same $75,000 payment and 10% lien, Lawson also sells to Ford one-half of her 20% of "the interests described as Item 5." Thereafter Lawson will own 10% of the "Item 5" interests and Ford will own 90%.

* As of January 15, 2011 Lawson continues to be "the sole remaining listed owner of the old Ohio title document 3105234917." After Ford has paid the $75,000 to Lawson, Lawson will sign the back of the title to indicate a sale to Ford. Ford will re-title the car in his name alone, in a state of his choosing, with Lawson listed as a lienholder of 10% of the net proceeds from the disposition of the car by sale or settlement.

* Ford and Lawson agree that Ford's attorney, Taft, will take whatever steps are necessary to inform Judge Nadel of the changes to their February 25, 2010 Sales and Options Agreements, “so as to remain in compliance with the Status Quo Order."

As already mentioned, the operative term of the Agreed Status Quo Order is that "the Parties shall not take any action that would disturb the status quo of the Vehicles, Parts, and/or Documents until a final determination of claims and ownership rights is made by this Court." In the absence of a Court order to approve the change of Ford’s share from 70% to 100%, Change #3 would be a violation of this term.

In Post #1473, Ford writes that he and Lawson thought that Taft had done what needed to be done to avoid a violation of the Status Quo Order, and that he and Lawson did not learn otherwise for many months. (Missing from Post #1473 is a statement that Ford did pay the $75,000 to Lawson, on or before January 29, 2011.)

Looking at the May 8, 2012 Lawson-Ford title and the related Assignment/Odometer Certification/Application for Certificate of Title (copies attached), we see that as of May 8, 2012, Lawson and Ford considered Ford to be the "Previous Owner," and the "Transferor," of "0384AM 1955 Ferrari." The date on which title was changed from Lawson being "the sole remaining listed owner of the old Ohio title document 3105234917” (as of January 15, 2011) to Ford being the "Previous Owner," and the "Transferor" (as of May 8, 2012) we do not know.

Returning to the Circuit Court's Docket in Swaters v. Lawson: on April 27, 2011, Ford files a "Motion to Clarify or Amend Status Quo [Order]." We can assume this was a written request to Judge Nadel to allow Change #3 to go forward, such that the 30/70 split that was in effect when the Agreed Status Quo Order was entered, would be changed to a 0/100 split, with a 10% lien in favor of Lawson. But we don't know for sure.

On May 9, 2011 someone -- presumably Swaters -- files an Opposition to Ford's Motion. On May 10 Ford files a Reply.

On May 19, Swaters files a motion asking Judge Nadel to find Ford and Lawson in contempt. The conduct giving rise to this motion is unknown, but it could be a claim that Change #3 constituted a violation of the Agreed Status Quo Order.

On July 13, 2011, Judge Nadel entered an Order. I don't know the terms of this order. However, on August 2, 2011, Judge Nadel enters an Order (copy attached), essentially back-dated to July 13 (“nunc pro tunc”), to explain his July 13 Order. He writes that the intent of the July 13 Order was "to return the parties to the status quo as of the date of the Agreed Status Quo Order." To accomplish this, Judge Nadel writes that Lawson and Ford’s February 25, 2010 Sales and Options Agreements "are in full and legal effect per the status quo of those agreements at the date of the Agreed Status Quo Order," and that "Change #3 is declared null and void." In other words:

* Lawson owns 30% of "the car" (aka the "interests described by Items 1, 2, 3, and 4 in those Agreements"); and

* Lawson owns 20% of "the interests described as Item 5 in those Agreements."

On May 8, 2012, Ford as the "Previous Owner" and the "Transferor" of "0384AM 1955 [sic] Ferrari" transfers title to Lawson and Ford as the joint owners of #0384. Also on May 8, 2012, Herbert Haas -- acknowledged by Chris Gardner to be his attorney at the time -- filed a copy of the Lawson-Ford title with the Court. A copy of this filing is attached. The filing includes a copy of the Lawson-Ford title. The Lawson-Ford title does not include an indication that Haas’s client Chris Gardner is a lienholder with respect to #0384. Haas represents that the Lawson-Ford title has, "pursuant to the Court's Order . . . returned the title to the status of the 04/23/2010 . . . Agreed Status Quo Order. . . ."

As of March 24, 2013, Swaters, Ford, Lawson, Gardner, and Bonhams have entered into the famous Heads of Agreement. A copy is attached. A transcription of the HoA appears in Post #1594, on Page 80.

When you read the HoA, keep in mind the rules of construction of a contract. The basic principle is that a party incurs no contractual obligation that he or she did not agree to incur, and that he or she has no rights to any performance on the part of the other parties, that they did not agree to perform. This rule is sometimes described as the “meeting of the minds” rule. The rules of contractual construction generally seek to implement the meeting of the minds rule. They seek to enforce against a party only the duties he or she agreed to undertake, and to give to a party only such rights as the other parties agreed to give.

The first rule of construction is that we are required to give words their plain meaning. We are also required to give meaning to every part of an agreement, construing the agreement as a whole. This means that we can’t ignore the parts that we think ought to be ignored, in order to reach what we personally consider to be a just result. We are also bound to the rule that the words of the contract state the entirety of the parties’ agreement. In other words, we can’t add provisions that we think ought to be added. Only where there is ambiguity -- where a provision can have more than one meaning -- are we allowed to look at evidence outside the four corners of the agreement.

With these rules in mind, we see that the operative terms of the HoA are as follows:

* Swaters, Lawson, Ford, and Gardner, as principals, appoint Bonhams as their agent to collect the car, and the related parts and documents, in order “to sell the Car by public auction at no reserve at the Goodwood Revival in September 2013.” (Para. 3.)

* “BC will arrange for the Car and all parts (including a spare engine), document, records and photographs in her possession to be transported to Bonhams for storage until the Car has been sold and paid for.” (Para. 5.)

* “The OC Parties will arrange for all parts (including original body panels), fuel tank and documents, records and photographs in their possession to be transported to Bonhams.” (Para. 5.) This includes, presumably, “All documents in the OC parties’ possession relating to the purchase and ownership of the Car by Mr. Kleve, including the original Bill of Sale for his purchase of the Car from Jim Kimberley [sic], probate orders and all US license, title and other documents evidencing the ownership of the Ferrari by Mr. Kleve and his heirs.” (Para. 11.) (I say “presumably” because the quoted term is in fact a sentence fragment.)

* All parties (except Bonhams) are, to “provide at this initial signing, separate complete list [sic] of all parts, records, legal paperwork, titles, historical files, archives, spare parts and tools to be included and consigned to Bonham’s [sic].” (Para. 10.) Later (presumably) the parties are to submit a “comprehensive list” of all the items they are contributing to “the whole of the Ferrari package to be auctioned,” such list to state “all parts, documents, certificates, Bill of Sales, Archive materials both originals, certified copies and copies” that the party is contributing. (Para. 8.) The parties are to “work closely together to resolve all problems relating to the Car’s history and ownership and present a detailed and transparent account of the Car’s ownership from new.” (Para. 4);

* “The proceeds of sale of the Car will be divided in the proportion 50% to the BC Parties [Swaters] and 50% to OC [Lawson, Ford, and Gardner].” (Para. 6.)

* “All claims and counterclaims between BC and OC whether already asserted or not, are hereby waived and permanently extinguished on distribution of the funds from the sale to the signers of this agreement. BC and the OC parties will promptly enter an agreement discontinuing all action in Ohio in such form as is appropriate under Ohio law.” (Para. 2.)

* “This Agreement shall be governed by English law and any dispute in relation to it will be determined by the High Court of Justice in London.” (Para 12.)

The HoA was a private agreement; it was not a stipulation for a court order.

The HoA is clear on the scope of Bonhams’ agency: that it extended only to conducting a sale of the car “by public auction at no reserve at the Goodwood Revival in September 2013.”

Ford has made a great deal of Swaters’s breaches of the terms regarding transparency and cooperation. We can leave the factual merit of these claims for another post. On the other hand, we know for a fact that, four months after the HoA was signed, Swaters had lost patience with Ford and Lawson’s performance of their part of the HoA. We know this because the docket in the Swaters v. Lawson case shows that Swaters filed, on July 23, 2013, a motion seeking a court order to enforce the terms of the HoA. This filing date was less than two months from the Goodwood Festival, held on September 13, 14 and 15, 2013.

We also know from this filing that Swaters herself ignored the term of the HoA, that “any dispute in relation to [the HoA] will be determined by the High Court of Justice in London.”

Although some participants to this thread have criticized Joe Ford with respect to his non-performance under the HoA, Swaters’s motion would have tended to lock down the parties’ future performance, pending Judge Nadel’s ruling. Put another way, if Swaters had been trying to persuade Ford and Lawson to perform between the late March signing of the HoA and the mid-July timeframe, Swaters should have known that all efforts at cooperation were likely to cease with the filing of her motion. Nor would we expect a litigant who, like Ford or Swaters, has been required to file opposition to a motion, to simultaneously file a motion regarding the same subject. Much less would we expect the litigant to file this motion in a foreign country thousands of miles away.

Judge Nadel entered an order -- in fact a Judgment -- fairly quickly, on August 18, 2013, to be precise. A copy is attached. Unfortunately, Judge Nadel, Swaters, Ford, and Lawson all overlooked the agreement in the HoA, that “any dispute . . . will be determined by the High Court of Justice in London.” As the Ohio First District Court of Appeal ruled on May 28, 2014, this provision meant that Judge Nadel had no jurisdiction to enter any orders to relieve Swaters’s claims arising under the HoA. In fact, the only provision of Judge Nadel’s Judgment which did not exceed his jurisdiction was the provision that “the September 21, 2011 . . . Preliminary Injunction and the April 23, 2010 Agreed Status Quo Order are deemed lifted and of no force and effect.” In other words, since August 2013 Lawson and Ford have been free to change the title to #0384 as they please.

Sorry this post ran so long. This tends to happen whenever one tries to review an extended litigation like this. To those who have made it to the end, please share any corrections or other disagreements.

 

My questions are well-thought indeed. Can you answer any one of them? I asked the questions so I can understand the issues that are being evaded here. Surely, there are a few hundred people monitoring this thread, and not all the posts have been clearly understood.

Beside myself, I'm sure others are waiting for Ocean Joe Frod's well-thought-out answers. Primarily, to know the truth.

 

Thank you Bill for your summary. Given the circumstances, what do you consider Swaters should have done when faced with Fords persistent delay to ship the parts ?

Put simply, was there a better option ?

 

Excellent summary, clear you are a lawyer working even outside billable hours!

I believe we should expect any Ohio judge to use any reasonable argument to declare itself uncompetent, as the case is so complicated that best to rely on the chosen jurisdiction that appear in the HOA to solve it! In simple terms called kicking the can down the road.
Do you share this view?